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How is it that detention rates under mental health law in Finland are almost 20 times higher than in Italy? (Zinkler and Pribke 2002) Is it just the law, or is it the context in which the law sits? And how can one begin to compare frameworks?
These are all questions that have been lingering for some time; They have troubled an independent review of the Mental Health Act 1983 (Raines et al 2019) and are equally applicable when it comes to comparing regimes developed for detention under the Mental Capacity Act (Series 2022).
In a new paper (Davidson et al., 2024), Gavin Davidson and colleagues from Northern Ireland, the Republic of Ireland, Scotland and Australia use the example of the island of Ireland to begin trying to answer these questions. They do so by drawing on previous work designed to address three key questions:
- What information is currently available to enable exploration and comparison of legislation, policy and practice relating to mental health and mental capacity legislation on the island of Ireland?
- What should be included in outcome frameworks that enable common presentation and comparison of key variables relevant to mental health and mental capacity legislation?
- What specific data should be collected on the use of mental health and mental capacity legislation on both sides of the border to enable comparison and joint practice?
Mental health detention rates vary greatly in different countries, but why?
methods
The first question above is addressed by a working paper (Farrell et al., 2022), which includes an analysis of the broader contemporary policy and practice landscapes, as well as potential implications for future research.
The second was addressed by a rapid review (not available online) organized in three parts: existing international policies; What the results framework should include; and issues to consider for implementation.
The third question was addressed through a focused narrative review (Greenhalgh et al., 2018), which identified and analyzed the few previous attempts to collect and present comparable international data specifically on the use of mental health legislation. The present paper synthesizes the results of previous work.
Results
The structures for health and social care are similar in both the Republic of Ireland and Northern Ireland. The authors also note similarities between the two legal frameworks at play:
- In relation to mental health, the Republic of Ireland is recognized both by the Mental Health Act 2001 and the Mental Health (Northern Ireland) Order 1986 “Traditional ‘mental disorder’ and ‘risk’-based legal frameworks define the ways in which individuals are confined in in-patient settings.”
- More broadly, the Assisted Decision-Making (Capacity) Act 2015 (ADMCA) and the Mental Capacity Act (Northern Ireland) 2016 (MCANI) are also noted by the authors to be broadly similar in terms of their guiding principles and their operational approach. Assessment of capacity.
However, the authors intend that, in due course, MCANI should replace the Mental Health (Northern Ireland) Order 1986 for everyone aged 16 and over.
The following three implications are identified from the above findings:
- An agreed mental health dataset is needed to compare service need, service provision and outcomes for service users and carers.
- An opportunity to develop an agreed approach to the evaluation of the implementation of relatively new competency-based laws.
- Potential benefits of the development of a broad joint research agenda include addressing a number of key priorities, including:
“(i) legal frameworks and terms of service for children and young people;
(ii) implementation and effectiveness of new capacity-based laws;
(iii) the development and effectiveness of policies that support autonomy and reduce the need for coercive intervention;
(iv) Providing expert services and opportunities for all island cooperation.
In terms of what a comprehensive approach to mental health outcomes framework should include, the authors identify six key areas:
- social determinants of mental health;
- population needs;
- resources and inputs;
- operations and processes (for example, number of treatment sessions provided, length of inpatient admissions and regularity of tribunal hearings);
- professionally reported results; And
- Service user and carer perspectives on outcomes.
The authors note that data on mental health and the use of the Capaci Mentality Act focus on quantifying the use of powers rather than in a way that allows direct comparison of these metrics and other relevant data for broader understanding. context and, “In particular, the experiences and outcomes for service users and carers when these powers are applied and their impact over time.”
“A comprehensive strategy to develop a comprehensive, comprehensive, and aligned approach to collecting and analyzing data would benefit citizens, policymakers, and experts,” the study authors argue.
Conclusions
The authors suggest that recent developments in mental health and mental capacity legislation and policy across the island of Ireland provide an opportunity to put in place a comprehensive and aligned approach to collecting and analyzing data across the island of Ireland. They point to the identified potential benefit of aligning data on the island of Ireland:
It raises the possibility of seeking a broad international consensus about a core, common data set about the use of mental health and mental capacity legislation in other countries, allowing for greater comparison and learning. This type of cross-border collaboration and comparison also has the potential to demonstrate the benefits of aligning data for other areas of law, policy and practice.
