Ms Molly Joyce:

I thank the Chair for the invitation and opportunity to meet with the subcommittee today to discuss our recently published report, Access to Rights for People Detained in Secure Forensic Mental Health Facilities in Ireland. We are delighted that two of the report authors, Professor Eilionóir Flynn and Eilís Ní Chaoimh, are also available to participate in today’s meeting. We will do our best to respond to any questions that committee members may have following our brief opening remarks.

By way of background, the Irish Penal Reform Trust, IPRT, is Ireland’s leading NGO campaigning for rights in the penal system and the progressive reform of Irish penal policy. Our core message is that a penal system that protects and promotes human rights, equality and social justice and relies upon prison only as a measure of last resort will contribute to safer communities for everyone.

I will outline the background to the report. In 2021, we commissioned the University of Galway’s centre for disability law and policy to carry out a scoping study to examine whether people currently detained in forensic mental health facilities in Ireland, namely the Central Mental Hospital, CMH, can access their rights. The research was funded by the Irish Human Rights and Equality Commission, IHREC, and the report builds on the gaps identified in our 2020 report, Making Rights Real for People with Disabilities in Prison. I have some copies of this report available if members would like to see it. It is important to note at the outset that this research was limited in scope. It involved a literature review mapping relevant Irish laws and policies as well as small-scale qualitative research involving interviews with key stakeholders within the forensic mental health system. Such stakeholders included staff at the National Forensic Mental Health Service, advocates working in the area of disability rights, a lawyer, and two organisations working in this area. This made up a total of ten interviewees. Regrettably, the limited scope of the project meant interviews with individuals actually detained in the CMH were not possible on this occasion.

The report ultimately aims to provide an overview of the issues arising around access to rights for people detained in the CMH, as well as an analysis of Ireland’s rights obligations under the UN Convention on the Rights of Persons with Disabilities, CRPD, and other human rights instruments. It was as much an educational experience and a knowledge-gathering experience for the IPRT as well as sharing that more widely.

With the findings of the report, what clearly emerges is that people with psychosocial disabilities who are currently detained in the CMH are not afforded their rights as enshrined in the CRPD and international human rights law. Examples of such rights breaches include issues around the process by which a person may come to be detained in the CMH. During the research, concerns were raised particularly as to the legal bases upon which people are detained, with the lawyer interviewed questioning whether there is any regular oversight of this. The report also notes concerns in respect of several of the pathways by which a person may come to be detained in the CMH. For example, it points out there is no limit on the length of time a person can be detained who is detained under a finding of unfitness to plead, with one staff member referring to a person in the CMH who appears to have been unfit to plead since the 1970s.

The second area of the findings concerned the breach of rights in daily life once a person is detained within the CMH. Concerns identified by the report included the fact that physical side effects of medications are not always fully explained to patients, the presence of an especially paternalistic culture within the CMH as compared with community-based services, and the ongoing use of seclusion and restraint within the CMH, with that hospital using such tools at a higher rate than other approved centres and failing to use alternatives where possible. The report argues that the latter in particular breaches Articles 15, 16 and 17 of CRPD that pertain to freedom from torture, freedom from violence and abuse, and the protection of the integrity of the person.

The third area of findings was around the review of detention and discharge from the CMH. Criticisms of the current structure and processes included no lay members or people with lived experience on the Mental Health (Criminal Law) Review Board; the minimum length of time of six months required between reviews, which was considered to be too long; decision-making being arguably paternalistic or overly concerned with risk; the process by which a person may be returned to the CMH following a conditional discharge, which is decided by one individual who is the CMH clinical director, although there is some oversight provided by the review board on those occasions; and the limited availability of placements and support within the community to which people can move on.

Throughout the report, the overarching point is made that the UN Committee on the Rights of Persons with Disabilities is clear that disability-specific forms of deprivation of liberty contravene the Convention on the Rights of Persons with Disabilities.

Furthermore, while in Ireland we often characterise our processes for referral to the CMH as a means of vindicating the rights of persons with disabilities, according to the committee’s interpretation of the convention, these processes in fact amount to a violation of rights under CRPD. The report accordingly recommends, as Ireland’s ultimate objective, the abolition of the current forensic mental health system. We, in the IPRT, recognise that this is very challenging and are realistic in our view that abolition of the current system is not going to happen overnight. The report, therefore, makes 17 more short-term recommendations that we hope would better align Ireland’s current system with the CRPD and bring us closer to a system that is ultimately CRPD-compliant.

These 17 recommendations are set out at pages 62 to 67 of the report. They include practical measures such as: increasing transparency by requiring the CMH to publish annual statistics on the legal basis for detention of all patients; starting to offer mental health treatment outside the CMH for those unfit to plead or found not guilty by reason of insanity or both; providing meaningful support to enable people to participate in the trial process rather than being deemed unfit to plead; ensuring access to independent advocacy within the CMH; mandating that all reported uses of seclusion and restraint include information on the alternatives attempted prior to the use of these practices; including people with lived experience on the Mental Health (Criminal Law) Review Board; and reviewing ongoing detention of individuals on a more frequent basis.

It is hoped that these suggested reforms, alongside the other recommendations in the report, will help work towards the overarching goal of ending involuntary treatment, and abolishing Ireland’s separate tracks of detention for all people with disabilities, including those labelled with a mental disorder. It is also hoped that the report's recommendations may lessen the harms caused to people currently detained in our forensic mental health system.

I wish to note, and emphasise, that this report was finalised before publication of the final report of the high-level taskfForce to consider the mental health and addiction challenges of those who come into contact with the criminal justice sector. This report was also finalised before the opening of the new CMH in Portrane earlier this month.

The IPRT welcomes both the high-level task force and the opening of the new CMH as progressive steps that will help address some of the current problems we see. In regards the task force, we particularly welcome the various recommendations made to better divert people from the criminal justice system wherever possible. However, we are disappointed that the proposed measures were not really costed within that report.

The opening of the new CMH has addressed some of the concerns raised in this report around the physical infrastructure of the old building in Dundrum. In particular, we welcome the fact that certain design features of the new CMH will address issues around patients' open access to the bathroom at night-time and better affords them privacy, which was a specific matter raised by interviewees for this report.

It is clear that both reforms will need to be met with adequate resourcing to ensure that the actions of the task force report can actually be implemented and that good practice can be maintained and progressed in the new CMH. It is also clear that while welcome, these steps alone will not be enough to address many of the issues identified in this report, and they will not in themselves create the broader cultural or paradigm shift towards CRPD recognition that is needed.

I thank the sub-committee for its invitation to attend and its attention to these important issues. I, and my colleagues from the University of Galway, are very happy to answer any questions that arise.