New Human Rights LLM announced

Dr Siobhán Mullally announces UCC Law Faculty’s new LLM in International Human Rights Law and Public Policy on IntLawGrrls blog:

We at University College Cork, Ireland, are delighted to announce the launch of a new LLM in International Human Rights Law and Public Policy, to commence in September 2011.

This an innovative and exciting new LLM programme, which builds on the Law Faculty’s strengths in the fields of International and European human rights law. The programme is taught by academic staff with extensive experience in human rights law and public policy, both at national and international levels. It includes a core International Human Rights clinic module, which is designed specifically to engage students in the practice and policy context of Human Rights Law. Students will benefit from a series of guest seminars and workshops with representatives of civil society, Government, international human rights bodies and the world of legal practice.

The Programme Director is, yours truly, Dr Siobhán Mullally. Our teaching team includes staff with distinguished records in research, teaching and public policy engagement: Professor Caroline Fennell, Dr Ursula Kilkelly; Dr Darren O’Donovan, Dr Siobhán Wills; Dr Conor O’Mahony, Dr Louise Crowley, Dr Aisling Parkes, and me.

The Law Faculty is delighted to include in its team of Adjunct Professors leading world experts on human rights law and practice: Professor Samantha Power, Special Adviser to President Obama on Multilateral Affairs and Human Rights and; Lord Lester of Herne Hill QC, Blackstone Chambers, London and of Europe’s leading human rights law practitioners.

Details on the program and its curriculum are here. The deadline for applications for the session beginning this autumn is May 1, 2011.

I am happy to answer any queries (e-mail: s.mullally@ucc.ie) that you might have concerning the programme and opportunities for prospective students.

Moving from a Food Aid Convention to a Food Assistance Convention

Dug Cubie

The increasing effects of climate change and natural disasters, including drought and flooding which severely affects agricultural production in affected regions, forms the backdrop to the current renegotiation of the Food Aid Convention (FAC). The eight signatories of the FAC met in London at the beginning of this month (28th February – 3rd March 2011) to commence the negotiations at a time of steeply increasing world food prices. On the table for discussion include allowing additional donor members to become signatories to the Convention, the form that food aid should take, and where the FAC fits in the overall international response to food scarcity and insecurity.

First established in 1967, the Food Aid Convention is the only international legal instrument covering the provision of food aid to developing countries. The current members of the FAC are Australia, Argentina, Canada, the European Union, Japan, Norway, Switzerland and the United States; while implementation of the Convention is overseen by the Food Aid Committee, currently chaired by Canada, which is based in the International Grains Council in London.

Unlike other international conventions, the FAC is deemed to be a temporary instrument, with the current text of the FAC last renegotiated in 1999, initially for a three year period, but subject to annual extensions of validity since 2002. This annual uncertainty over the future application of the treaty results, in part, from the deliberations on food aid in the World Trade Organisation’s Agreement on Agriculture. However, the collapse of the WTO Doha Development Round in 2008 prompted the signatories to the FAC to extend its validity until June 2011 to allow time for a renegotiation of the FAC itself to take place. These negotiations are expected to be intense. There are pronounced differences between key members of the FAC, most notably between the United States of America and Japan which favour a resource-based approach where agricultural produce is provided directly from donor countries, and the European Union and Canada which are promoting a needs-based approach.

While intended to provide a level of resource certainty to recipient States and UN agencies such as the World Food Programme, there is a wide-spread belief that the FAC is out-dated and does not reflect current models of emergency and humanitarian assistance. Oxfam has highlighted that in most food emergencies, it is not access to food that is the main problem but people’s ability to buy food. Therefore, a model of food aid based on shipments of surplus agricultural produce from developed countries, with the attendant high shipping and procurements costs and negative impact for the local producers, does not correspond to the needs of the affected populations. A recent paper by Nathan Nunn (Harvard University) and Nancy Qian (Yale University) researched the motivations behind the signatories to the FAC. They found that the US provides most of its food aid in the form of food surpluses from US farmers; but despite EU food aid remaining untied, it is closely linked to the colonial history of several EU Member States, with former colonies receiving disproportionately large amounts of EU food aid.

