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During the panic of Storm Emma, it was reported in the media that a number of homeless people were ‘sectioned’ under the Mental Health Act 2001, due to their refusal to enter emergency accommodation.
While the facts of each individual cases are not widely known, it appears that some of these people were, undoubtedly, suffering from mental health issues. But, it can also be argued, that some of them may not have been.
It appears that the fundamental argument of impaired capacity versus the right to self-determination is at play here. For the purposes of clarity, some rough sleepers, who appeared to have made provision for themselves, were allowed to remain where they were.
The right to choose
Autonomy, self-determination, a right to choose. Call it what you want, it is an innate right afforded to all citizens in a democratic society. On impaired capacity in disability rights law, expert Gerard Quinn has stated:
Most of us, most of the time, both think and act irrationally. We often cloak our reasoning in the garb of rationality but the wellsprings of both thought and action often run much deeper.
A nanny-like State model, one where decisions are made for our citizens, cannot be allowed to reign supreme.
Of course, the counter-argument to this is that any person left out in those conditions would die. That the government ensured the safety of everyone and that, unlike the terrible death of Jonathan Corrie, no homeless person in Ireland froze to death during Storm Emma.
That to refuse shelter is practically ‘suicidal’ anyway and weren’t they right to ‘commit’ them? The importance of an individual’s life is undeniable; there is no questioning that. But so too is self-determination. People’s lives only become their own through their right to choose; otherwise, their lives, to them, are worthless.
Section 10 of the Mental Health Act 2001
Under Section 10 of the Mental Health Act 2001, a registered medical practitioner must examine the individual and be satisfied that they are suffering from a mental disorder. If someone is lacking capacity, this is sufficient. The best interests of the patient are paramount.
However, to play the devil’s advocate, what may be a rational decision to me may be a completely irrational one to you. It is a precarious line to balance. Without a shadow of a doubt, there is a huge distinction between a difference of opinions and a mental disorder.
But it is the areas of grey which we must question.
In the past, archaic mental health laws and cases in this country have been tenuous, to say the least. This is why it is absolutely critical that we do not adopt a position of paternalism and instead, lead the way in our approach to involuntary admissions under the Mental Health Act.
Distinguishing between a person making a ‘stupid’ decision and one that is suffering from a mental health disorder
Incarceration is always a last resort. However, it is important to distinguish the difference between a person that is making a ‘stupid’ decision and one that is suffering from a mental health disorder. The word ‘insane’ is thrown around loosely.
The woman we all watched on the news, who both idiotically and selfishly, decided to jump into the treacherous sea at Sandycove, was labelled ‘crazy’ by passers-by.
Was she being ridiculous, was she being stupid? Yes. Was she knowingly risking her life? Perhaps. But was she certifiably insane? Did she lack the capacity to realise the decision that she was making was not in her best interests?
The question that we need to ask is if these individuals understood the severity of the circumstances that they were in and realised that they were endangering their life. Were they making this decision being of sound mind? If not, then involuntary detainment is, unfortunately, necessary.
But what if they did understand and they decided they were staying out in those inhospitable conditions, regardless of the outcome? Again, it’s a stupid decision.
But does that constitute that individual to be lacking the capacity to fully comprehend the situation which they are in? Does that mean that they need to be ‘committed’ to ensure their survival? Maybe that’s what we really need to consider here.
If a person decides that they want to take the chance and risk it, so to speak, if they have capacity and if they realise what the consequences of their decision is, then who are we to stop them?
Mairead Leen recently graduated from UCC with a Masters in Law. Her thesis focused on the law on capacity; she has a keen interest in disability law and journalism.
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Talk about an article going around in circles. The most important fact is that no homeless person died during the storm. The action was to save lives. If a number had died because of inaction to save them this polemic article would not have been written. Trying to turn a win win situation into a no win situation.
@Chris McNamara: So it wasn’t for the individuals benefit solely ?There was an agenda to not look bad and to avoid a backlash. Hmmmmm
@Catherine Sims: what’s the superior mmmm for? . I’m not saying they weren’t concerned , I don’t know ,but you have heard of the term “political expediency”, right. Lets take an example : 3 people die . Leo says , we couldn’t determine their mental fitness was impared so we left them freeze under the bridge so as to protect their right to self determination . Peter mcvery et al . “Fair play Leo , good move ??”
@Chris McNamara: The issue is if Leo should have the authority to willfully remove personal freedom if there are no determined mental health issues or if there is no assessment done of their mental health status. Leo’s obligation was to make beds available and make that information known to rough sleepers. Beyond that was their actions heavy handed ? Was the motivations simply to avoid a backlash and if homelessness was such a hot topic and a sensitive subject saturating the media would those heavy handed tatics have been employed ?
