Abstract

This article will trace the key legislative interventions in the lives of persons with disabilities in Ireland. It will explore the growth of a vast network of institutions and the subsequent legislative powers which were introduced to allow for the removal of persons deemed "dangerous" or "mad" from society. In particular, it will consider the powers afforded to police officers during both the age of institutionalisation and the age of deinstitutionalisation in the late twentieth century. It will be argued that the police have played a historically important role in the control and confinement of deviant persons, yet little is known about the extent to which they were involved in the removal of individuals to institutions such as asylums and workhouses. The police continue to play an integral role in the contemporary mental health system and this article will question whether this is appropriate especially in light of Ireland's ratification of the UN Convention on the Rights of Persons with Disabilities.


Introduction

Disability has long been recognised as a source of stigma, particularly for persons with mental illness and intellectual disabilities (Schur, Kruse, & Blanck, 2013). 1 This stigma can arguably be traced back to early legislative interventions which allowed for the removal of people with disabilities to asylums and workhouses in the eighteenth and nineteenth centuries. These practices have legitimised false prejudices held by societies and have contributed to the narrative of the "lunatic" and the "insane" who was often dangerous and in need of care. Ireland is a clear example of this. There, an extensive network of institutions was established in line with other European countries and various sources of law were introduced to allow for the removal of people with disabilities and mental illnesses to these settings. Legislation, as interpreted by magistrates, police officers and doctors, soon became the primary determinant of madness, lunacy and idiocy in Ireland (Finnane, 1981) and was used to facilitate the mass institutionalisation movement. The interrelationship between policing and psychiatry was particularly pronounced during this time and contributed to the notion that mental illness, in particular, was a condition that was dangerous and therefore needed to be controlled and contained (see Foucault, 1995). It is somewhat surprising, therefore, that the convergence between the studies of disability, mental health and policing is under-researched in Ireland and as such, relatively little is known about the extent to which the police were involved in the lives of people with disabilities. This article will therefore aim to shed light on the role of the police during the age of the asylums and highlight how disability came to be seen as a threat to public order and stability (see Rothman, 1971).

The discussion will begin by examining the factors which led to the establishment of the asylum network and the laws introduced to allow for the removal of persons to these institutions. It will specifically examine the period up until Irish Independence in 1922 following the Irish Free State (Agreement) Act 1922, and the raft of legislation imposed by the British Government as part of their Poor Laws. It will then proceed to consider the introduction of new dangerous lunacy laws and procedures under which one could be admitted to an asylum. Section two will then turn to consider the role of the police during the nineteenth and twentieth centuries, and the powers afforded to police officers to detain persons with disabilities and mental illness. It will illustrate how the rise of the asylum coincided with the formation of policing in Ireland, namely the Royal Irish Constabulary (RIC) set up under the Constabulary Act 1822 (and consolidated by the Constabulary (Ireland) Act 1836). This was overseen by Sir Robert Peel during his time as Chief Secretary of Ireland. Peel is not only said to be the 'father' of modern policing but also had a particular interest in 'the provision for lunatics' (Finnane, 1981). This simultaneous emphasis on policing and institutionalisation marked an interesting turning point in the organisation of local governance and reflected the global rise of State interventionism in the everyday lives of individuals (de Tocqueville, 1840).

The article will conclude by examining the demise of the asylums and the rise of a new disability-rights movement in the 1960s, culminating in the UN Convention on the Rights of Persons with Disabilities. This marks a new turning point in disability history and creates a benchmark from which we can assess a States' response and treatment of people with disabilities. It will then turn to examine Articles 13 and 14 of the Convention, before considering the wider implications the Convention will have for policing moving forward.

The Rise of the Asylum

In considering the early perceptions and treatment of people with disabilities, it is first necessary to examine the sociohistorical and political backdrop before the period of Irish Independence. For much of the seventeenth and eighteenth centuries, Ireland was consumed by overpopulation, high rates of poverty, low economic production, political unrest and social disorder. In 1800, the Irish parliament was officially abolished, and the United Kingdom of Great Britain and Ireland was formally established under the Act of Union (Kelly, 1987). It was during the period of British rule that the asylum network began to emerge and flourish, as will be discussed further below, as a means of creating total control and order within society. The Union remained in place up until 1921 when the Irish Free State was established (minus six counties in Ulster which are now referred to as Northern Ireland and remains under British rule) by way of the Anglo-Irish Treaty.

