This is the first of four papers devoted to human rights and the Mental Health Act 2001. Paper 1 looks at the historical background to the Mental Health Act 2001, with particular focus on the Mental Treatment Act 1945 and human rights concerns that contributed to the development of the Mental Health Act 2001. Paper 2 looks at the central provisions of the Mental Health Act 2001 as they relate to civil commitment of adults, with reference to appropriate case law. Paper 3 focuses on specific human rights issues stemming from the Mental Health Act 2001 and its interpretation in Irish courts. Paper 4 examines issues related to the interpretation of the Mental Health Act 2001 and presents overall conclusions in relation to human rights and civil mental health law in Ireland. References and a full table of legislation will be published with Paper 4.

Introduction

In Ireland, there was scant specific legislative provision for individuals with mental illness throughout the 17th and 18th centuries.¹ There was some limited accommodation available in selected houses of industry (or workhouses), but this was generally inadequate and inappropriate to needs.² In 1944, an anonymous psychiatrist, writing in The Bell, an Irish literary periodical, noted that: “In 1728 cells were erected in the Dublin house of industry, and later similar provisions were made in houses of industry throughout the country. These, however, could not be classified as institutions. The term ‘cells’ is sufficiently informative.”³

In the absence of dedicated services or accommodation, many individuals with mental illness tended towards lives of vagrancy, homelessness and destitution.¹ The first systematic change to this situation occurred in 1787, when the Prisons Act empowered Grand Juries to establish lunatic wards in houses of industry, but by 1804 lunatic wards had been established only in Dublin, Cork, Waterford and Limerick.⁴ In Cork, however, a pioneering psychiatrist, Dr William Saunders Hallaran, founded the Cork Lunatic Asylum in 1791^5,6 and this was followed by a steady expansion in private asylum capacity, with the opening of a private asylum in Cork in 1799 and further private facilities in Bloomfield, Donnybrook (1810), Farnham House, Finglas (1814) and Hampstead House (1826).⁷

Following from the development of private asylums, the period between 1820 and 1898 was to be a time of intensive legislative activity in relation to public psychiatric institutions in Ireland. The need for extensive and systematic reform had been highlighted in 1804 by a Select Committee of the House of Commons which recommended the establishment of provincial asylums so as to minimise the numbers of mentally ill residing in prisons and houses of industry.⁸ In 1815, Ireland’s first large public asylum, the Richmond Asylum, was opened at Grangegorman, Dublin, and patients were admitted on the basis of a certificate of insanity which was signed by a medical practitioner, clergyman or magistrate.

There was still evidence of unmet need, however, and a bill to establish a nationwide network of asylums was presented by William Vesey Fitzgerald and passed on July 11, 1817.¹ This legislation, which was subsequently amended in 1820, 1821, 1825 and 1826, was the first substantive step in the establishment of district asylums throughout Ireland. In more specific terms, the Lunatic Asylums (Ireland) Act 1821 empowered the Lord Lieutenant (chief administrator of British government in Ireland) to direct the establishment of asylums that were to be funded by both central government (nationally) and grand juries (locally). In 1825, the first asylum was established in Armagh and, over the following decade, a further seven asylums were opened in Limerick, Belfast, Derry, Carlow, Portlaoise, Clonmel and Waterford, at a total cost of £245,000.⁷

The Lunacy (Ireland) Act 1821 directed that applications for admission to an asylum needed to be accompanied by a medical certificate of insanity and a statement from next-of kin confirming poverty; applications were then considered by the physician and manager of the asylum, and presented to the board for acceptance.⁸ The Criminal Lunatics (Ireland) Act 1838 articulated a separate form of admission for individuals who were considered to be dangerous; such individuals could be detained indefinitely by two justices of the peace, who had the option of using medical evidence to inform their decision. The involvement of justices of the peace and/or various forms of judicial authority was not unique to Ireland: similar laws were introduced at around this time in Canada,⁹ Australia,¹⁰ Switzerland¹¹ and France.¹² In Ireland, however, it was soon apparent that the ‘dangerous lunacy’ procedures were commonly misused¹³ and in 1867 the Lunacy (Ireland) Act made it mandatory to seek a medical opinion prior to committal. 