However, the debate is not simply about the modalities of providing food aid. Approaches which promote cash or vouchers still have to contend with the fact that in a time of food insecurity rapidly rising prices in local markets may negate the true value of assistance for each household. Therefore, minimum tonnage or consumption requirements still need to be ensured. This has led to suggestions that “food aid” should be reclassified as “food assistance” to highlight the broad nature of assistance required by people facing hunger and food insecurity. This may move the discussions from the realm of what food stuffs to provide, to what overall package of assistance is required to meet the needs of affected populations. Yet the FAC negotiations are being undertaken behind closed doors by the eight signatories, who are all donors of food aid, to the exclusion of the recipient countries themselves, which means that vital issues from the perspective of those in receipt of food aid may not be raised. Even countries which have recently become donor countries, such as Brazil, China, India, Russia and South Africa will not be directly involved in the discussions. Therefore, the future approach of either the current Food Aid Convention or an updated Food Assistance Convention remains to be seen. However, with the deadline for the conclusion of negotiations in early June 2011 fast approaching, the next steps for the food and hunger components of emergency and humanitarian assistance may be clarified in the coming months.

The world must not stand idly by as Gadafy murders his own people

Dr Siobhan Mullally

This piece was originially published as an Opinion piece in the Irish Times on 12 March 2011

THE CRISIS in Libya presents new Minister for Foreign Affairs and Trade Eamon Gilmore with many urgent and pressing questions. As yet, the international community has failed to respond effectively to this unfolding humanitarian crisis. Disagreement at the United Nations Security Council and the threat of veto from both Russia and China is continuing to limit the possibility of a concerted collective response to the crisis. A draft resolution imposing a no-fly zone has been prepared by the UK and France, apparently ready to be formally presented if Libya commits an “egregious act”.

Egregious acts are, however, already occurring, and it is not clear that, even in such an event, consensus would be forthcoming.

Sadly, for observers of the security council, such disagreement and paralysis in the face of mass atrocity is all too familiar.

In the 1990s, the UN’s failure to intervene in Rwanda and Srebrenica contributed directly to the deaths of hundreds of thousands of innocent civilians, and led finally to the recognition that the UN’s role in protecting civilians was in need of urgent and dramatic reform.

Many international law commentators have pointed to the parallels between the Libyan and Kosovan crises. In 1999, inaction on the part of the Security Council in the face of widespread human rights violations in Kosovo ultimately led to unilateral action by the North Atlantic Treaty Organisation (Nato), without security council authorisation.

The independent Commission on Kosovo, established by the UN secretary general in the wake of the Nato action, concluded that the intervention was “illegal”, but legitimate. The spectre of inaction in the face of a humanitarian crisis could not be countenanced.

Following quickly on the Kosovan crisis, the security council authorised intervention in East Timor, but only when it had secured an invitation from Indonesia, and only after Indonesian and militia forces had run amok, killing, raping and pillaging with impunity.

In his essay “Two Concepts of Sovereignty”, then UN secretary general Kofi Annan called on the international community to reach consensus – not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom.

The Responsibility to Protect (R2P) Doctrine, developed through a series of high-level meetings of heads of state and governments in the early years of the new millennium, sought to address the past failings of the UN. At the heart of the R2P doctrine is the commitment by the international community, acting through the UN, to take collective action, in a timely and decisive manner, to protect populations from genocide, crimes against humanity and war crimes.

The crisis in Libya represents precisely the kind of situation envisaged by the R2P doctrine. The possibility of effective action by the UN, however, faces the hurdles of realpolitik and the self-interested disengagement by Russia and China, mindful no doubt of the potential for Jasmine revolutions to extend beyond this Arab Spring.

The security council has taken a first step towards a decisive response to the crisis. Security council Resolution 1970, adopted on February 26th, imposed a targeted regime of sanctions, and, reflecting the commitment to pursue accountability, the security council referred the situation in Libya to the International Criminal Court.

Significantly, the resolution was adopted unanimously, with support from the US. This support reflects the Obama administration’s policy of positive engagement, a welcome reprieve from the Bush administration’s open and hostile opposition to the court.

The swift referral of the situation to the court is remarkable, given the delays that usually accompany negotiations on the role of the court. The referral of the situation in Libya is not without its difficulties, however. Libya is not a party to the Statute of the International Criminal Court, and Col Gadafy has been a vocal opponent, along with other African heads of state, of the court’s role in Africa, calling in particular for a deferral of the arrest warrant against Sudan’s President Omar al-Bashir.

