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The Legal Powers to Detain the Mentally Ill in Ireland: Medicalism Or Legalism?

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The Legal Powers to Detain the Mentally Ill in Ireland: Medicalism Or Legalism? The Legal Powers to Detain the Mentally Ill in Ireland: Medicalism or Legalism? Jennifer Brown PhD 2015 The Legal Powers to Detain the Mentally Ill in Ireland: Medicalism or Legalism? Jennifer Brown, BA, LLM Thesis submitted for the award of PhD School of Law and Government, Dublin City University Supervisor: Dr. Adam McAuley January 2015 I hereby certify that this material, which I now submit for assessment on the programme of study leading to the award of Ph.D. is entirely my own work, and that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge breach any law of copyright, and has not been taken from the work of others save and to the extent that such work has been cited and acknowledged within the text of my work. Signed: Jennifer Brown ID No.: 55432219 Date: 14th January 2015 ACKNOWLEDGEMENTS Most importantly, I wish to thank the service users and psychiatrists who gave up their valuable time and agreed to be interviewed in order to further this research and provide greater knowledge on mental health tribunals in Ireland. Their contribution adds tremendously to the worth of the thesis. I am indebted to the School of Law and Government, Dublin City University. The award of a PhD scholarship and continued support by all members of staff made the research possible. My supervisor, Dr Adam McAuley, dedicated copious hours to reviewing drafts and offering essential advice; the thesis would not be what it is today without him. Special thanks to Professor Philip Fennell and Dr Olivia Smith, having such experts examine the thesis was an honour. I would also like to thank my family and friends for their unwavering support. In particular, Andrea Brown, Sharlene Gough and Jakob VanReenen provided endless positivity and encouragement. Finally, the ability to answer Granny Brown‘s question ―have you finished college yet?‖ in the affirmative and witness her pride made the whole process worthwhile. TABLE OF CONTENTS Abbreviations 1 Abstract 2 Chapter 1 Introduction 3 1.01 Introduction 3 1.02 Research Question 5 1.03 Methodology 5 1.04 Medicalism & Legalism 7 1.05 Constitutional Rights, Human Rights & Mental Health Detention 11 1.06 Thesis Outline & Structure 14 1.07 Language & Terms Used 15 1.08 Conclusion 16 Chapter 2 Origins of Medicalism & Legalism in the Legal Powers to Detain the Insane 17 2.01 Introduction 17 2.02 The Origins of Government Provision for the Insane; Workhouses & Prisons 17 2.03The Birth of the Asylum 1817 to 1830 20 2.04 Moral Treatment & the Medical Take-Over 23 2.05 Psychiatric Professionalisation & the Origins of Medicalism 25 2.06 The Law & the Insane 30 2.07 Explaining Asylum Expansion 35 2.08 Psychiatry‘s ‗Second Revolution‘ & the Medicalisation of Insanity 40 2.09 Conclusion 43 Chapter 3 Influence of Medicalism in the Mental Treatment Act 1945 44 3.01 Introduction 44 3.02 Mental Health Policy in Independent Ireland 45 3.03 The Influence of Medicalism on the Mental Treatment Act 1945 46 3.04 Influence of Medicalism in the Operation & Interpretation of the Mental Treatment Act 1945 57 3.05 Challenges to the Dominance of Medicalism 64 3.06 Impact of Challenges to the Dominance of Medicalism in Ireland 1980 to 2001 74 3.07 Conclusion 84 Chapter 4 Influence of Legalism in the Mental Health Act 2001 86 4.01 Introduction 86 4.02 The Influence of Legalism on the Mental Health Act 2001 87 4.03 Influence of Legalism in the Operation of the Mental Health Act 2001 97 4.04 The Influence of Legalism on the Judicial Interpretation of the Mental Health Act 2001 102 4.05 Conclusion 111 Chapter 5 The Nature of Mental Health Tribunal Operation: Medicalism or Legalism? 113 5.01 Introduction 113 5.02 Legalism & Reviewing the Decision to Detain under the European Convention on Human Rights 114 5.03 Mental Health Tribunal Review of Detention 118 5.04 The Influence of Medicalism & Legalism in the MHT Provisions & Judicial Interpretation of the Provisions 122 5.05 Influence of Medicalism & Legalism in the Operation of Mental Health Tribunals 129 5.06 Conclusion 149 Chapter 6 Conclusion 151 6.01 Embedded Medicalism 151 6.02 Challenges to Legalism 152 6.03 The Need for Further Research 153 6.04 Future Possibilities 154 Bibliography 158 Appendices Appendix A Mental Health Commission Correspondence 1 Appendix B Ethical Approval 2 Appendix C Concise Research Proposal 3 Appendix D Organisations/Persons Contacted for Interview 7 Appendix E Recruitment Advertisement 9 Appendix F Plain Language Statement 10 Appendix G Informed Consent Form Service User 13 Appendix H Interview Topic Guide Service User 15 Appendix I Informed Consent Form Treating Psychiatrist 19 Appendix J Interview Topic Guide Treating Psychiatrist 21 ABBREVIATIONS CRPD- Convention on the Rights of Persons with Disabilities ECHR- European Convention on Human Rights ECtHR- European Court of Human Rights GP- General Practitioner MHC- Mental Health Commission TP- Treating Psychiatrist SU- Service User 1945 Act- Mental