Notwithstanding these measures, the number of individuals residing in psychiatric hospitals increased inexorably as the 19th century progressed: in 1851 there were 3,234 individuals in Irish asylums and by 1891 this had increased to 11,265.¹⁴ This trend continued well into the 20th century: by 1961, one in every 70 Irish people above the age of 24 was resident in a psychiatric hospital.^15,16 While there were similar problems with high committal rates in other countries, including France, England¹⁷ and the US,¹⁸ Ireland’s admission rates were especially high at their peak, and especially slow subsequently to decline.¹⁹ This was a cause of significant governmental concern and lead to the establishment of several commissions of enquiry including the Commission on the Relief of the Sick and Destitute Poor including the Insane Poor (1927) which recommended the establishment of a system of auxiliary mental hospitals in old workhouses, development of outpatient clinics and introduction of a voluntary admission status.^8,19

The Mental Treatment Act 1945

One of the key mechanisms employed in order to reform Ireland’s asylum system in the early 20th century was a far-reaching revision of legislation governing admission procedures and administration of Irish asylums; this reform found its central expression in the Mental Treatment Act 1945. In general terms, this act aimed “to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom and to provide for other matters connected with the matters aforesaid”. More specifically, the Act introduced several important reforms to mental health services by: 

• Establishing a process of voluntary admission to psychiatric facilities 
• Underlining and strengthening the mandatory role of medical practitioners in certifying involuntary admissions 
• Reforming the processes whereby individuals could be transferred to inpatient forensic psychiatric care and 
• Making myriad changes to the administration and governance of psychiatric facilities.

One of the most immediately significant reforms was the introduction of a voluntary admission status, which permitted individuals to present to hospital, be admitted on a voluntary basis, and leave whenever they wished. A ‘voluntary patient’ was “a person who, acting by himself or, in the case of a person less than 16 years of age, by his parent of guardian, submits himself voluntarily for treatment for illness of a mental or kindred nature” (section 1). Voluntary admission procedures had already been introduced in Great Britain (1930) and Northern Ireland (1932), opening up the possibility of greater respect for patient dignity and individual human rights in these jurisdictions; Ireland’s Mental Treatment Act 1945, at least in theory, opened up similar possibilities in the Republic of Ireland.^8,20

The Mental Treatment Act 1945 also articulated two revised procedures for involuntary admission; one procedure for ‘persons of unsound mind’ and another for ‘temporary chargeable patients’. An application for the involuntary admission of a ‘person of unsound mind’ to a public hospital could be made “(a) by the husband or wife or a relative of the person to whom the application relates, or (b) at the request of the husband or wife or a relative of such person, by the appropriate assistance officer, or (c) subject to [certain] provisions... by any other person” (section 14; chapter 1). Within 24 hours of receiving an application, an “authorised medical officer” (eg. GP) had to “visit and examine the person to whom the application relates” and either “make the recommendation” or “refuse the application”. This recommendation had to state that “such a person is of unsound mind, is a proper person to be taken charge of and detained under care and treatment, and is unlikely to recover within six months from the date of such examination”. The individual then had to be transported to the psychiatric hospital (by the police, if necessary) and a “medical officer of the hospital” had to “examine the person, and shall thereupon either (a) if he is satisfied that the person is a person of unsound mind and is a proper person to be taken charge of and detained under care and treatment, forthwith make in the prescribed form an order; or (b) in any other case refuse to make such an order”.

If the application was made out to have the individual admitted to “a private institution” or “as a private patient in a district mental hospital” (ie. fee-paying), there was a requirement for “two separate examinations” by registered medical practitioners at the “recommendation” stage (section 14; chapter 2). Regardless of whether the individual was committed as a public or private patient, the ‘person of unsound mind’ procedure resulted in indefinite involuntary detention, without automatic review. If the individual wished to challenge their status, they had to write to either the Inspector of Mental Hospitals (who could look into the matter and report to the Minister for Health, who could then order the discharge of the patient) or selected other parties, including the Minister for Health, president of the High Court, registrar of wards of court, health board (ie. local health authority), a visiting committee of a district mental hospital or the Inspector of Mental Hospitals.

