Mental Health Acts - Perspectives from Mental Health and Law in Ireland and in Portugal.

Mental health legislation is a cornerstone to ensure that individuals with severe mental illness access proper care and treatment. Each country establishes their own legislation. We aimed to compare the Portuguese and Irish Mental Health Acts (MHAs). We reviewed the respective MHA and the literature. While the definition of mental disorder is similar in general, who, where, when and how one can be detained differ. Judges decide on detentions in Portugal, while consultant psychiatrists may do so in Ireland. Community-based compulsory treatment is possible and used in Portugal while it is not possible in Ireland. Pros and cons of each approach are discussed with a reflection on the protection of human rights. Further theoretical and empirical studies comparing systems in different jurisdictions would be helpful to deepen our understanding of the legislation and guide on how to better serve individuals with severe mental illness.

Application of the Paternalism Principle to Constitutional Rights: Mental Health Case-Law in Ireland.

In adjudicating on matters relating to fundamental constitutional or human rights, courts make important statements about the principles which apply. The principles articulated will have a profound impact on the outcomes of such cases, and on the development of case-law in the relevant field. In the fields of medical law and mental health law, various courts have moved away from deference to medical decision-making and paternalism to a person-centred rights-based approach. However, courts in Ireland have continued to interpret mental health law in a paternalistic fashion, praising paternalism as if it is particularly suitable for mental health law. This raises profound questions about judicial attitudes to people with mental health conditions and judicial reluctance to confer full personhood on people with disabilities. This article outlines case-law in Ireland regarding paternalism in mental health law and discusses the consequences for constitutional rights in Ireland.

The changing face of Capacity legislation in Ireland: algorithms for clinicians.

Capacity legislation in Ireland is evolving. The Assisted Decision-Making (Capacity) Act 2015 has been passed into law, but its main provisions are yet to be commenced. This paper compares the law and its practical implications currently and under the new legislation. Quick reference algorithms for frontline clinicians are proposed.

Challenges for people with intellectual disabilities in law enforcement interactions in Ireland; thematic analysis informed by 1537 person-years' experience.

BACKGROUND: People with intellectual disabilities (PWID) are over-represented in criminal justice systems globally. This over-representation reveals itself at once in the demographic make-up of prison populations, as well as those detained in police settings as suspects of crime. While it is well-established in international literature that individuals who find themselves in the latter scenario face particular challenges in negotiating the forensic formalities routinely followed by the police at the pre-trial stage of criminal proceedings on account of their impairments, the specific difficulties experienced by PWID as suspects within Ireland's criminal justice system has yet to be explained, or indeed, understood. In seeking to address this research lacuna, this paper yields an account of a qualitative study which was aimed at identifying the unique challenges which PWID face in their interactions with Law Enforcement Officials (LEOs) in Ireland. AIMS: This study aimed to elicit perspectives across a range of disciplines with regard to barriers for PWID interacting with LEOs in Ireland, and sought viewpoints on the content of a proposed awareness programme. METHODS: A survey using purposive sampling was used to elicit viewpoints from people from representative organisations for PWID, people working with voluntary organisations for PWID, healthcare professionals working with PWID and professionals from the criminal justice system (including members of An Garda Siochana, lawyers, members of the Irish judiciary and officials within the Airport Police). Data were anonymised at the point of collection. Qualitative thematic analysis was conducted to extract themes based on the data retrieved through the survey. RESULTS: Ninety-five (n = 95) responses were received from individuals reporting a cumulative experience of 1537 person-years. Respondents identified themselves as members of one of three groups; people working in a voluntary or representative organisation for PWID (n = 42, 44.2%); people working in healthcare (n = 31, 32.6%); and people working in law enforcement (n = 22, 23.1%). Three themes were identified from the qualitative thematic analysis. The first theme, "Barriers to Communication", identified challenges which PWID and LEO experience in their mutual interactions and communications with one another. The second theme, "Building Awareness and Skills", identified elements of an ID awareness programme for LEOs. The third theme, "Institutional and System Change", identified possible lines of innovation with respect to contemporary police practice and the availability of supports for both PWID and the LEOs who work with them. ORIGINALITY/VALUE: This study represents the first dedicated qualitative inquiry conducted on a multidisciplinary level into the barriers which healthcare professionals, legal professionals and disability advocacy groups perceive to be faced by PWID in their interactions with LEOs in Ireland. Consequently, the findings from this study will act as a valuable template in the direction of informing the development of an ID awareness programme for LEOs in Ireland. In addition, these research findings are expected to usefully inform the development of national policy and protocols in areas related to health, disability and justice. In offering a rich evidence-base for future policy initiatives, the timing of this study is particularly significant. The recent ratification by Ireland of the UN Convention for the Rights of People with Disabilities (UNCRPD), together with the synchronous emergence of an evolving emphasis on human rights-based policing at a national level in Ireland, has meant that Irish policymakers have a unique opportunity to re-imagine the pre-trial formalities of Ireland's criminal process in order to demonstrate an increased sensitivity to the needs of PWID. Securing equal access to justice for such individuals, it is important to emphasise, is a legal requirement pursuant to Article 13 of the UNCRPD. To the extent therefore that this study yields unique insights into the barriers faced by PWID in their interactions with LEOs, the results of this study are potentially generalisable to other jurisdictions that have ratified the UNCRPD and are developing policy to accord with Article 13.

The inherent jurisdiction of the Irish High Court: Interface with psychiatry.

The term "inherent jurisdiction" refers to a set of default powers, usually not set out in statute, which enables a court to fulfil its roles. We discuss recently reported cases where such power has been exercised by the Irish High Court and what this means for psychiatrists in practice. These cases demonstrate that (a) the Irish High Court can be involved in decision-making where there is a lacuna in mental health legislation and a lack of mental capacity; (b) when a minor has been placed by the Court in a specialist facility in the UK and then attains the age of 18 years, decisions can be based on mental capacity but not on preventative detention on the basis of risk; (c) complexities arise when definitions of mental disorder vary between jurisdictions, especially when the Court orders involuntary detention in a case where statute would not ordinarily allow this; and (d) the appropriate route to seek decision-making for adults with mental incapacity is through Ireland's "Ward of Court" process, although, on the face of it, this seems to be contrary to the approach taken in other cases in which inherent jurisdiction was used. Overall, while it is reassuring for state health services that they can seek to approach higher courts in respect of decision-making in complex cases, some of these decisions raise important ethical questions for psychiatrists who may be asked to treat patients detained under their care who may not have a treatable mental illness as their condition falls outside of mental disorder within Irish legislation. We recommend that clear guidance is made available to psychiatrists in light of these judgments, particularly as there is likely to be a reconsideration of cases where Irish patients are placed in the UK given the UK's planned departure from the EU.