All of the situations and cases currently before the court concern African states, raising questions as to the impartiality of the court and doubts as to why similar referrals did not occur in the context of Israel’s attacks on Gaza in 2009, for example.

For the moment, African states have not opposed the security council’s actions against Libya, though South Africa (a non-permanent member of the security council), is reported to be sceptical of the proposed no-fly zone and possible military action.

The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has now officially opened the investigation into the Libyan crisis, warning that crimes against humanity may be occurring, and that those responsible will be held accountable.

While these developments are to be welcomed, sanctions and the pursuit of accountability are not enough. Judicial remedies, while important, will not, and are not, deterring Col Gadafy and his forces from committing mass atrocity against innocent civilians. It now seems unlikely the US will support or lead any unilateral action against Libya. Nato continues to discuss its possible role in imposing a no-fly zone.

The doctrine of humanitarian intervention recognises the possibility of unilateral action, when a state’s actions against its own civilians are “so brutal as to shock the conscience of mankind”.

The actions of Gadafy’s forces have clearly met this threshold, shocking and distressing all those watching.

On accepting the Nobel Peace Prize, Obama spoke eloquently of the idea of a just war. He also called for the strengthening of the international institutions and international law. Over the last decade, both the US and the UK have invoked the doctrine of humanitarian intervention to support military action, when the UN failed to act. Over-extended now by conflict in Afghanistan and Iraq, and chastened by the errors of past administrations, neither look likely now to act without UN support.

The UN must respond. It is imperative that the security council fulfils its responsibility to the people of Libya, if it is not to be rendered irrelevant yet again in the face of a grave humanitarian crisis. Decisive action, including the immediate authorisation of a no-fly zone, is required.

International Women’s Day and the Programme for Government

Dr Siobhan Mullally

Today is the 100th anniversary of the first International Women’s Day. One hundred years ago, women marched, protested and called for the right to vote, equal rights to political participation and the empowerment of women in aspects of public and private life. It is timely, therefore, to reflect on the Programme for Government concluded between the two largest political parties in the Dáil, Fine Gael and Labour, the Government for National Recovery 2011-2016.

The Programme makes a number of important commitments of relevance to the promotion of gender equality in Ireland. Many of these do not go far enough and will disappoint those who have advocated for more sweeping and urgent reforms. If realised within the term of this incoming Government, the commitments made, albeit limited, could, however, see significant change in both the legal and political structures of the State.

To begin with, the Programme commits the Government to a reversal of the minimum wage cuts (p.8), disgracefully introduced in the dying days of the last Government. As the National Women’s Council noted at the time of the cuts, most of those affected were women, and many were immigrant women, working in sectors such as hotel and catering, cleaning etc. The commitment to reversing the cut is a victory for campaigners who advocated strongly against imposing such a burden on a vulnerable group of workers. The finding of the Labour Court yesterday, that cleaning staff at the Davenport hotel, should be returned to the work roster on the original minimum wage, is another welcome vindication of the rights of low paid workers in Ireland.

The Programme for Government also promises to maintain social welfare benefits at their current levels, a welcome respite for the many lone parents and carers who are dependent on welfare payments, the vast majority of whom are women.

On political reform, the Programme acknowledges the need for greater female representation in the Dáil and requires that public funding for political parties will be tied to the numbers of women candidates achieved. Quotas, are for the moment, not contemplated, but the constitutional review process is also to be tasked with exploring how greater female participation can be secured. So, we may yet see parity, quotas and other forms of positive action being proposed. The incoming Dáil Éireann will comprise of only 17% of female T.D.s, reflecting an ongoing failure of more equitable and diverse political representation in Ireland.

On reproductive and sexual health, the Programme avoids any clear commitments to legislative reform, despite the A.B.C. judgment of the European Court of Human Rights. It does however commit to the establishment of an expert group to review the judgment and its implications. It remains to be seen whether we will see yet another compromise on women’s reproductive rights. As the Supreme Court noted in Attorney General v X, almost 20 years ago, the Eighth Amendment to the Constitution, ‘historically divisive’ has remained ‘bare of legislative direction’ since its adoption. The ABC judgment has received widespread commentary. The majority judgment follows an earlier finding in Tysiac v Poland, where the failure to provide effective access to an abortion that would have been lawful under domestic law, was found to be a breach of the applicant’s right to private life (article 8). The Court adopted a similar reasoning in its ABC judgment, with respect to the third applicant C, given the substantial risk to her life arising from the pregnancy.

