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Dignity, human rights and the limits of mental health legislation

  • Brendan D. Kelly (a1)
Abstract

A right is an entitlement that one may legally or morally claim. Human rights are of particular importance in mental health care owing to the existence of laws that permit involuntary admission and treatment under certain circumstances, and compelling evidence of persistent social exclusion of some individuals with mental disorder. Ireland’s mental health legislation, which is currently under review, meets most international human rights standards in areas of traditional concern (involuntary admission and treatment) but not in other areas (especially social and economic rights). These deficits would be addressed, at least in part, by replacing the principle of ‘best interests’ with the principle of ‘dignity’ as the over-arching principle in Irish mental health legislation. Such a change would help ensure that decisions made under the legislation actively facilitate individuals with mental disorder to exercise their capabilities, help promote human rights and protect dignity. Even following such a reform, however, it is neither practical nor realistic to expect mental health legislation alone to protect and promote all of the broader rights of individuals with mental disorder, especially social and economic rights. Some rights are better protected, and some needs better met, through social policy, mental health policy and broader societal awareness and reform.

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Copyright
Corresponding author
*Address for correspondence: B. D. Kelly, Associate Clinical Professor of Psychiatry, Department of Adult Psychiatry, University College Dublin, Mater Misericordiae University Hospital, 62/63 Eccles Street, Dublin 7, Ireland. (Email: brendankelly35@gmail.com)
References
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Bartlett, P (2010). Thinking about the rest of the world: mental health and rights outside the ‘first world’. In Rethinking Rights-Based Mental Health Laws (ed. B McSherry and P Weller), pp. 397418. Hart Publishing: Oxford and Portland, Oregon.
Beyleveld, D, Brownsword, R (2001). Human Dignity in Bioethics and Biolaw. Oxford University Press: Oxford.
Bowen, P (2007). Blackstone’s Guide to the Mental Health Act 2007. Oxford University Press: Oxford.
Campbell, T (1994). Mental health law: institutionalised discrimination. Australian and New Zealand Journal of Psychiatry 28, 554559.
Campbell, T, Heginbotham, C (1991). Mental Illness: Prejudice, Discrimination and the Law. Dartmouth Publishing Group: Aldershot.
Cassese, A (1992). The General Assembly. In The United Nations and Human Rights: A Critical Appraisal (ed. P Alston), pp. 2554. Clarendon Press: Oxford.
Council of Europe (1950). European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms). Council of Europe: Strasbourg.
Craven, C (2009). Signs of paternalist approach to the mentally ill persist. Irish Times (27 July), p. 18.
Daly, A, Walsh, D (2013). HRB Statistics Series 20: Activities of Irish Psychiatric Units and Hospitals 2012. Health Research Board: Dublin.
Department of Health (1984). The Psychiatric Services: Planning for the Future. Stationery Office: Dublin.
Edmundson, W (2004). An Introduction to Rights. Cambridge University Press: Cambridge.
Feldman, D (2002). Civil Liberties and Human Rights in England and Wales, 2nd edn.Oxford University Press: Oxford.
Fennell, P (2007). Mental Health: The New Law. Jordan Publishing Limited: Bristol.
Fennell, P (2010). Institutionalising the community: the codification of clinical authority and the limits of rights-based approaches. In Rethinking Rights-Based Mental Health Laws (ed. B McSherry and P Weller), pp. 1350. Hart Publishing: Oxford and Portland, Oregon.
Flynn, D, Smith, D, Quirke, L, Monks, S, Kennedy, HG (2012). Ultra high risk of psychosis on committal to a young offender prison: an unrecognised opportunity for early intervention. BMC Psychiatry 12, 100.
Fiorillo, A, De Rosa, C, Del Vecchio, V, Jurjanz, L, Schnall, K, Onchev, G, Alexiev, S, Raboch, J, Kalisova, L, Mastrogianni, A, Georgiadou, E, Solomon, Z, Dembinskas, A, Raskauskas, V, Nawka, P, Nawka, A, Kiejna, A, Hadrys, T, Torres-Gonzales, F, Mayoral, F, Björkdahl, A, Kjellin, L, Priebe, S, Maj, M, Kallert, T (2011). How to improve clinical practice on involuntary hospital admissions of psychiatric patients: suggestions from the EUNOMIA study. European Psychiatry 26, 201207.
Harding, E (2010). Acts of contradiction. Guardian (Society) (http://www.theguardian.com/society/2010/mar/31/mental-health-law-vulnerable-people-intervention). Accessed 17 May 2014.
Health and Social Care Information Centre (2013). In-Patients Formally Detained in Hospitals Under the Mental Health Act 1983. Health and Social Care Information Centre/National Statistics: London.
Hunt, L (2007). Inventing Human Rights. W.W. Norton and Company: New York and London.
Ishay, MR (2004). The History of Human Rights. University of California Press: Berkeley and Los Angeles.