Wasn’t not was
@Catherine Sims: There were a number of possible outcomes, broadly speaking those who wanted to remain sleeping rough could have been left to do so and some would probably have died. We would probably be having a different conversation about them right now, why didn’t the authorities do something, anything. Why didn’t they take them off the streets when it was clear their lives were at risk and there was a high probability of death?
But they did. And nobody died. You could argue it was for political reasons, and there may be some truth to that too, I doubt it would look good on the fron pages had they died. But then it could also be argued that it doesn’t seem to bother them too much when the occassonal rough sleeper does die.
@Jed I. Knight: All very valid points . The author though has raised good questions . It has opened up a good conversation around motives and when it’s “ok” to remove personal freedoms and when it’s”ok” to ride roughshod over a person’s wishes in the name of knowing that the authorities know better. It’s also opens up questions around how we treat and think of one of the most marginalised groups in society and arguably one if the more vulnerable. These people are used to rough generally. Rough living conditions rough treatment by the public rough everything. They are the most likely not to speak or and the most likely not to be heard if they do. I’m not saying I gave answers all I’m saying we shpdnt accept the removal of anyone’s personal freedoms by the authorities in any mass or even little group movement. That’s a dangerous precedence .
@Catherine Sims: The removal of all those freedoms you speak of is the entire point of our Mental Health laws, it isn’t so much riding roughshod over anyones wishes but rather using the Mental Health Act 2001 to protect and for the benefit of the vulnerable.
I imagine it’s how you look at the situation, and I can see the potential dangers of just using the Mental Health Act 2001 to ’round up’ politically embarassing situations. In this case it was employed, with oversight and in full view of the media for genuine reasons and, it’s my understanding, once the danger had passed all were facilitated to return to the streets. I think that is perhaps the worst part. When they realised the seriousness of the situation emergency accomodation was found, the Mental Health Act was employed and the vulnerable were protected – until the critical danger passed. Then it was business as usual.
@Micheal S. O’ Ceilleachair: How about the fact that the author is bringing an important topic to conversation
@Chris McNamara: How could the article be about the author!! She clearly states relevant and topical issues.
@Catherine Sims:
” So it wasn’t for the individuals benefit solely ?There was an agenda to not look bad and to avoid a backlash. Hmmmmm”
I note that you seem to accept that the individual homeless people benefited anyway. That said, it comes down to whether people who are placing themselves in danger of hypothermia, even of death, should just be left to do so. I would argue that when people are placing themselves in mortal danger there is an obligation to save them, if necessary from themselves. It’s not as though they were going to be maltreated or imprisoned. On the contrary, they would be more likely to receive hot food, a comfortable bed and warm surroundings for as long as the blizzard and cold conditions persisted.
Your suggestion that there was an agenda on the part of government not to look bad is grudging and ignores the main point that lives were being saved. Whatever the government’s motive (and yes, it is likely that they were conscious of a possible backlash, I would guess), the did the right thing, regardless of the motive. If they had not acted, then they would certainly have been wrong, and would have deserved condign criticism for inactivity in the face of the crisis.
@Julia Breen: how many people do you know have been whipped into some form of state custody by the nefarious use of the mental health act or indeed any other instrument ? I thought so . We can discuss all manner of possibilities arising an abuse potential abuse of power. Of course that would lead to a culture of mistrust and perpetual fear of the institutions of the state . Luckily we don’t live in Russia or amongst a commune of loons in the US ready to raise arms against any tyrannical government !
@Antony Monks: It wasn’t Mr that suggested the government had the agenda. I merely picked up on that comment made by Chris MacNamara. But hey don’t let that little fact distract you from your rant
@Jed I. Knight: there wadny any individual assessment made of individuals regarding their mental health though. So we don’t know if the act was used on mentally ill people. Secondly there was no one sectioning the woman who went for a swim as the author pointed out. Surely she put herself 8n danger so should have her freedom removed? It’s the assumptions made regarding the homeless that mental health issues will always be at play . Secondly if these people lack capacity to.think situation that could be life threatening then why were they released back to the street immediately ???? It does feel like an abuse of the act to be honest and at the very least we should be questioning and talking about it.
Anybody choosing to sleep out in that needs some decisions to be made for them.
@Daddy Long Legs: What about some of those who went swimming during the last few storms? Should they be committed?
@Johnny Bellew: they should be arrested and the ones that require public services to rescue them should be charged and fined a minimum of the cost of the rescue.
@Gareth Cooney: If you really want to live in a state where every incorrect personal choice you make is an imprisonable crime, you’d love North Korea.
As I understand it, this was an action initiated by a doctor working for a charity. It was not state policy and wasn’t applied outside Dublin. So we can’t really claim it to be the actions of a nanny state.