The judgment was disappointing in its dismissal of the article 2 and 3 claims, given the very difficult circumstances endured by each of the applicants in this case. The majority judgment, that there was no violation of article 8, with regard to applicants A and B, reveals the limits of European human rights law, and the willingness to defer to the margin of appreciation doctrine, to restrict the universalist underpinnings of the Convention itself. As the partly dissenting judgments (on the application of article 8 to the first two applicants) note:

[…] in the case before us a European consensus (and, indeed, a strong one) exists. We believe that this will be one of the rare times in the Court’s case-law that Strasbourg considers that such consensus does not narrow the broad margin of appreciation of the State concerned.

Again, as the dissenting judgments note, this is ‘the first time that the Court has disregarded the existence of a European consensus on the basis of “profound moral views”. Stark language is used to describe this shift: ‘a real and dangerous new departure in the Court’s case-law.’

The majority judgment of the Court failed to take account of significant developments in international human rights law, on the subject of reproductive and sexual health, including on the emerging right to have access to a safe and legal abortion. What was particularly surprising about the ABC judgment, was the willingness to consider the possibility of travel to another jurisdiction (the UK), as relevant to considering the legality of the restrictions imposed upon abortion by Irish law and to the determination of the proportionality of the State’s actions.  It is difficult to see how such reasoning might be applied in other contexts before the Court.

Despite political commentary in the aftermath of the ABC case, the Court’s judgment is unequivocal on the legal reform needed, to give effect to the Supreme Court judgment in Attorney General v X. It is to be hoped therefore, that the proposed expert group, will swiftly come to a conclusion that will support long awaited, if limited, reform for women.

On marriage equality for same sex couples, the Programme does not make any firm commitment to change. It is agreed that the Constitutional review will include consideration of same sex marriage. This is compromise between the Labour Party manifesto, which gave a commitment to the introduction of same sex marriage and marriage equality,   and the Fine Gael manifesto, which did not.

To be welcomed, however, is the commitment to legislative reform to ensure that outstanding taxation and social welfare issues on civil partnerships will be addressed, and to redress the inequities in protection of the rights and interests of children in such partnerships, omitted from the scope of the 2010 Act. This latter commitment, together with the promise for a constitutional amendment on children, is particularly to be welcomed. Let’s hope it will see speedy implementation.

The Programme also makes a commitment to reform in the area of gender recognition, a topic that has been discussed in some depth at the CCJHR. Following the settlement of the Foy case, it now seems likely that gender recognition legislation will be enacted within the life of this incoming Government. As Dr Tanya Ni Mhuirthile has commented, it will be essential to ensure that any such legislative reform does not repeat the errors of UK legislation, but moves beyond categorisations such as ‘gender disorder’ and instead, recognises the rights and principles set out in the UN Draft Declaration on sexual orientation and gender identity.

The Programme also makes a commitment to legislative reform on female genital mutilation, reflecting the advocacy of Senator Ivana Bacik. Hopefully any review of reform in this area will consider whether targetted legislation is necessary and desirable or whether amendments of existing criminal laws might ensure effective protection, and address gaps in protection such as the absence of extra-territorial effect. (See:  a recent article by Mullally and Ni Mhuirthile in Dublin University Law Journal on this subject).

Finally, the Programme makes a commitment to reviewing the much malinged constitutional provision: article 41 on women’s position and duties in the home (about which, see further here. It is hoped that any proposed constitutional reform will include a commitment to recognition of the work of all carers, inside and outside of the home, without the gender bias that came with Bunreacht na hÉireann.  IWD 2012 will give us an opportunity to reflect on whether or not these promises of change have come to fruition. As our sisters one hundred years ago did, let us hope and dream.