Alternatively, the patient could instigate legal action in the Irish courts under, for example, article 40 of the Constitution of Ireland, which deals with ‘personal rights’ and states that “all citizens shall, as human persons, be held equal before the law”. The State “guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. In addition, “no citizen shall be deprived of his personal liberty save in accordance with law” and “the State guarantees liberty for the exercise of the following rights, subject to public order and morality: (i) The right of the citizens to express freely their convictions and opinions; (ii) The right of the citizens to assemble peaceably and without arms; (iii) The right of the citizens to form associations and unions” (Constitution of Ireland, article 40).

Temporary chargeable patients

The second procedure for involuntary admission under the Mental Treatment Act 1945 was the ‘temporary chargeable patient’ procedure which resulted in detention for six months, but could be revoked prior to that at the discretion of the treating psychiatrist (section 14; chapter 3). The procedure for the involuntary admission of a ‘temporary chargeable patient’ was essentially similar to that for a ‘person of unsound mind’ except that in the ‘recommendation’ the ‘authorised medical officer’ had to state that the individual “requires, for his recovery, not more than six months suitable treatment”. Once the patient was transported to the psychiatric hospital, staff could “receive and take charge of the person to whom the order relates and detain him until the expiration of a period of six months from the date on which the order is made or his earlier removal or discharge by proper authority or death...” This detention could be extended “by a further period not exceeding six months or by a series of orders; the aggregate of which shall not exceed 18 months”. Again, there was no automatic review of detention, and if the individual wished to challenge their status, they had to either write to the Inspector of Mental Hospitals or the other parties outlined previously, or else instigate legal action in the Irish courts.

In the event that a detained patient required medical or surgical treatment in another hospital, the hospital authority could “direct and authorise the removal of such person to any hospital or other place where the treatment is obtainable; a person removed under this section to a hospital or other place may be kept there so long as it is necessary for the purpose of his treatment and shall then be taken back to the place from which he was removed unless it is certified by a registered medical practitioner that his detention is no longer necessary” (section 16; section 208).

The Mental Treatment Act 1945 also mandated transfer of detained patients from one psychiatric hospital to another psychiatric hospital “for the purpose of obtaining special treatment”; this could include, but was not limited to, transfer to Ireland’s only forensic psychiatry inpatient facility, the Central Mental Hospital, Dundrum, Dublin (section 16; section 206). The Mental Treatment Act 1945 also articulated a procedure for committal to the Central Mental Hospital for individuals who were not already detained in psychiatric hospitals but were “charged with an indictable offence” and in respect of whom “evidence is given which, in the opinion of the justice, constitutes prima facie evidence (i) that such person committed the offence, and (ii) that he would be unfit to plead” (section 16; section 207). Under such circumstances, “the justice shall by order certify that such person is suitable for transfer to the Dundrum Central Criminal Lunatic Asylum.” Following such an order, “the Minister shall require the Inspector of Mental Hospitals to visit such person and to make a report on his mental condition” after which “the Minister may, if he so thinks fit, by order direct and authorise the transfer of such person to Dundrum Central Criminal Lunatic Asylum”. Subsequently, “where the resident governor and physician of the Dundrum Central Criminal Lunatic Asylum and the Inspector of Mental Hospitals agree and certify that [the person] has ceased to be of unsound mind, the said governor and physician shall discharge such person”.