Treatment Act 1945 2001 Act- Mental Health Act 2001 1 ABSTRACT The Legal Powers to Detain the Mentally Ill in Ireland: Medicalism or Legalism? Jennifer Brown The thesis examines the extent to which medicalism and legalism have influenced the legal powers of detaining the mentally ill in Ireland from the late eighteenth century to date. Utilising academic literature, government publications and original interviews with treating psychiatrists and service users, the thesis provides the first comprehensive socio-legal analysis of the law concerning mental health detention, the interpretation of the law and the operation of the law in Irish society. It transpires that a specific approach to the legal powers of detention became embedded in Irish society‘s response to mental illness. This approach provided psychiatry with significant power in the detention, care and treatment of the mentally ill and society ardently relied on psychiatry to manage the perceived social problem caused by mental illness. Simultaneously, legal powers of detention dominated by medicalism have been ingrained in the Irish psyche. Over time, however, legalism evolved as a result of the widespread critique of psychiatry‘s role in the detention of the mentally ill. Furthermore, a strong line of international law established that the rights of the mentally ill in detention required greater protection. These developments were subsequently enshrined in the Irish law governing the legal powers of detention and new provisions were introduced that reduced psychiatry‘s control in the detention of the mentally ill. Despite these changes to the law governing the legal powers of detention, it has been found that further movement in the direction of legalism will require a more comprehensive shift among those applying the law, in particular, the judiciary and the psychiatric profession. 2 CHAPTER 1 INTRODUCTION 1.09 Introduction In analysing the evolution of the legal powers to detain the mentally ill, it becomes apparent that various historical and contemporary legal and sociological influences have had a determinate effect on the manner in which this is regulated in Ireland. Concurrently, the law has played a definitive role in the evolution of the Irish mental health system, indeed, as Fennell has outlined, in terms of its influences, discourse, ideas and structures the law is a source of the mental health system.1 This is particularly valid in the Irish case which in 1817, through legislation, established one of the oldest, enduring and extensive public asylum systems in the world. Similar systems were not seen in England until 1845 and Scotland until 1857.2 Consequently, Reuber believes that it is of little surprise that the country boasting the oldest public asylum system in the world came to have the highest percentage of their population in mental health detention in the world.3 However, despite the early legal establishment of an asylum system, from this point onwards Irish legislation tended to lag behind that of the developed world. In the creation of new legislation there was significant reliance on English legislation that was often ten years its predecessor. Thus, for example, many of the provisions of the Mental Treatment Act 1945 are broadly similar to that of the English Mental Health Act 1930. Similarly, the establishment of mental health tribunals and a Mental Health Commission under the Mental Health Act 2001, are akin to the tribunals established under the English Mental Health Act 1959 and the Commission established under the Mental Health Act 1983. 1 Phil Fennell, ―Law and Society: The Legal Constitution of the Psychiatric System‖ (1986) 13(1) Journal of Law and Psychiatry 35. 2 Markus Reuber, ‗Moral Management and the ‗Unseen Eye‘: Public Lunatic Asylums in Ireland, 1800-1845‘ in Elizabeth Malcolm and Greta Jones (eds), Medicine, Disease and the State in Ireland 1650-1940 (Cork University Press 1999) 208-233. 3 In 1955 Ireland had 7.1 persons per 1000 of the population in in-patient psychiatric treatment, the second highest position on the list was the USSR which had 6.1, followed by the US that had 5.1 and then Northern Ireland which had 4.4. WHO, Annual Epidemiological and Vital Statistics (1955); Markus Reuber, ―The architecture of psychological management: the Irish asylums (1901-1922)‖ (1996) 26 Psychological Medicine 1179, 1187. 3 The nineteenth century witnessed a period of rapid asylum expansion not only in Ireland but also in Britain, Europe and America.4 For some, this expansion has been attributed to the effects of an urbanising society‘s increased sensitivity to the ever growing public presence of the insane in the crowded cities and towns.5 This sensitivity emerged at a time when society‘s attitude to the suffering of those who had previously been outcast became more humane.6 Additionally, it has been claimed that an actual increase in the incidence of insanity occurred during this time as a result of rising alcoholism, rising rates of neurosyphillis and possibly rising rates of schizophrenia.7 Given the apparent ‗epidemic of insanity‘ in Ireland, a question naturally arises as to its source.
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