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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
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
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
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