Mairead Leen, a recent UCC Masters in Law graduate with a keen interest in disability law and journalism (pictured), writes on the potential deprivation of liberty of some homeless people during Storm Emma.

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?