Mental health litigation outdated

Absence of contemporary mental health capacity litigation weakens the rights of those with mental health difficulties. By Justin Frewen and Dr. Anna Datta.

In legal parlance, capacity refers to the ability to make a legally enforceable decision on one's own behalf. In everyday language, capacity is an individual's competence to competently express one's decision as well as understand its potential consequences. In terms of mental health capacity, this includes understanding, assessing and evaluating various available treatment options and other information pertinent to one's decision. 


Capacity is a crucial issue in determining the optimal balance between an individual's right to engage in autonomous decision-making with the ethical and professional obligation to safeguard them from harm from themselves or others.



(Picture: Minister of State with responsibility for mental health services, John Moloney)

As Dr. Mary Keys highlighted at the 2007 NUI Galway Law and Mental Health Conference: "The fact of being regarded by others as having capacity to make our own decisions is what permits us to participate as fully as possible in society and what protects us from unwanted interferences with our choices, whether we have a mental disorder or not."

Capacity goes straight to the core of our ability to be regarded as full members in society and exercise our rights as citizens of equal standing with our peers.

Current Situation 

The only Irish legislation on mental health capacity is the 1871 Lunacy Act. The absence of contemporary capacity legislation is highly detrimental for mental health service users. Individuals who become wards of court under the Lunacy Act are prohibited from marrying or even entering into litigation unless cleared by the High Court. 

According to Inclusion Ireland, there are six major areas where the lack of capacity legislation can lead to difficulties for mental health service users: in accessing education; making medical decisions; managing money; voting; involvement in relationships; and testifying in court. 

2008 Mental Capacity Bill

The 2008 Mental Capacity Bill was intended to help pave the way for a contemporary legislative structure that would facilitate an effective decision-making system on capacity. It was also seen as an important step towards realising Ireland's responsibilities with respect to its international human rights obligations.

According to the Minister for Justice, Dermot Ahern: "The Government has indicated its intention to ratify the Convention [on the Rights of Persons with Disabilities] as quickly as possible and has stated that the reforms proposed in the 2008 Scheme will enable the State to meet its obligations under the UN Convention on the Rights of Persons with Disabilities, insofar as it relates to legal capacity issues."

However, the Mental Capacity Bill has still not been enacted. 

Determining Capacity

The 2008 Mental Capacity Bill provided for the capacity of individuals to be determined in a judicial setting. Where individuals were deemed to have insufficient capacity to engage in autonomous decision-making, the court could assume responsibility for their decisions. 

Although potentially an improvement on the current situation, this would risk impacting negatively upon the autonomy, liberty and privacy of mental health service users. It is therefore imperative effective safeguards are put in place to protect their rights. 

Despite its positive presupposition in favour of an individual's capacity, the 2008 Bill fails to clearly specify what is meant by incapacity. To ensure a transparent and effective process for determining incapacity, such a definition is clearly required.

It is also critical that effective and enforceable protections are established to ensure those assessed as incapacitated are subject to minimum interference in their lives and free from arbitrary or unjustifiable interventions. 

Judicial Approach

The emphasis on a judicial approach over the clinical setting has aroused concern. Professor Harry Kennedy contends that the proposed legislation appeared “to place the legal system at the centre of patient care and welfare” while neglecting capacity issues that arise in everyday cases and clinical practice. This problem is accentuated by an emphasis on long-term over short-term incapacity. 

According to Professor Kennedy a Mental Capacity Bill should cover three areas of decision-making: “welfare, financial affairs and decisions regarding the person” with attention paid to both temporary and longer term incapacity. Furthermore, legislation should ensure “emergency intervention in life threatening situations” and urgent interventions to “relieve suffering or preserve dignity.”

Resource Allocation

Training would need to be provided for those engaged in determining capacity and an independent monitoring and review system set up to ensure capacity tests are effectively and fairly implemented. This would require an investment of potentially substantial resources. 

Given the current parlous state of the Irish economy together with the difficulties experienced in accessing the required funds to implement the Irish mental policy A Vision for Change, this could prove a serious challenge. Indeed, obtaining adequate financing could well prove the most serious impediment to successfully realising any new capacity legislation.        


Capacity legislation should provide the required authority to provide suitable and legally sanctioned treatment for incapacitated patients. It is essential, however, that Irish capacity legislation provides a responsive and accountable structure that guarantees the safety, security. rights and well-being of individuals categorised as incapacitated.