Jabbar, F, Doherty, AM, Aziz, M, Kelly, BD (2011). Implementing the Mental Health Act 2007 in British general practice: lessons from Ireland. International Journal of Law and Psychiatry 34, 414418.
Jabbar, F, Kelly, BD, Casey, P (2010). National survey of psychiatrists’ responses to implementation of the Mental Health Act 2001 in Ireland. Irish Journal of Medical Science 179, 291294.
Joint Committee on Justice, Defence and Equality (2012). Report on Hearings in relation to the Scheme of the Mental Capacity Bill. Houses of the Oireachtas: Dublin.
Kelly, BD (2007). Penrose’s Law in Ireland: an ecological analysis of psychiatric inpatients and prisoners. Irish Medical Journal 100, 373374.
Kelly, BD (2011). Mental health legislation and human rights in England, Wales and the Republic of Ireland. International Journal of Law and Psychiatry 34, 439454.
Kelly, BD (2014). The Assisted Decision-Making (Capacity) Bill 2013: content, commentary, controversy. Irish Journal of Medical Science [Epub ahead of print] doi:10.1007/s11845-014-1096-1
Kennedy, H (2012). ‘Libertarian’ groupthink not helping mentally ill. Irish Times (12 September), p. 14.
Kogstad, RE (2009). Protecting mental health clients’ dignity – the importance of legal control. International Journal of Law and Psychiatry 32, 383391.
Linehan, SA, Duffy, DM, Wright, B, Curtin, K, Monks, S, Kennedy, HG (2005). Psychiatric morbidity in a cross-sectional sample of male remanded prisoners. Irish Journal of Psychological Medicine 22, 128132.
McSherry, B (2010). The right of access to mental health care: voluntary treatment and the role of law. In Rethinking Rights-Based Mental Health Laws (ed. B McSherry and P Weller), pp. 379396. Hart Publishing: Oxford and Portland, Oregon.
Mental Health Commission (2008). A Recovery Approach Within the Irish Mental Health Services. Mental Health Commission: Dublin.
Nussbaum, MC (1992). Human functioning and social justice: in defence of Aristotelian essentialism. Political Theory 20, 202246.
Nussbaum, MC (2000). Women and Human Development: The Capabilities Approach. Cambridge University Press: Cambridge.
Nussbaum, MC (2011). Creating Capabilities: The Human Development Approach. Harvard University Press: Cambridge, MA.
O’Donoghue, B, Moran, P (2009). Consultant psychiatrists’ experiences and attitudes following the introduction of the Mental Health Act 2001. Irish Journal of Psychological Medicine 26, 2326.
Osiatyński, W (2009). Human Rights and Their Limits. Cambridge University Press: Cambridge.
Pearsall, J, Trumble, B (editors) (1996). The Oxford Reference English Dictionary, 2nd edn. Oxford University Press: Oxford.
Petrila, J (2010). Rights-based legalism and the limits of mental health law. In Rethinking Rights-Based Mental Health Laws (ed. B McSherry and P Weller), pp. 357378. Hart Publishing: Oxford and Portland, Oregon.
Porter, R (2002). Madness: A Brief History. Oxford University Press: Oxford.
Prins, H (2010). Can the law serve as the solution to social ills? Medicine, Science and Law 36, 217220.
Ramsay, H, Roche, E, O’Donoghue, B (2013). Five years after implementation: a review of the Irish Mental Health Act 2001. International Journal of Law and Psychiatry 36, 8391.
Richardson, G (2010). Rights-based legalism: some thoughts from the research. In Rethinking Rights-Based Mental Health Laws (ed. B McSherry and P Weller), pp. 181202. Hart Publishing: Oxford and Portland, Oregon.
Robins, J (1986). Fools and Mad: A History of the Insane in Ireland. Institute of Public Administration: Dublin.
Rose, N (1985). Unreasonable rights: mental illness and the limits of law. Journal of Law and Society 12, 199218.
Seedhouse, D, Gallagher, A (2002). Clinical ethics: undignifying institutions. Journal of Medical Ethics 28, 368372.
Shorter, E (1997). A History of Psychiatry: From the Era of the Asylum to the Age of Prozac. John Wiley and Sons: New York.
Steering Group on the Review of the Mental Health Act 2001 (2012). Interim Report of the Steering Group on the Review of the Mental Health Act 2001. Department of Health and Children: Dublin.
Torrey, EF, Miller, J (2001). The Invisible Plague: The Rise of Mental Illness from 1750 to the Present. Rutgers University Press: New Jersey.
United Nations (1948). Universal Declaration of Human Rights. United Nations: Geneva.
United Nations (1991). Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. United Nations, Secretariat Centre For Human Rights: New York.
United Nations (2006). Convention on the Rights of Persons with Disabilities. United Nations: Geneva.
Viney, M (1968). Mental illness. Irish Times (23–30 October).
Weller, P (2010). Lost in translation: human rights and mental health law. In Rethinking Rights-Based Mental Health Laws (ed. B McSherry and P Weller), pp. 7172. Hart Publishing: Oxford and Portland, Oregon.
Whelan, D (2009). Mental Health: Law and Practice. Round Hall: Dublin.
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Irish Journal of Psychological Medicine
  • ISSN: 0790-9667
  • EISSN: 2051-6967
  • URL: /core/journals/irish-journal-of-psychological-medicine
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