International womenâ€™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 â€œvoluntarilyâ€ 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 â€œvoluntaryâ€ 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. 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 â€“ with or without capacity â€“ 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 personâ€™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 â€œimplies 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.â€ 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 Womenâ€™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.Â 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.
 See Philip Fennell, â€œDoctor Knows Best? Therapeutic Detention Under Common Law, the Mental Health Act, and the European Conventionâ€ (1998) 6 Med Law Rev 322 and Fenella Morris, â€œMental Health Law After Bournewood: Some Legal and Practical Implicationsâ€ (1999) Journal of Mental Health Law 41.
 SiobhÃ¡n Mullally, Gender proofing in the context of the European Structural Funds: Outline Guidelines (Dublin: Government Stationary Office, 1999) at 21.