@Chris Mansfield: I think “Nanny state ” has a much wider definition than you are proposing there though to be fair.
Where does the tax payers/general good citizens interest come into play?
Those that refused… say 100 rough sleepers got pneumonia… afterwards required hospital treatment for a few weeks… who pays for that?
Earlier this week over 700 waiting admittance to hospital on trolleys, those 100 would have made 800.
@Catherine Sims: I completely agree
‘Without knowing the facts of any of the cases, I’m going to make comment on the actions of those involved anyway.’
@Joe Bloggs: ThJournal summed up in one sentence. (P.S. they are all guilty)
FFS, the lefties are never happy!!
That woman swimming not only was risking her life but the lives of those who rescued her. In this instance it was the public but usually it would have been the rescue services like the coast guard. The issue changes from being a danger to yourself to one of being a danger to others. One would argue that rough sleepers would have much more knowledge and experience of what they can tolerate and they made a risk assessment. The same risk assessments others make and aren’t sectioned for. Doctors and journalists going into war zones with no military training and little in real terms in the way of protection make those risk assessments every day going to work. They aren’t highly trained soldiers who are more prepared for that risk. Yet we don’t question we applaud. It’s not just acceptable it’s noble. So the difference here is one of status within society. If we say all rough sleepers don’t have mental health issues then we are saying it’s ok to remove the persons freedom if they are the lowest rank in society under the guise of the authorities know what’s best. Scary.
@Catherine Sims: See, that doesn’t make sense to me. Why don’t we just have a rule that the emergency services won’t help people who do stupid stuff in a red alert? She wasn’t even asking to be rescued, just like the surfers catching the front end of Ophelia.
@Catherine Sims: Risk assessement? You are having a laugh! Risk assessement implies that they made a rational choice based on the information at hand & weighed it up against what they had to do. Doctors, journalists, NGO’s etc. who go to conflict areas get briefings & training before deciding that their jobs necesitate the risk. Rough sleepers are doing none of that. Rough sleepers who choose to stay out do so because they have a drink/drugs problem, they have mental issues or they have an issue with a particular person in a certain hostel; given the extra capacity available at the time, that last one wasn’t an issue. It also wasn’t mentioned that for someone to be committed, a second doctor must confirm the decision of the first, all decisions may be subject to a review by a panel & that being under the influence doesn’t count as mental illness. If someone was committed after all that, it’s extremely unlikely that it was a nanny state move.
@Catherine Sims: That muppet in the sea should have been arrested and charged with wasting taxpayers money saving her stupid self. it was a stupid ill-informed decision of hers, to go into the sea in a red weather warning in the first place.
@Ben McArthur: I think in times of emergency when people have been warned to not go in the water we should tell people they are on their own if they do go in the water. In the US if people ignore the advice to evacuate they have been told in recent times they are on their own. If they get into trouble no one is coming to their aid. It’s about not placing our emergency services into unnecessary risks.
@Joe Bloggs: Well you gave kind of made my point for me. You assume because people are rough sleepers they automatically don’t have the capacity to make their own risk assessment. Never mind the fact that they are out sleeping rough every single night if their lives. They understand their environment and their limits because they are out in the elements every night. This is where they live. Not everyone has mental health or drug issues.I don’t know if any assessments were made of these individuals but as you point out there is a process involved that doesn’t seem likely was followed for every indivudual that night. This author has done a great job is opening up a conversation . Our personal freedom is our biggest asset and our biggest civil and human right. We shouldn’t be so quick to accept or not question methods used to remove that freedom just because the people in question are homeless and are considered not like you or me. The point is at if we don’t question and hold people accountable at some stage it could you be on the grounds it’s “for your own good”. We need to all remember that
@Catherine Sims: I didn’t make your point for you at all, and you’re deliberately glossing over what I said in order to make that claim. I didn’t say that all rough sleepers aren’t able to make decisions, I said that those who don’t go into hostels do so due to addiction issues, mental illness or problems with people in certain hostels. Given that the vast majority of them made a decision to go indoors, and given that the extra capacity made available for the storm meant that there was greater choice, you were only left with those who have addiction & mental issues; are you honestly going to claim that they made rational & conscious decisions to stay out in the worst weather to hit the country in 36 years? They may be out on the streets every night, but unless they’re in their 60′s they haven’t experienced anything like this.
@Catherine Sims: risk assessments, firstly in order to make an informed assessment of the risk you would needed to be rough sleeping in 1982 and factor in your age difference since then.
Secondly, for those rough sleepers who may have been alcohol dependent. It is virtually impossible to form an accurate assessment of the risk because alcohol gives a false sense of temperature.
