This is the mysterious story of the vanishing Act. Like any other Act, this one started life as a Bill, made its way quite normally through both Dáil and Seanad, and was signed into law by the President. Then it disappeared. Without a trace. No one even went looking for it. And today, few people know it even existed, writes Mary Raftery.
This is the extraordinary tale of the Health (Mental Services) Act, 1981. It involves the flagrant and deliberate flouting of the democratic will of the people, as expressed through the Oireachtas. It is, in short, a scandal.
The 1981 Act provided a range of safeguards and independent appeals for people locked up against their will in psychiatric hospitals. There had been numerous stories of people wrongly committed to psychiatric hospitals, often locked up there for years, with no rights and no way out. Successive governments had promised reform.
You'd be right to think that all of this sounds familiar. We have recently heard much about wrongful committal to psychiatric hospitals, particularly around the case of John Manweiler. Earlier this month he was awarded almost €3 million by the High Court for having been unlawfully detained and wrongly prescribed with medication.
Back in 1981, three years before John Manweiler's ordeal at the hands of the psychiatric profession began, the Oireachtas had passed the Health (Mental Services) Act precisely in order to prevent what happened to him and many others like him.
That Act had been voted through in the teeth of opposition from psychiatrists, who regarded the establishment of independent tribunals (with non-medical members) to review their diagnoses and committal orders as an unwarranted interference in their professional expertise. This opposition explains much of what became the ultimate fate of a measure designed to protect patients against the abuse of their rights by the psychiatric profession.
All Acts of the Oireachtas contain a provision whereby they must be enacted (or activated) by the relevant government minister. In the case of the 1981 Act, the minister for health at the time, Fianna Fáil's Michael Woods, simply never signed the section to enact it, and nor did any of his successors. So, while it existed as an Act, in reality it never became law.
It is, apparently, unique in this regard. Interviewed as part of an RTÉ documentary I made in 1992 on the issue, Adrian Hardiman (then a barrister, now a Supreme Court judge) said: "It is really unusual for this to happen to an entire Act . . . I'm sure it wasn't particularly welcomed by the mental health professionals at the time, but this Act has never been brought into force by the minister and is there on the statute books, a monument to the consensus of parliamentary opinion in 1981, but which other forces have operated to prevent from being brought into law."
Following that 1992 documentary, Fine Gael introduced a Private Members' Bill that contained safeguards for patients similar to those of the neutered 1981 Act. Fianna Fáil, again in government, voted against it and it fell. Despite many further accounts from people locked away in gross breach of their fundamental rights, psychiatric patients continued to be unprotected by law.
Throughout all of this, and indeed up to the present, the law governing involuntary committal to psychiatric hospitals has been the Mental Treatment Act of 1945. This confers enormous powers on GPs and psychiatrists to incarcerate people indefinitely, remove their civil rights, and treat them (injection, surgery, ECT) forcibly and without their consent.
During the 1990s a handful of people began taking cases on this issue to the European Court of Human Rights. The government was forced to admit that the absence of independent review and safeguards in the psychiatric committal process was a breach of the European Convention on Human Rights.
Which brings us neatly to the Mental Health Act, 2001, trumpeted as the solution to all problems around involuntary committal. But, lo and behold, almost four years later, the critical sections of this Act dealing with patient rights and safeguards have not yet been enacted by the Minister for Health, Mary Harney.
And the reason? Yes, you guessed it - opposition from the psychiatric profession. Twenty-five years after they successfully stymied the 1981 Act, they're at it again. They are refusing to participate in the three-person tribunal system, designed to review each involuntary committal. Under the 2001 Act, these tribunals cannot function without the involvement of psychiatrists.
However, their refusal to co-operate should no longer be allowed to stymie proper protection measures for patients. There are, after all, a number of other mental health specialists who could step into the shoes of psychiatrists perfectly competently on the new mental health tribunals and for the purposes of independent reviews of diagnosis.
The Government now has a simple choice to make. Does it continue, as it has for 25 years, to support at all costs the professional interests of psychiatrists? Or does it choose instead to defend the rights of highly vulnerable people who find themselves in desperate need of protection against those same psychiatrists?