Considering the contribution of gender mainstreaming to Irish mental health law

Dr Claire Murray

International women’s day provides a space to reflect on the role of women in society and the contribution of feminisms and feminist theories in a wide variety of contexts. I would like to take the opportunity to draw attention to one small but practical contribution that gender mainstreaming could make to Irish mental health law. Gender mainstreaming is one practical method of applying contemporary feminist theories within the law-making process. It began as a way of ensuring that legislative provisions did not discriminate against women, even where the legislation appeared to be gender-neutral on the surface. This was subsequently expanded to ensure that mainstreaming also tackled other factors that could contribute to discrimination, such as poverty, race, age and disability. It aims to take account of the situated subject and the difficulties faced by people in their lived realities when developing policy and drafting legislation. The Mental Health Act 2001 (MHA 2001) is the current legislative framework regulating civil mental health law in Ireland and it is professed to be a rights-based model of mental health law. When it was fully commenced in November 2006 it was considered to be a significant improvement on the Mental Treatment Act 1945 which was a very paternalistic model of mental health law.

Mainstreaming theory has not been implemented fully in the context of Irish mental health law. Since 1993 all Memoranda to Government are to be gender proofed, however, in practice this policy merely operates as a checklist. According to the Mental Health Unit in the Department of Health and Children, the Memorandum for Government in relation to the MHA 2001 would have been subject to gender proofing. However, it is important to note that the Memorandum to Government is one of the very earliest steps in the legislative process and, as such, any proofing can only be of the most cursory nature. The failure to adequately mainstream mental health law is disappointing as an effective mainstreaming policy could have a significant impact on the rights-based model in place.

For example, one of the core objectives of mainstreaming is to encourage equality. Generally this is understood in terms of equality of outcome, such as the elimination of disadvantage. However, there are other elements such as equality of access and participation. De facto equality is not just the formal right to participate but also the ability to exercise that right. The gap between the existence of a right and the effective exercise of that right is a significant issue in the context of Irish mental health law. There are particular concerns in relation to incapable compliant patients with mental disorders who are “voluntarily” admitted for treatment in circumstances where they may lack the necessary capacity to consent to admission. This group includes people with severe and profound mental disabilities, elderly people with advanced dementia, and people with severe mental disorders that affect legal capacity. Such “voluntary” or informal patients are not entitled to any automatic periodic review of admission and treatment as they do not come within the statutory framework of safeguards currently in operation. This may well amount to an unlawful deprivation of liberty in breach of Article 5 of the European Convention on Human Rights. For further discussion of this issue see the case of HL v United Kingdom (2005) 40 EHRR 761 and the widespread discussion in the UK on the implications of what was referred to as the Bournewood case[1]. Following on from this decision the Mental Health Act 2007 introduced a system of automatic periodic review in the UK which operates in parallel to the review procedure for involuntarily detained patients with a mental disorder to ensure that incapable adults who are at risk of deprivation of liberty are lawfully detained. In Ireland there continues to be inequality in the treatment of involuntarily admitted patients – with or without capacity – and voluntary or informal patients. However there is no data available on the number of such incapable compliant patients in Ireland. This in itself is a cause for concern and comment and a thorough mainstreaming policy would also impact on this as it would require the collection of detailed and gender disaggregated data.

Mainstreaming also requires all policies and legislative provisions to be alert to the impact of circumstances on a person’s ability to access services or rights. This contributes to an awareness of the situated subject. Mainstreaming requires that those in positions of power are aware of the importance of gender, and also other factors that contribute to marginalisation, and that there is gender balance among those making important decisions. Mullally observes that gender equality has both a qualitative and quantitative aspect. The quantitative aspect is the equal distribution of women and men in all areas of society. The qualitative element “implies that the knowledge, experiences and values of both women and men are given equal weight and used to enrich and direct all social areas and endeavours.”[2] In relation to the MHA 2001 an area which would seem appropriate for the application of this approach to gender balance would be the composition of the mental health tribunals. These tribunals review the admission orders and renewal orders of every patient involuntarily admitted to an approved centre under the terms of the MHA 2001. However, there is no policy in place requiring both men and women to sit on each tribunal panel.

An example of mainstreaming being applied to greater effect in Ireland is evident in the inclusion of mainstreaming into the requirements for funding under the National Development Plan (NDP). There are clear guidelines in place and work has begun on gathering gender disaggregated data which will also be beneficial in the development of gender aware policies outside of the terms of the NDP. Applications for overseas aid must also be gender proofed. However, the funding for gender mainstreaming has been reduced considerably in recent budgets and is likely to be reduced still further and many of the aims of the National Women’s Strategy in respect of mainstreaming have not yet been implemented. While the cutbacks in relation to mainstreaming are disappointing, it is positive to note that it is possible to operate an effective mainstreaming policy, as evidenced by the NDP.

