The Gazette 1981

GAZETTE

SEPTEMBER 1981

The Entitlement of the Mentally Disabled (Paper to the Incorporated Law Society Symposium, "The Mentally Handicapped and the Law", 27th June 1981)

by

Dr. Jim Behan Consultant Psychiatrist, Eastern Health Board

"No man is an island . . . for each man's death diminishes

living situation and throughout the treatment process, to the retention and enhancement of his human dignity, privacy and of his need for support, shelter and, as appropriate, progression through a range of treatment and rehabilitation facilities. He is entitled to participate, or to refuse to participate, in the treatment process on the basis of informed consent and, even before entering the treatment process, where his entry is not by his own volition, he is entitled to judicial protection to ensure the appropriateness and correctness of the committal procedure. Finally, where he is deprived of his freedom on the basis that he requires treatment, it is increasingly clear that the institution in which he is confined must provide for his treatment actively and not merely operate as a place of passive custodial care. What is required to meet these requirements? As a corollary to the statement that the mentally disabled have the rights defined above, in a well ordered and developed society there would exist a reciprocal obligation and duty upon the State to provide for these rights. In my opinion, that extends to the clear obligation to utilise its resources in an informed and balanced manner so as to provide an adequate and minimum level of care and treatment services and facilities, based on modern advances in psychiatry and, to the widest extent possible, by the equitable distribution of available resources. Assuming that there had existed in this country the social and political will to meet the entitlements of the disabled, the institutionally oriented mental hospital system which yet prevails here would long since have given way to the development of a comprehensive community-based approach. The concept of a community-based psychiatric service is no longer new or progressive in enlightened societies. Developments in psychiatric treatment and techniques of intervention over the last 25 years have transformed the outlook for the mentally ill, enabling a community-based psychiatric service to become standard practice. Basically, such a service consists of the decentralisation of the various treatment functions from the traditional large mental hospital and its reorganisation on a more local geographical basis to provide for a more efficient, humanitarian and ultimately more economical delivery of mental health care. In the modern alternative community 185

me"

John Donne

T HESE well known lines provide a useful introduction to this paper for they remind us that any discussion on the rights of the individual mentally disabled person and his position in society today is, at the same time, a diagnostic enquiry into the present state of society itself. It is generally unrecognised but nonetheless a fact that the treatment of its vulnerable minority groups, such as the mentally ill, the mentally handicapped and the elderly, is in itself an index to the degree of development and civilisation of that society. If we consign such minorities to private islands of isolation, loneliness and alienation, where they are beyond our interest, awareness or concern, then not only is the rest of society diminished by their psychological death but it rests on an insecure, false foundation. As a starting point, it is fair to say that the mentally ill person should, as far as his illness or incapacity permits, be entitled to the full range of basic civil and human rights enjoyed by others. That these rights are subject to modification by virtue of his condition is evident but, when any basic rights are temporarily lost or suspended, such as the right to freedom, it is important to note that the mentally disabled person acquires other rights as a result. In addition to the basic rights enjoyed by others, as a member of a vulnerable minority by virtue of his illness or handicap, it is my belief that the mentally disabled person is particularly entitled to certain other rights. Generally these may be described as an entitlement to an adequate and minimum level of care, treatment and rehabilitation to a degree that is appropriate to his condition and which, in the light of present day knowledge of psychiatry, is calculated to enable him to function to the best of his potential and capacity. The mentally disabled person is entitled to expect that this process of care, treatment and rehabilitation will take place in an appropriate range of facilities, provided to the best extent possible by the informed and balanced utilization of the maximum amount of available resources. The implications of such a tentative definition are that the mentally disabled person is also entitled, both in his