Human rights concerns following the Mental Treatment Act 1945

Overall, the Mental Treatment Act 1945 had the central effects of introducing a voluntary admission status and increasing medical involvement in procedures for involuntary admission. The legislation did not, however, articulate any right to automatic review of detention; as a result, the “person of unsound mind” procedure could result in indefinite and potentially life-long detention, without review, especially for individuals who lacked the mental capacity or financial resources to access the court system.²¹

Even when a detained patient accessed legal representation in order to challenge their detention in the High Court, section 260(1) of the Mental Treatment Act 1945, as amended by section 2(3) of the Public Authorities Judicial Proceedings Act 1954, stated: “No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care” (section 260; 1).²²

In 2008, several years after the Mental Treatment Act 1945 had been replaced by the Mental Health Act 2001, the Irish Supreme Court found that this section of the Mental Treatment Act 1945 had been unconstitutional, as it restricted grounds for challenging detention to two specific grounds (acting in “bad faith” or proceeding “without reasonable care”).^23,24 The Supreme Court stated that this was a disproportionate restriction on the detained patient’s right to access the courts where a fundamental right, liberty, had been restricted, and was, thus, contrary to article 6 of the Constitution of Ireland, which states: 

• All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good; 
• These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

Almost a decade earlier, in 1999, the Irish Law Society had already highlighted this problem, among several others, in a report entitled Mental Health: The Case for Reform.²⁵ The Law Society reviewed case law relating to the Mental Treatment Act 1945 as well as more recent international human rights legislation, and the following were their key suggestions for reform:

• That the criteria for involuntary commitment to a mental institution be more clearly defined or that detailed guidance on each of the criteria be provided
• That a ‘least restrictive alternative’ principle be introduced against which any decision to commit could be tested
• That a right to a minimum level of psychiatric service provision be introduced by statute
• That formal safeguards be extended to voluntary patients
• That measures be introduced to enable the proposed Mental Health Review Board to order ‘planned discharge’•
• That measures be introduced to encourage legal representation before the proposed Mental Health Review Board
• That a ‘general authority to act reasonably’ be introduced in relation to everyday care decisions regarding incapacitated adults
• That criteria or guidance be developed for a ‘best interests test’ in relation to healthcare decisions•
• That a right of appeal in relation to healthcare decisions be established in the first instance to the proposed Mental Health Review Board 
• That statutory restrictions on the taking of civil actions by mentally ill people be removed and that such civil action be facilitated by the Civil Legal Aid scheme•
• That a procedure be established whereby civil actions can be taken on behalf of mentally ill people by an official body at the request of the Mental Health Review Board.

These proposals were explicitly informed by both the European Convention on Human Rights and the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.²⁶ Many of these proposals were also consistent with the Irish government’s 1995 White Paper which outlined a proposed ‘new mental health act’ and openly acknowledged that the Mental Treatment Act 1945 did “not fully comply with this country’s obligations under international law”:

The changes in Irish law required to ensure full compliance with our obligations under the European Convention include a redefinition of the criteria for detention of mentally disordered persons, the introduction of procedures to review the decision to detain a person in a psychiatric hospital by a body independent of both the person who took the decision to detain and of the executive, an automatic review of long-term detention, and the introduction of greater safeguards for the protection of detained persons.²⁷

In 2000 these issues came more urgently into focus when the lack of automatic review of detention under the Mental Treatment Act 1945 formed the focus of a landmark case in the European Court of Human Rights. In this case, the applicant pointed to the lack of an automatic, independent review of psychiatric detention in Ireland and, when the Irish Supreme Court stated that this was not unconstitutional, the applicant took the case to the European Court of Human Rights to argue that this breached his rights under the European Convention on Human Rights.^28,29

A ‘friendly settlement’ was reached in 2000, under which the Irish State noted its obligations under the European Convention on Human Rights and undertook to pay an agreed compensatory sum to the applicant. Most importantly, the Irish State noted that the applicant was the first individual to bring this important issue in front of the European Court of Human Rights and that the applicant’s claim had been initiated prior to the publication of the Mental Health Bill 1999. This Bill led, in due course, to the Mental Health Act 2001 which, among other measures, introduced an automatic, independent review of detention for all detained patients. The central provisions of the Mental Health Act 2001, with reference to appropriate case law, will be explored in Paper 2.

See part 2 of this paper here.

See part 3 of this paper here.

See part 4 of this paper here.

Declaration of interest: none.