Covid-19 and the Rights of People with Mental Health Conditions
In our latest blog, Dr Darius Whelan, Senior Lecturer in Law at the School of Law, University College Cork, examines the impact COVID-19 has had on people with mental health conditions, and whether their rights are being taken sufficiently seriously during the COVID-19 pandemic.
Dr Darius Whelan is a Senior Lecturer in Law at the School of Law, University College Cork. He is the author of Mental Health Law and Practice (Thomson Round Hall, 2009) and is President of the Irish Mental Health Lawyers Association.
The COVID-19 pandemic has undoubtedly had a major impact on people with mental health conditions. Restrictions on social interaction and the necessity to work and study from home can have a major impact on people’s mental health and increase any sense of isolation they may have. Charities such as the Samaritans and Pieta have received increased numbers of calls during the pandemic. There has been an increase in acuity in terms of presentation to inpatient mental health services, and referrals relating to eating disorders have increased significantly.
In considering whether human rights of people with mental health conditions are being upheld during the pandemic, the starting point is to refer to the UN Convention on the Rights of Persons with Disabilities 2006 (the CRPD). This Convention, ratified by Ireland in 2018, requires states to protect the rights of people with disabilities to life, health, education, liberty, and other rights. Disabilities include psychosocial disabilities, often referred to as mental health conditions. The CRPD requires persons with disabilities not to be viewed as ‘objects’ of charity, medical treatment or social protection, but rather as subjects with rights. As part of this approach, it is important that people with disabilities participate actively in all decision-making. But here, it appears that Ireland falls at the first hurdle because the National Public Health Emergency Team(NPHET), which advises the government on COVID-19 issues, does not appear to have a member whose role is to represent the view of service users, patients or people with disabilities. It has also been pointed out that while the members of NPHET have expertise in health matters, they have little expertise in other areas, including but not limited to human rights and equality.
It is well documented that services for people with mental health conditions were already insufficient before the pandemic. The Mental Health Commission noted that many mental health residents are still being admitted to outdated and unclean premises without a meaningful care plan essential to their recovery. Arguably, the pandemic should have led to increased investment in mental health services, as requested by the UN Secretary-General. But in reality, in Ireland matters actually became worse. The Inspector of Mental Health Services, Dr Susan Finnerty, has noted that physical health has always been a particular problem for those in mental health facilities. She says: ‘These services are available to the rest of the population in the community and in general hospitals but are refused in many cases to residents in continuing care mental health units, because they are mental health patients.’ During April-May 2020, the Mental Health Commission observed significant service interruption in the monitoring, identification and provision of general health services to residents of residential mental health care facilities. The Commission also noted that mental health units might not be able to isolate residents who are COVID-19 positive; there are risks associated with dormitory-style accommodation; staff and resident testing for COVID-19 has not been frequent enough; and at times, the process of mass testing of staff and residents lacked coordination and oversight. There are signs of potential improvement in services, with €50 million funding allocated for mental health in Budget 2021 and with the recent announcement of an extra €10 million in funding to meet increased demands on mental health services.  However, mental health services receive only 5.2% of the health budget, when the Sláintecare recommendation is that the allocation should be at least 10%.
As regards COVID-19 vaccinations, those with severe mental health conditions were initially not given any priority for vaccinations, despite evidence that people with such conditions show very high odds ratios of being infected with COVID-19. In February 2021, it was announced that those with severe mental health conditions will now form part of group 4 in the revised vaccination allocation strategy. It is also important that vaccines be made available equitably throughout the world, not just in rich countries.
The COVID-19 pandemic also led to significant dilution of the rights of persons detained under the Mental Health Act 2001. For example, amendments made by the Emergency Measures in the Public Interest (COVID-19) Act 2020 allowed a Mental Health Tribunal to consist of only one member instead of the usual three. While it appears that in reality, there was no occasion in which a tribunal consisted of one member, it is disappointing that such severe measures were introduced, and the duration of the measures was extended until June 2021. It has been noted that there is potential for emergency measures and their enforcement to disproportionately affect certain disadvantaged and more vulnerable groups, and that the relaxation of procedural safeguards for detention on mental health grounds is of particular and urgent concern.
In summary, it is not clear that the rights of those with disabilities, including mental health conditions, are being taken sufficiently seriously during the COVID-19 pandemic. The old-fashioned model of ‘experts’ making significant decisions and eroding rights of people with mental health conditions continues. For the future, stronger steps in the direction of the paradigm shift expected by the CRPD will need to be taken. Persons with disabilities need to be viewed less as ‘objects’ of charity, medical treatment and social protection, but rather as subjects with real and significant human rights.