To date there is no evidence of a concerted effort to introduce a strong mainstreaming policy in the mental health area. Given the current economic difficulties facing the country it is unlikely that the area of mental health, which has always been under-resourced, or the mainstreaming project will benefit from a significant injection of resources in the short-term. However, Fine Gael and Labour both committed to reviewing and reforming mental health law, in accordance with international law provisions, in their election manifestos.  Labour also committed to introducing mental capacity legislation. Therefore it is useful to reflect on these ideas and to illustrate the impact that mainstreaming could have on mental health law in an effort to inform the future policy development of the new Government coalition partners.


[1] See Philip Fennell, “Doctor Knows Best? Therapeutic Detention Under Common Law, the Mental Health Act, and the European Convention” (1998) 6 Med Law Rev 322 and Fenella Morris, “Mental Health Law After Bournewood: Some Legal and Practical Implications” (1999) Journal of Mental Health Law 41.

[2] Siobhán Mullally, Gender proofing in the context of the European Structural Funds: Outline Guidelines (Dublin: Government Stationary Office, 1999) at 21.

International women’s day provides a space to reflect on the role of women in society and the contribution of feminisms and feminist theories in a wide variety of contexts. I would like to take the opportunity to draw attention to one small but practical contribution that gender mainstreaming could make to Irish mental health law. Gender mainstreaming is one practical method of applying contemporary feminist theories within the law-making process. It began as a way of ensuring that legislative provisions did not discriminate against women, even where the legislation appeared to be gender-neutral on the surface. This was subsequently expanded to ensure that mainstreaming also tackled other factors that could contribute to discrimination, such as poverty, race, age and disability. It aims to take account of the situated subject and the difficulties faced by people in their lived realities when developing policy and drafting legislation. The Mental Health Act 2001 (MHA 2001) is the current legislative framework regulating civil mental health law in Ireland and it is professed to be a rights-based model of mental health law. When it was fully commenced in November 2006 it was considered to be a significant improvement on the Mental Treatment Act 1945 which was a very paternalistic model of mental health law.

Mainstreaming theory has not been implemented fully in the context of Irish mental health law. Since 1993 all Memoranda to Government are to be gender proofed, however, in practice this policy merely operates as a checklist. According to the Mental Health Unit in the Department of Health and Children, the Memorandum for Government in relation to the MHA 2001 would have been subject to gender proofing. However, it is important to note that the Memorandum to Government is one of the very earliest steps in the legislative process and, as such, any proofing can only be of the most cursory nature. The failure to adequately mainstream mental health law is disappointing as an effective mainstreaming policy could have a significant impact on the rights-based model in place.

For example, one of the core objectives of mainstreaming is to encourage equality. Generally this is understood in terms of equality of outcome, such as the elimination of disadvantage. However, there are other elements such as equality of access and participation. De facto equality is not just the formal right to participate but also the ability to exercise that right. The gap between the existence of a right and the effective exercise of that right is a significant issue in the context of Irish mental health law. There are particular concerns in relation to incapable compliant patients with mental disorders who are “voluntarily” admitted for treatment in circumstances where they may lack the necessary capacity to consent to admission. This group includes people with severe and profound mental disabilities, elderly people with advanced dementia, and people with severe mental disorders that affect legal capacity. Such “voluntary” or informal patients are not entitled to any automatic periodic review of admission and treatment as they do not come within the statutory framework of safeguards currently in operation. This may well amount to an unlawful deprivation of liberty in breach of Article 5 of the European Convention on Human Rights. For further discussion of this issue see the case of HL v United Kingdom (2005) 40 EHRR 761 and the widespread discussion in the UK on the implications of what was referred to as the Bournewood case[1]. Following on from this decision the Mental Health Act 2007 introduced a system of automatic periodic review in the UK which operates in parallel to the review procedure for involuntarily detained patients with a mental disorder to ensure that incapable adults who are at risk of deprivation of liberty are lawfully detained. In Ireland there continues to be inequality in the treatment of involuntarily admitted patients – with or without capacity – and voluntary or informal patients. However there is no data available on the number of such incapable compliant patients in Ireland. This in itself is a cause for concern and comment and a thorough mainstreaming policy would also impact on this as it would require the collection of detailed and gender disaggregated data.

