Dr. Charles O'Mahony:

I thank the Chairman. I am delighted to have this opportunity to address the committee on this important proposed legislation. In the time allocated to me, I will speak to four issues, the first of which is the intermediate category as proposed under the general scheme. The second is the need for a proper complaints mechanism, which is not currently provided for. I will speak then briefly on the mental health tribunals and the lack of provision in the mental health legislation for people who experience mental ill-health in the context of the criminal justice system.

As regards the intermediate category, the lack of human rights safeguards for persons who are considered voluntary under the Act and have difficulties in making decisions is one of the weak points within the Mental Health Act 2001. The creation of the new intermediate category has the potential to provide a level of safeguard for people who are voluntary patients but de facto detained, with no oversight of their detention. However, it remains to be seen whether the provisions in the general scheme will address this human rights issue. We are concerned there is a potential risk that the introduction of this new intermediate category could widen the net of coercion. Voluntary persons who are considered to lack capacity under the Mental Health Act could be supported by the provisions in the 2015 Act to make decisions. That could be an alternative to this intermediate category. The touted liberty of safeguard processes that are being developed could also support people. One of concerns in respect of the intermediate category is that it could potentially broaden the net of coercion for people rather than addressing this big human rights issue in the proposed legislation.

The next issue I wish to address is that of the direct complaints mechanism. It is a source of much disappointment that the general scheme does not contain any provisions that will support persons subject to the legislation to raise issues or complaints based on their lived experiences of mental health services. It is clear that one of the major deficits of the 2001 Act since it was enacted in 2006 is that it does not provide for a dedicated independent direct complaints mechanism. In the absence of a specific complaints mechanism, people who use mental health services must lodge their complaints with the internal HSE complaints mechanism.

If a complainant is not satisfied with the outcome, he or she may then make a complaint to the Ombudsman. Section 16 of the Mental Health Act provides that a person must be notified of his or her entitlement to communicate with the Inspector of Mental Health Services during the annual inspection. This is not an adequate safeguard because by the time the inspectorate team comes to the approved centre, the person may have been discharged. There are no robust powers for the inspector or her team in terms of responding to complaints. This is a major deficit in the 2001 Act and the Bill.

In addition, although Ireland has now ratified the UN Convention on the Rights of Persons with Disabilities, UNCRPD, it has not ratified the optional protocol that would allow people with lived experience of mental health issues and services to make a complaint directly to the UNCRPD committee. The failure to ratify the optional protocol means an essential layer of accountability is absent. Members of the committee should be advocating for the Government to ratify the optional protocol to the convention.

I refer to mental health review boards which, under the Bill, will replace mental health tribunals. From a human rights perspective, these tribunals or review boards are an essential procedural safeguard for persons who are detained under the 2001 Act. They relate to vindicating the right to liberty, which is lost in these circumstances. However, I draw the attention of the committee to a recent systematic review of international literature in respect of mental health tribunals. It highlighted significant issues with these tribunals, indicating the tribunals are not adequate in protecting human rights but, in fact, can deny human rights, legitimise coercion and restrict access to justice. That is a real problem. The research identified that the participatory potential of the tribunals can be undermined by medicalised and legal cultural practices that dictate and dominate their proceedings. There is also a lack of meaningful involvement of detained persons in the tribunal hearings and they result in a sense of powerlessness and procedural unfairness. Cultural change is required to ensure the tribunals comply with international human rights law. The qualitative research in Ireland on this issue reflects the experience here.

In deciding whether to affirm or revoke an order, the tribunal psychiatrist at these hearings is generally asked for his or her opinion in the first instance. In evidence before the tribunal, the responsible consultant psychiatrist is almost always asked to submit his or her evidence before the person detained has an opportunity to speak at the tribunal hearing. In some cases, the person may wish to speak first but be told by the tribunal to wait until the responsible consultant psychiatrist has given his or her evidence.

In my view, the proposed changes to mental health tribunals as outlined in the Bill are insufficient to make the current tribunal systems effective in vindicating the rights of persons subject to the 2001 Act. The current mental health tribunal process does not adequately protect the human rights of persons admitted under the 2001 Act. The data show that less than 12% of admission orders are revoked at hearing stage. Tribunal composition is heavily weighted towards the medical model and professional opinion, with little or no multidisciplinary or advocacy input. Psychiatrists and legal professionals are dominant within the tribunals and the voice of the layperson is very much marginalised. A layperson cannot be a chairperson of the tribunal. In addition, the psychiatrists and lawyers get paid more than the laypeople. There are several changes needed in respect of tribunals to make them more meaningful for people and for them to be an effective human rights mechanism to review the detention of people.