The sudden rise of the asylum network in Ireland cannot be understood without first considering the laws and social policies introduced during the period of the early Poor Laws in the United Kingdom. In 1601, the Poor Relief Act was introduced in England and Wales to create a coherent system under which local Parishes were tasked with providing poor relief to curb the social problems associated with vagrancy and begging (King 2000, McCashin 2004). This law gave rise to a key distinction between the concepts of "deserving" and the "undeserving" poor (Smith, 2010). State relief was provided to those who were unable to work through no fault of their own, and therefore "deserving" such as widows, orphans, the elderly and the sick. In contrast to the deserving category, the law also introduced a corollary category made up of people deemed "undeserving" such as "idle-vagrants" and beggars (Hollen Lees, 1998). By categorising people in this way, the existence of disability developed as an administrative question which sought to separate people based on their economic value and ability to work (Smith, 2010). This is perhaps one of the earliest examples of ableism and "othering" in law and as such, persons with disabilities and mental illness were perceived as being "abnormal" and of lesser value in society (Drake, 1999). Soon after the 1601 Act was introduced, Houses of Correction were established pursuant to the Vagrancy Act 1609 to provide accommodation and employment for 'rogues, vagabonds, sturdy beggars and other idle and disorderly persons' (Fennell, 2010).

The turn of the eighteenth century saw considerable economic growth and development in England, however in Ireland, people continued to experience poverty amidst a poor period of economic stability, political unrest and the effects of overpopulation (Robins, 1986). Crucially, Ireland was not bound by the 1601 Act and in the absence of such State support, matters relating to persons with disabilities were dealt with by families or within the wider community. This arrangement was enshrined in early Irish law (known as Brehon Law), which held families accountable for the care of "fools" and "lunatics" (Brennan, 2015). In reality, families were unable to provide sufficient care and the evidence, therefore, suggests that many people with disabilities were abandoned or forced to live in very poor conditions, with some being kept in outhouses, huts or chained to trees or walls (Smith, 2010). This in turn contributed to the already high levels of vagrancy among the Irish population and before long, there was growing pressure on the Government to intervene and provide support and housing for "lunatics" and the poor. It was not until 1703 that the workhouse was established in Ireland to provide direct provision to employ and maintain the poor. Also known as Houses of Industry, these establishments played an important role in ensuring social order and maintaining control during the eighteenth century (Considine & Dukelow, 2009).

Within these settings, there was a particular emphasis on the provision of medical relief (Walsh, 1999). While these infirmaries were originally established to provide care for physical ailments, evidence collected from the North Dublin Union indicates that this led to an unwanted increase in admissions amongst "lunatic paupers" for the purpose of receiving medical relief (Crossman, 2013). The numbers of people with disabilities continued to grow across these institutions, resulting in the introduction of Lunatic Wards pursuant to the Prisons (Amendment) Act 1787. This marked the first legislative response to the perceived problems associated with mental illness in Ireland. This intervention aimed to bring order to the workhouses (and prisons) by means of segregating "lunatics" and "idiots" from the general inmate populations. Despite this, problems of overcrowding soon arose in these settings and further interventions were deemed essential. This followed reports of inadequate facilities in the workhouses as evidenced by information gathered during an investigation which found that it was 'at times a source of extreme difficulty to contrive the means of accommodation for this hurried weight of human calamity' (Hallaran, 1810). The weight of evidence presented to the House of Commons depicted a bleak overview of the lives of people in these settings:

When a strong man or woman gets the complaint [mental disorder], the only way they have to manage is by making a hole in the floor of a cabin, not high enough for the person to stand up in, with a crib over it to prevent his getting up. This hole is about five feet deep, and they give this wretched being his food there, and there he generally dies (cited in Williamson, 1970).