Strengths and limitations
A particular strength of the article (and the work it produced) is that it brings a multi-disciplinary and multi-national perspective to examining the situation on the island of Ireland. Perhaps for historical reasons, direct comparisons of the two jurisdictions are rare, especially since their research within the two jurisdictions is entirely different from that of external scholars. It is also very useful to conduct research not only by those interested in black letter law, but also by those interested in how that law influences and influences social and cultural conditions. The authors are also aware of the limitations of the particular comparative exercise they have engaged in with respect to Ireland and the extent to which it is possible to generalize from such an exercise to consider implications for other jurisdictions, so they do not attempt to strain the data to produce results they cannot bear.
A limitation is that the research team did not include individuals who clearly identified as subject to both mental health or mental capacity frameworks. Given the article’s significant focus on the participation of such individuals in the development of the type of metrics proposed by the authors, the absence of such a voice is unfortunate. An example of such research could be designed for the development of tools that allow it to be examined “A relatively neglected but fundamental topic” (using the authors’ own words) paper with Davidson (Webb et al., 2020).
A key limitation of this research is the lack of co-production with people with lived experience.
Implications for practice
The two jurisdictions on the island of Ireland have engaged in different types of legal reform in parallel over a relatively small geographical area. Although they are currently on a parallel track, it is likely that they will start to change significantly, at least in formal legal terms, when MCANI becomes fully operational. At the time, Northern Ireland had no separate mental health legislation for those aged 16 and over. In contrast, a long period of law reform in the Republic of Ireland produced new capacity legislation that is much closer to the UN Convention on the Rights of Persons with Disabilities than MCANI, for example it lacks an ‘affirmative’ element. Its test for competence, and by seeking decision-making to reflect the will and preferences of the individual, rather than based on their best interests. But that law, the ADMCA (which has now been in force for almost a year) is the only law specifically set out in the Republic of Ireland to assess, treat and, where necessary, detain people with mental health conditions.
Given the potential – in principle – for a very radical divergence, this is a particularly opportune moment for the research leading to the current article to be published. If its recommendations are followed, it provides an important opportunity to identify the legal changes currently underway and to propose real change that is actually safe (and to ask what real change might look like).
Furthermore, and despite the modesty of the authors’ arguments for implications for practice outside the island of Ireland, the propositions they make are equally useful for those wishing to develop research and policy proposals in other countries. Initially, developing and applying the frameworks they set out would be too bright to undertake more widely in the United Kingdom.
Video conversation
Watch Alex Ruck-Kean talk to Gavin Davidson about how the mental health and mental capacity frameworks compare
Gavin and Alex from Ruck Keane on Vimeo .
Declaration of Interests
I know many of the researchers (Davidson, Donnelly, Farrell and Kelly) and have discussed comparative mental health and capacity issues with them in the context of my own research.
Links
Primary paper
Davidson, G, Agnew, E, Brophy, L, Campbell, J, Donnelly, M, Farrell, AM, Forbes, T, Froude, R, Kelly, B, & McCartan, C (2024). Comparing Mental Health and Mental Capacity Act Data Across Borders: Challenges and Opportunities. International Journal of Law and Psychiatry, 92101949.
Other references
Farrell, AM, Davidson, G, Donnelly, M, Agnew, E, Forbes, T, & Frowde, R (2022). Mental health policies and legislation on the island of Ireland. Edinburgh School of Law Research Paper(2022/07).
Greenhalgh, T, Thorne, S, & Malterud, K (2018). Time to challenge the pseudo-hierarchy of systematic article reviews?. European Journal of Clinical Investigation, 48(6)
Raines, S, Jenina, T, Dias, M, Jones, R, Jeffries, S, Branton-Foster, S, Lloyd-Evans, B & Johnson, S (2019). Variations in involuntary hospitalization and legal frameworks: an international comparative study. Lancet Psychiatry6(5), 403-417.
Series, L (2022) Deprivation of Liberty in the Shadows of the Institution (Bristol University Press).
Webb, P, Davidson, Rosalie Edge, David Falls, Fionnuala Keenan, Bernie Kelly, Aisling McLaughlin et al. “Service users’ experiences and perceptions of decision-making support.” Health & Social Care in the Community 28, no. 4 (2020): 1282-1291.
Zinkler, M, & Priebe, S (2002). Detention of the mentally ill in Europe—a review. Acta Psychiatrica Scandinaviana106(1), 3-8.
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