 Samaritans, ‘How Has Coronavirus Affected Our Callers? <https://www.samaritans.org/ireland/about-samaritans/research-policy/understanding-our-callers-during-COVID-19-pandemic/how-has-coronavirus-affected-our-callers/> accessed 11 March 2021; Jade Wilson, ‘Pieta House Sees Dramatic Rise in Calls to Helpline’ The Irish Times (Dublin, 1 May 2020) <https://www.irishtimes.com/news/social-affairs/pieta-house-sees-dramatic-rise-in-calls-to-helpline-1.4243118> accessed 11 March 2021.
 ‘COVID-19 Resilience and Recovery 2021: The Path Ahead’ (Government of Ireland, 23 February 2021) 21 <https://www.gov.ie/en/publication/c4876-COVID-19-resilience-and-recovery-2021-the-path-ahead/> accessed 11 March 2021.
 UN Convention on the Rights of Persons with Disabilities 2006.
 Conor Casey and others, ‘Ireland’s Emergency Powers During the COVID-19 Pandemic: Report Prepared for the Irish Human Rights and Equality Commission’ (The COVID-19 Law and Human Rights Observatory, 24 February 2021) 57 <https://www.ihrec.ie/documents/irelands-emergency-powers-during-the-COVID-19-pandemic/> accessed 11 March 2021.
 ‘Mental Health Commission: Too Many Residents Still Being Treated Like Second-Class Citizens”’ (Mental Health Commission, 2 July 2020) <https://www.mhcirl.ie/File/PR_020720.pdf> accessed 11 March 2021.
 António Guterres, ‘Mental Health Services are an Essential Part of All Government Responses to COVID-19’ (United Nations, 13 May 2020) <https://www.un.org/en/coronavirus/mental-health-services-are-essential-part-all-government-responses-COVID-19> accessed 11 March 2021.
 Susan Finnerty, ‘Physical Health of People with Severe Mental Illness’ (Mental Health Commission, 2019) 8 <https://www.mhcirl.ie/File/MHC_PhysicalHealthReport.pdf> accessed 11 March 2021.
 John Farrelly, ‘Submission to Special Committee on COVID-19 Response’ (Mental Health Commission, 1 July 2020) <https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/special_committee_on_COVID_19_response/submissions/2020/2020-09-30_submission-john-farrelly-chief-executive-mental-health-commission-scc19r-r-0412_en.pdf> accessed 11 March 2021.
 Fiona Coyle, ‘Budget 2021 a Positive First Step in Meeting the Country’s Mental Health Needs’ (Mental Health Reform, 13 October 2020) <https://www.mentalhealthreform.ie/news/budget-2021-a-positive-first-step-in-meeting-the-countries-mental-health-needs/> accessed 11 March 2021; COVID-19 Resilience and Recovery (n 2) 5.
 Maresa Fagan, ‘Mental Health Budget Share Falls Despite Expected Surge in Demand’ Irish Examiner (Cork, 3 December 2020) ) <https://www.irishexaminer.com/news/arid-40139483.html> accessed 15 March 2021; ‘Committee on the Future of Healthcare: Sláintecare Report (House of the Oireachtas, May 2017) 139 <https://assets.gov.ie/22609/e68786c13e1b4d7daca89b495c506bb8.pdf> accessed 11 March 2021.
 QuanQiu Wang and others, ‘Increased Risk of COVID‐19 Infection and Mortality in People with Mental Disorders: Analysis from Electronic Health Records in the United States’ (2021) 20 World Psychiatry 124; Marc De Hert and others, ‘Prioritizing COVID‐19 Vaccination for People with Severe Mental Illness’ (2021) 20 World Psychiatry 54.
 ‘Minister Donnelly Announces Update to Vaccine Allocation Strategy’ (Government of Ireland, 23 February 2021) <https://www.gov.ie/en/press-release/b44b2-minister-donnelly-announces-update-to-vaccine-allocation-strategy/> accessed 11 March 2021.
 ‘Secretary-General Calls Vaccine Equity Biggest Moral Test for Global Community, as Security Council Considers Equitable Availability of Doses’ (United Nations, 17 February 2021) <https://www.un.org/press/en/2021/sc14438.doc.htm> accessed 11 March 2021.
 Mental Health Act 2001.
 Emergency Measures in the Public Interest (COVID-19) Act 2020, s 20, amending Mental Health Act 2001, s 48; See further Brendan D Kelly, ‘Emergency Mental Health Legislation in Response to the COVID-19 (Coronavirus) Pandemic in Ireland: Urgency, Necessity and Proportionality’ (2020) 70 International Journal of Law and Psychiatry 101564.
 Sinead Gibney in Casey and others (n 4) vi.