This evidence formed part of a report which was commissioned by the aforementioned Chief Secretary of Ireland, Robert Peel, to enquire into the public care of the insane (McClelland, 1988). It concluded that the existing accommodation was 'totally inadequate for the reception of the lunatic poor' (Lunatic Asylums Ireland Commission, 1858). Kelly explains that on account of this reported "human calamity," legislation was subsequently introduced in 1817 to establish a vast network of District Asylums across the country (Kelly, 2014). The Poor Relief (Ireland) Act 1838 was subsequently introduced to provide for the first statutory system of welfare in Ireland (McCashin, 2004) over two hundred years since the 1601 Act in England and Wales. Peel's report undoubtedly marked a turning point in Irish history, but it is particularly interesting in this context due to the emphasis on institutional confinement as a panacea for the problems associated with vagrancy, poverty and disability. At the same time, there was a growing concern across the United Kingdom and Ireland about the dangers and risks posed by the insane. Public pressure began to mount in relation to the continued practice of confining these people amongst the general gaol and workhouse populations, and from this, there was a growing emphasis on the need to protect people from the 'violence of the insane' (Finnane, 1981). This is perhaps one of the first indications of the link between the notion of "dangerousness" and mental illness during the nineteenth century, which will be explored further in the following section.

Dangerous Lunacy Laws

Asylums quickly became of great social significance in Ireland and were seen as a welcome improvement to the earlier workhouses. Between 1810 and 1869, 22 asylums were built around the country and admission rates increased steadily throughout the nineteenth century (Considine & Dukelow, 2009). One of the most famous asylums, the Richmond Asylum, opened in 1815 to replace the lunatic ward of the Dublin Workhouse and was originally designed to accommodate up to 300 people (O'Brien, Browne, & O'Malley, 1988). As Ireland's first public psychiatric hospital, there was a strong emphasis on curing and treating those with mental illness (Kelly, 2007). Once again, there was an emphasis on segregating people within this setting into different categories: the violently disordered, the incipiently disordered and those who appear to be restored and are being retained on a probationary basis to allow for further inquiry into the 'state of their intellects' (Reynolds, 1992). On account of the perceived danger lunatics posed to society, their detention in the asylum was typically indefinite. Before long, Richmond also became seriously overcrowded and there was a marked increase in the number of "incurable" patients for whom there was no proper accommodation apart from the lunatic asylum. Moreover, there was an increase in the number of criminal and dangerous lunatics being referred to these institutions from gaols (Reynolds, 1992). In response to this, district lunatic asylums were established outside of Dublin in 1821 to provide for the compulsory detention of 'criminal lunatics' who had been convicted of sedition, murder or other offences (Reynolds, 1992).

It is important to emphasise the significance of public perceptions and the attitudes towards persons with disabilities during this period, as they were later borne out in legislation that sought to control and respond to the dangers posed by lunatics. The Criminal Lunatics (Ireland) Act 1838 was one such example of this. This law provided for the transfer of individuals from prisons to an asylum if they were considered to be dangerous, mentally ill or intellectually disabled (Kelly, 2009). An individual could also be committed under this Act by two Justices of the Peace, on the basis of sworn evidence by a third party (usually a family member) (Walsh, 1999). Crucially, medical evidence to support one's detention was not needed at first and this led to a relatively straightforward admission process. This oversight was later revised in 1867 and a medical certificate was needed to support an application for admission.

One of the most interesting elements of the 1838 Act was that it linked the Irish prison and the asylum systems together, under the control of the Lord Lieutenant's Office. Walsh explains that it quickly became apparent that these asylums were envisaged as 'tailored institutions for the imprisonment of the insane' (Walsh, 1999). Known as the 'dangerous lunacy' procedure, admissions under the 1838 Act soon became the admission pathway of choice (Brennan, 2015), in part because it dispensed with the need for a certificate of poverty, thereby making it easier for relatives to have their family members committed. This does not mean that families enjoyed total autonomy; Cox explains that there were limits in place which required relatives to 'negotiate with other actors, including police, magistrates and dispensary doctors' before an admission would be permissible (Cox, 2012). This safeguard was introduced primarily as a means of controlling the number of people being admitted to these sites of confinement, which were already at capacity in most areas.

Another factor that is particularly important for this discussion is the role of police officers under this Act. While policing will be discussed further in the following section, it is worth noting that the 1838 Act required police officers to transport people to district asylums, thereby removing any obligation on behalf of families to carry out this responsibility (Kelly, 2009). The relative ease at which people could be confined to these institutions ultimately led to the admissions procedure becoming widely abused (Prior, 2003). The defining requirement for admission under this Act was that the individual was "dangerous." The mere perception of dangerousness was sufficient; it was not necessary to show that the individual in question had committed a crime or had done anything wrong. In this way, mental illness, particularly schizophrenia, became synonymous with dangerousness and the identification of this condition alone was enough to justify admission.