Mainstreaming also requires all policies and legislative provisions to be alert to the impact of circumstances on a person’s ability to access services or rights. This contributes to an awareness of the situated subject. Mainstreaming requires that those in positions of power are aware of the importance of gender, and also other factors that contribute to marginalisation, and that there is gender balance among those making important decisions. Mullally observes that gender equality has both a qualitative and quantitative aspect. The quantitative aspect is the equal distribution of women and men in all areas of society. The qualitative element “implies that the knowledge, experiences and values of both women and men are given equal weight and used to enrich and direct all social areas and endeavours.”[2] In relation to the MHA 2001 an area which would seem appropriate for the application of this approach to gender balance would be the composition of the mental health tribunals. These tribunals review the admission orders and renewal orders of every patient involuntarily admitted to an approved centre under the terms of the MHA 2001. However, there is no policy in place requiring both men and women to sit on each tribunal panel.

An example of mainstreaming being applied to greater effect in Ireland is evident in the inclusion of mainstreaming into the requirements for funding under the National Development Plan (NDP). There are clear guidelines in place and work has begun on gathering gender disaggregated data which will also be beneficial in the development of gender aware policies outside of the terms of the NDP. Applications for overseas aid must also be gender proofed. However, the funding for gender mainstreaming has been reduced considerably in recent budgets and is likely to be reduced still further and many of the aims of the National Women’s Strategy in respect of mainstreaming have not yet been implemented. While the cutbacks in relation to mainstreaming are disappointing, it is positive to note that it is possible to operate an effective mainstreaming policy, as evidenced by the NDP.

To date there is no evidence of a concerted effort to introduce a strong mainstreaming policy in the mental health area. Given the current economic difficulties facing the country it is unlikely that the area of mental health, which has always been under-resourced, or the mainstreaming project will benefit from a significant injection of resources in the short-term. However, Fine Gael and Labour both committed to reviewing and reforming mental health law, in accordance with international law provisions, in their election manifestos. Labour also committed to introducing mental capacity legislation. Therefore it is useful to reflect on these ideas and to illustrate the impact that mainstreaming could have on mental health law in an effort to inform the future policy development of the new Government

International women’s day provides a space to reflect on the role of women in society and the contribution of feminisms and feminist theories in a wide variety of contexts. I would like to take the opportunity to draw attention to one small but practical contribution that gender mainstreaming could make to Irish mental health law. Gender mainstreaming is one practical method of applying contemporary feminist theories within the law-making process. It began as a way of ensuring that legislative provisions did not discriminate against women, even where the legislation appeared to be gender-neutral on the surface. This was subsequently expanded to ensure that mainstreaming also tackled other factors that could contribute to discrimination, such as poverty, race, age and disability. It aims to take account of the situated subject and the difficulties faced by people in their lived realities when developing policy and drafting legislation. The Mental Health Act 2001 (MHA 2001) is the current legislative framework regulating civil mental health law in Ireland and it is professed to be a rights-based model of mental health law. When it was fully commenced in November 2006 it was considered to be a significant improvement on the Mental Treatment Act 1945 which was a very paternalistic model of mental health law.

Mainstreaming theory has not been implemented fully in the context of Irish mental health law. Since 1993 all Memoranda to Government are to be gender proofed, however, in practice this policy merely operates as a checklist. According to the Mental Health Unit in the Department of Health and Children, the Memorandum for Government in relation to the MHA 2001 would have been subject to gender proofing. However, it is important to note that the Memorandum to Government is one of the very earliest steps in the legislative process and, as such, any proofing can only be of the most cursory nature. The failure to adequately mainstream mental health law is disappointing as an effective mainstreaming policy could have a significant impact on the rights-based model in place.

