Gautam Gulati, Colum P. Dunne, and Brendan D. Kelly

The COVID-19 pandemic is a time of unprecedented tension between the rights of the individual and those of society. Internationally, new regulations govern freedom of movement, access to healthcare and, in some countries, “intrusive biopolitics”.¹ This presents the complex interface between human rights and public health.

Prior to the current pandemic, the clearest examples of the tensions between the well-being of the individual and that of society were also in respect of infectious diseases (for example, tuberculosis) and, separately, mental health. Arrangements to contain the spread of infectious and potentially fatal diseases using legislation if necessary have existed historically.² In recent times, prior to the 2020 pandemic, such legislation was used rarely and only in exceptional circumstances. In addition, mental health legislation was and is used on occasion to address treatable mental disorder associated with a risk to self or others.

Traditionally, the vast majority of health and personal decisions have been governed by the principles of autonomy and personal choice, and this remains the case today. However, COVID-19 related measures, both governmental healthcare policy and legislative changes, raise important human rights issues as they have the potential to disproportionately affect vulnerable populations. We discuss this in the context of people with mental illness in involuntary care and people with disabilities, citing specific legislative or policy decisions in the Republic of Ireland and the United Kingdom.

People with mental illness in involuntary care

In the context of mental health settings, the pandemic can imperil the right to liberty. Within the first few weeks of the outbreak, many jurisdictions made amendments to mental health legislation. In Ireland, these changes allowed for the reduction of the number of people on mental health tribunals—independent panels that review the legality and proportionality of psychiatric admission and treatment without consent.³ The rationale for the change was to reduce the risk of coronavirus transmission. Additional changes to Irish law in the Emergency Measures in the Public Interest (Covid-19) Act 2020 allowed for variation in the previous requirement for an independent face-to-face psychiatric second opinion and the arrangements that a person admitted voluntarily had the opportunity to attend the tribunal in person to make their case.

In the UK, legislative changes (Coronavirus Act 2020) allowed for single (rather than dual) medical recommendations for involuntary admission, varied the requirement for an independent second opinion doctor to certify treatment without consent, and also permitted changes in the composition of tribunals.

Even prior to these measures, there was evidence that mental health tribunals did not commonly reverse decisions to admit individuals involuntarily. There is now a concern that these changes come “at a cost to the patient”.⁴ Further, practices that can involve isolating people in mental health units as part of enhanced infection control measures raise further questions about safeguards in respect of deprivation of liberty, particularly in the absence of statutory appeal rights.⁵

People with disabilities

In the case of people with disabilities, the pandemic poses a threat to rights to equal treatment and autonomy. COVID-19 created a risk that available healthcare resources would be overwhelmed, and some form of triage would become necessary for critical life-saving interventions, such as mechanical ventilation. Many countries developed policies and guidance for frontline clinicians to guide decision-making. Some of this guidance, even if unintentionally, disadvantaged people with disabilities.⁶

One example from the UK was the recommendation to use the “clinical frailty scale” in advance care-planning for making end-of-life decisions. After human rights concerns were raised, further guidance was produced clarifying this was unsuitable for use in people with intellectual disabilities. Separately, media reports cited cases where groups of individuals with disabilities were targeted in respect of making advance directives around end-of-life decisions or where such directives were made without involving the individual themselves or their families—an unacceptable breach of the right to equality and autonomy.⁷

Conclusions

COVID-19 related changes in legislation and policy have the potential to impact rights to liberty, equality, and autonomy in people with mental illness in involuntary care and those of people with disabilities. Death rates from COVID-19 in vulnerable populations, such as those in care, now exceed those of the general population.⁸ For these populations, the pandemic arguably poses a greater threat to the right to life.

Where decisions taken for the good of society disproportionately impact a minority group, there is a duty on states to act responsibly to safeguard rights. A healthy debate must be encouraged whenever the powers of the state are increased in a way that threatens to eradicate or weaken individual rights, so as to prevent unjustified erosion of those rights. People with disabilities must have a voice in this debate.

Gautam Gulati, MD, is a Consultant Forensic Psychiatrist in Ireland and Chair of the Faculty of Forensic Psychiatry at the College of Psychiatrists of Ireland. Email: Gautam.gulati@hse.ie

Colum P Dunne, PhD, is the Foundation Professor and Director of Research at the University of Limerick’s Medical School.

Brendan D Kelly, PhD, is Professor of Psychiatry at Trinity College Dublin, specialising in ethics and law.

References

1. O. Nay, “Can a virus undermine human rights?”, Lancet Public Health 5/5 (2020), p. e238‐e239.
2. W. E. Parmet and M. S. Sinha, “Covid-19 – The Law and Limits of Quarantine,” New England Journal of Medicine 382/15 (2020), p. e28.
3. B. D. Kelly, “Emergency mental health legislation in response to the Covid-19 (Coronavirus) pandemic in Ireland: Urgency, necessity and proportionality”, International Journal of Law and Psychiatry 70 (2020), p. 101564. doi:10.1016/j.ijlp.2020.101564
4. B. D. Kelly, “Monitoring the Mental Health Act amendments”, The Medical Independent (May 22, 2020). Available at https://www.medicalindependent.ie/monitoring-the-mental-health-act-amendments/
5. C. Brown, A.R. Keene, C.R. Hooper, and A. O’Brien, “Isolation of patients in psychiatric hospitals in the context of the COVID-19 pandemic: An ethical, legal, and practical challenge,” International Journal of Law and Psychiatry 101572 (2020).
6. G. Gulati, E. Fistein, C. P. Dunne, B. D. Kelly, and V. E. Murphy, “People with Intellectual Disabilities and the COVID-19 Pandemic,” Irish Journal of Psychological Medicine (2020), pp. 1-5. doi:10.1017/ipm.2020.66
7. R. Thomas, “Unprecedented’ number of DNR orders for learning disabilities patients,” Health Service Journal (April 24, 2020). Available at: https://www.hsj.co.uk/coronavirus/unprecedented-number-of-dnr-orders-for-learning-disabilities-patients/7027480.article
8. A. O’Dowd, “Covid-19: Deaths in care home deaths in England and Wales rise sharply,” British Medical Journal 369 (2020), p. m1727. doi:10.1136/bmj.m1727