Soon after, the Lunatics Asylums (Ireland) Act 1845 was introduced to provide further powers in response to dangerous lunatics. Most importantly, this established The Central Mental Hospital (CMH) in Dublin to provide 'a central asylum for insane persons charged with offences in Ireland' (Kelly, 2010). To this day, it is Ireland's only National Forensic Mental Health Service. Interestingly, this was the first secure facility for criminal lunatics in Europe, predating Broadmoor Asylum in England which was first opened in 1863 (Bartlett & Sandland, 2007). The CMH provided care and treatment to 'mentally disordered' offenders who were transferred to the hospital following a court order or who had been transferred from prison or other psychiatric facility. The decision was made early to not co-locate the CMH with prison as 'lunatics were not criminals and should, therefore, not be treated in the same way or on the same premises – in other words, lunatics and criminals were different kinds of people and therefore warranted different institutional approaches' (Prior, 2004). While this could be said to be an enlightened decision, particularly for the time, the CMH was still a custodial institution in which people were forcibly detained, most often indefinitely, and treated against their will. Towards the latter half of the nineteenth century, the CMH began to experience problems with overcrowding. Between 1854 and 1856, dangerous lunatics made up 41.8% of male admissions to district asylums, whereas female admissions amounted to 31.8% (Finnane, 1981). These figures continued to rise steadily and by 1890, dangerous male lunatics were said to amount to 75.7%, with the figure rising to 67.3% for women (ibid). This increase is especially surprising when one considers the impact of The Great Irish Famine from 1845-49 and the subsequent decline in the population by approximately one third due to death and mass emigration (ibid). Curiously, the numbers of people detained in institutions rose sevenfold (ibid), with Kelly (2016) attributing this rise to the relatively straightforward admission procedure set out in the Criminal Lunatics (Ireland) Act 1838.

The number of dangerous lunatics continued to rise following the increase of 'guilty but insane' verdicts in Irish courts during the 1880s (Kelly, 2016); the result of which led to automatic indefinite detention of patients in the CMH (McNamara, 2018). This plea was set out in the Trial of Lunatics Act 1883 which sought to introduce significant changes to the law of criminal responsibility in Ireland. Most importantly, a new exculpatory threshold was introduced which required one's condition to be of such a nature that they resembled a beast, as opposed to a man. This followed the leading case of R v Arnold (1724):

It is not every kind of frantic humour, or something unaccountable in a man's behaviour, that points him out to be such a man as is exempted from punishment; it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or wild beast; such a one is never the object of punishment (Jones, 1955).

The effect of this was such that the 1883 Act introduced a new verdict in Irish insanity law to 'guilty but insane' under s. 2(1). 2 Should the jury reach this conclusion, the individual was detained as a criminal lunatic indefinitely, or until such time as the Lord Lieutenant (and following Irish Independence, the Executive branch of government) made an order granting their release (McNamara, 2018). While the apparent upsurge in insanity verdicts was not unique to Ireland at this time (Bowers, 1998), the 1883 Act was a particularly significant example of State intervention which remained on the Statute Book up until the Criminal Law (Insanity) Act 2006. Aside from the correlation between the passing of this Act and the upsurge in the numbers of people detained, it also illustrates the way in which mental health was perceived as a dangerous condition which in turn justified the indefinite removal of an individual from society based on their perceived dangerousness.

Policing in the Age of the Asylum

As laws began to emerge in the nineteenth century allowing for the removal of persons with disabilities to asylums, the police came to play a particularly important role in their communities as enforcers of this new regime. During his time as Chief Secretary, Peel was said to have had two main objectives: the creation of a specialist police force and the establishment of a system of public asylums (Brown, 2015). In considering the rise of State control and governance during the nineteenth century, this dual emphasis on policing and institutionalisation offers an interesting lens through which we can examine early State interventions in the lives of its citizens.