@Joe Bloggs: but you are wrong in your assessment that those who didn’t go indoors are automatically those with metal health issues. There is a local man who doesn’t have issues and was homeless in 1982 aged 15 . He has had bad experiences of what is termed “help”. He has had people try to classify him as mentally ill but failed as he isn’t. He is just been homeless on and off for so long he cannot cope with holding down a home and all that comes with it. He had arrangements made that didn’t involve a hostel . He has some friends from his school days like myself who help him out. Not everyone had no where to go but they just weren’t believed. So I completely take issue with the fact that those who were left were those with mental health or addiction issues.
“If a person decides that they want to take the chance and risk it, so to speak, if they have capacity and if they realise what the consequences of their decision is, then who are we to stop them?”
When you say ‘have the capacity’, you mean they understand they could likely die on the street in a sub zero red weather alert. Thus it is attempted suicide if they refuse shelter being offered, so they should be arrested for that crime instead?
Makes sense, I’m all for that. Quite a stronghanded approach though that you are suggesting..
@alphanautica: what crime are you referring to. ? Neither attempted suicide or the act of suicide is a criminal offence under the law of the land. You need to educate yourself more before posting or responding to articles where suicide is concerned.
Of course they were sectioned – because in order to want to die you must have a mental health issue. Thats what wouldve happened had they slept on the street.
bloody liberals, on the one hand you want a socialist utopia, yet on the other, when the state steps in and decides that in the interests of these individuals health that they will force them into a shelter , thus saving their lives, youre all up in arms saying it has infringed on some human right or other. the mind boggles.
@Ros Aodha: And what would your view be when that person wanted to leave but a doctor refused this request
Damned if you do these days
The author touches on some important issues however she also shows why it’s important to have both theory and practice.
The mental health act is only stage 1 and 2 of 4. In order to be ‘sectioned’ you must first be arrested by a Garda, then the doctor must sign you off for assessment, after that you sit in a hospital where a specialist must decide that you are a danger to yourself or another as a result of mental illness.
And then and only then, will you visit the mental ward where that doctor must decide to actually keep you.
We need checks and of course, people’s liberty must be protected but let’s not pretend here, there are genuine cases turned away due to lack of space so the chances of using the beds to stash innocent people is very low.
I would of thought a mobile accommodation of some sort would be helpful instead of a possibility of degrading a homeless person if he does not wish to be categorized under the Mental Health act
@Johnny Mason: does any person refusing critical lifesaving assistance in a life threatening situation for no rational reason not qualify under the Mental Health Act?
@alphanautica: YOU sure opened Pandora’s box with those Questions and probably touched on many Human and Constitution Rights v the mental Health ACT
@alphanautica: In the UK there was a case of a women who walked intk a&e. She had taken an overdose . She didn’t want medical intervention to be saved and just wanted to be made comfortable. She wasn’t sectioned. Her wishes were respected and much to the frustration of the medical staff she died. My mother refused life saving surgery for no other reason that she was afraid of going through the surgery again. She didn’t tell us and no one tried to convince her medically to go ahead with the surgery . So I’d say the answer is likely no once it’s yourself and you not making that decision for someone else.
Fantastic, controversial article. Just what this website needs.
The author also assumes that those committed were given suitable and humane choices. Knowing Darth Varadkar’s obsession with PR its highly probable the homeless were pressed ganged into whatever the govt decided it needed to avoid a PR disaster during the storm t keep them alive. To show they are handling the weather and housing crisis competently. With history we know they are doing neither. This needs to be investigated.
There are always those who will be homeless. Normally known as tramps. They will never see themselves as any part of society. They were with us before the government inspired homeless epidemic we see now.
Was the government to get them off the streets due to such bad weather? Yes they were.
Were the government concerned in doing the “right thing” or were the government more concerned at the potential public backlash had some homeless person died?
The government were more concerned at the potential public backlash, is the answer.
They should all be bloody committed. We put up with WAY too much bs here.
What a load of nonsense. When someone is clearly not in a fit state of mind to
remove themselves from conditions that are immediately life threatening they are a danger to themselves. The State has a duty to preserve life, if needs must by taking away that person’s freedom which is clearly provided for in law.
Behaviour being irrational or not is not the yardstick in this case. The behaviour has to be irrational to the extent that it creates immediate danger of death or serious injury. An issue that was in my opinion fairly clear cut in this case.
Absolute abuse of the MHA.
By this logic anyone who engages in extreme sports need to have a full mental assessment prior to taking part in any event (which isn’t the case).
It’s the same reason that addiction and personality disordered aren’t grounds to be detained under the MHA. (i.e. If you want to drink yourself your death, so be it).
And we’ve all got a death-drive BTW.
have your say