For example, one of the core objectives of mainstreaming is to encourage equality. Generally this is understood in terms of equality of outcome, such as the elimination of disadvantage. However, there are other elements such as equality of access and participation. De facto equality is not just the formal right to participate but also the ability to exercise that right. The gap between the existence of a right and the effective exercise of that right is a significant issue in the context of Irish mental health law. There are particular concerns in relation to incapable compliant patients with mental disorders who are “voluntarily” admitted for treatment in circumstances where they may lack the necessary capacity to consent to admission. This group includes people with severe and profound mental disabilities, elderly people with advanced dementia, and people with severe mental disorders that affect legal capacity. Such “voluntary” or informal patients are not entitled to any automatic periodic review of admission and treatment as they do not come within the statutory framework of safeguards currently in operation. This may well amount to an unlawful deprivation of liberty in breach of Article 5 of the European Convention on Human Rights. For further discussion of this issue see the case of HL v United Kingdom (2005) 40 EHRR 761 and the widespread discussion in the UK on the implications of what was referred to as the Bournewood case[1]. Following on from this decision the Mental Health Act 2007 introduced a system of automatic periodic review in the UK which operates in parallel to the review procedure for involuntarily detained patients with a mental disorder to ensure that incapable adults who are at risk of deprivation of liberty are lawfully detained. In Ireland there continues to be inequality in the treatment of involuntarily admitted patients – with or without capacity – and voluntary or informal patients. However there is no data available on the number of such incapable compliant patients in Ireland. This in itself is a cause for concern and comment and a thorough mainstreaming policy would also impact on this as it would require the collection of detailed and gender disaggregated data.

Mainstreaming also requires all policies and legislative provisions to be alert to the impact of circumstances on a person’s ability to access services or rights. This contributes to an awareness of the situated subject. Mainstreaming requires that those in positions of power are aware of the importance of gender, and also other factors that contribute to marginalisation, and that there is gender balance among those making important decisions. Mullally observes that gender equality has both a qualitative and quantitative aspect. The quantitative aspect is the equal distribution of women and men in all areas of society. The qualitative element “implies that the knowledge, experiences and values of both women and men are given equal weight and used to enrich and direct all social areas and endeavours.”[2] In relation to the MHA 2001 an area which would seem appropriate for the application of this approach to gender balance would be the composition of the mental health tribunals. These tribunals review the admission orders and renewal orders of every patient involuntarily admitted to an approved centre under the terms of the MHA 2001. However, there is no policy in place requiring both men and women to sit on each tribunal panel.

An example of mainstreaming being applied to greater effect in Ireland is evident in the inclusion of mainstreaming into the requirements for funding under the National Development Plan (NDP). There are clear guidelines in place and work has begun on gathering gender disaggregated data which will also be beneficial in the development of gender aware policies outside of the terms of the NDP. Applications for overseas aid must also be gender proofed. However, the funding for gender mainstreaming has been reduced considerably in recent budgets and is likely to be reduced still further and many of the aims of the National Women’s Strategy in respect of mainstreaming have not yet been implemented. While the cutbacks in relation to mainstreaming are disappointing, it is positive to note that it is possible to operate an effective mainstreaming policy, as evidenced by the NDP.

To date there is no evidence of a concerted effort to introduce a strong mainstreaming policy in the mental health area. Given the current economic difficulties facing the country it is unlikely that the area of mental health, which has always been under-resourced, or the mainstreaming project will benefit from a significant injection of resources in the short-term. However, Fine Gael and Labour both committed to reviewing and reforming mental health law, in accordance with international law provisions, in their election manifestos.  Labour also committed to introducing mental capacity legislation. Therefore it is useful to reflect on these ideas and to illustrate the impact that mainstreaming could have on mental health law in an effort to inform the future policy development of the new Government coalition partners.


[1] See Philip Fennell, “Doctor Knows Best? Therapeutic Detention Under Common Law, the Mental Health Act, and the European Convention” (1998) 6 Med Law Rev 322 and Fenella Morris, “Mental Health Law After Bournewood: Some Legal and Practical Implications” (1999) Journal of Mental Health Law 41.

[2] Siobhán Mullally, Gender proofing in the context of the European Structural Funds: Outline Guidelines (Dublin: Government Stationary Office, 1999) at 21.

coalition partners.


[1] See Philip Fennell, “Doctor Knows Best? Therapeutic Detention Under Common Law, the Mental Health Act, and the European Convention” (1998) 6 Med Law Rev 322 and Fenella Morris, “Mental Health Law After Bournewood: Some Legal and Practical Implications” (1999) Journal of Mental Health Law 41.

[2] Siobhán Mullally, Gender proofing in the context of the European Structural Funds: Outline Guidelines (Dublin: Government Stationary Office, 1999) at 21.