While the nineteenth century was a critically important period in the States' response to disability and mental health, this period also saw the rise in a new approach to policing. Across Europe, a shift began to develop towards the idea of "State" law, which was influenced by increased urbanisation and the growing distinction between rich and poor, subsequently leading to the expansion of State authority (Churchill, 2014). Peel's early model of policing sought to prioritise effective State governance as a means to increase control over the public. To this end, two new organisations were set up, the Royal Irish Constabulary (RIC) and the Dublin Metropolitan Police (which predated the London Metropolitan Police) pursuant to the Dublin Police Act 1786. These organisations were made up of salaried officers who were appointed to assist with law enforcement, the maintenance of public order and to apprehend offenders (Boyle, 1972). State intervention and institutionalisation became even more widespread during the nineteenth century following the introduction of the Dublin Police Act 1836, which provided for the reorganisation of the Dublin police. This Act afforded police officers the power to apprehend those who were 'loose, idle and disorderly', or who were suspected to be of 'evil designs' (s. 7):

It shall be lawful for any man belonging to the said police force, during the time of his being on duty, to apprehend all loose, idle, and disorderly persons whom he shall find disturbing the public peace, or whom he shall have just cause to suspect of any evil designs, and all persons whom he shall find between sunset and the hour of eight in the forenoon lying in any highway, yard, or other place, or loitering therein, and not giving a satisfactory account of themselves, and to deliver any person so apprehended into the custody of the constable appointed under this Act, who shall be in attendance at the nearest watch-house, in order that such person may be secured until he can be brought before a justice of the peace, to be dealt with according to law, or may give bail for his appearance before a justice of the peace, if the constable shall deem it prudent to take bail, in the manner herein-after mentioned.

Following the establishment of this new model of policing in 1836, alongside the aforementioned dangerous lunacy laws, it became clear that the asylum system was envisaged to extend far beyond the relief and care of the insane (Finnane, 1981). These reforms signalled a turning point in colonial Ireland and reflected the desire on behalf of the authorities to achieve total control. This reflects the extent of the powers afforded to police officers during this time; for example, the Criminal Lunatics (Ireland) Act 1838 required officers to contribute towards the active control of lunacy within the general population. This involved carrying out 'benign investigations' as directed by Dublin Castle (the seat of the British Government in Ireland), to make enquiries as to whether families would agree to the transfer of their relative to an asylum or make other such investigations as to the wellbeing of an individual, particularly where there has been an accusation of neglect (Finnane, 1981). The second way in which police were involved in the control of lunacy was in their remit to conduct a regular census of 'lunatics, idiots, imbeciles and epileptics' who resided outside of institutions. This proved significant as it ensured greater oversight and management of lunatics, and at one point, the police held a comprehensive record of approximately 6,000-7,000 'potential inmates of asylums' whose identities and residence were then known to the State (ibid). Further powers were introduced in the Dublin Police Act 1842, which enabled officers to arrest people without a warrant, thereby cementing police authority to intervene in cases involving loose or disorderly persons. The discretion and powers afforded to police officers are especially symbolic as they accentuated the culture of controlling people to maintain order within society. It became clear that people with disabilities or those with mental illness posed a direct threat to the status quo and the solution to this was to confine them to institutions.

Alongside families, as discussed above, police officers were often found to have taken advantage of the "lax procedures" to 'rid their communities of those deemed troubled or troublesome' (Malcolm, 2003). The use of psychiatric detention as a means to secure social control is widely recognised internationally, with Morton suggesting that 'from the beginning, the institution functioned as an extra-legal prison, not only for "mental patients" but […] for persons who were confined without any pretence of illness or treatment' (Morton, 1975). This indicates the stigmatisation surrounding mental health and disability during the nineteenth and twentieth centuries, with an overwhelming desire to lock such individuals away. It is therefore unsurprising that police officers would be inclined to exercise their powers to detain those who were perceived to be unruly, dangerous or vagrant, even where there was no evidence that they had committed a crime.

Following the demise of the Union and the advent of Irish Independence in 1922, many of the older laws relating to asylums and policing continued to apply for some time. A new police force was set up in 1923 to replace the RIC, known as An Garda Síochána. While the organisational structure of this new body closely resembled that of its predecessor, key differences were introduced to reflect the national identity of the new Irish Free State. Most importantly, the Gardaí would be an unarmed police force, as compared to the RIC which was a paramilitary colonial police force (see generally Allen, 1999; McNiffe, 1997; Conway, 2013). Significant changes were also introduced to the mental health system following the Mental Treatment Act 1945. This law afforded police officers further powers of detention for individuals who were believed to be of unsound mind (s. 165):

Where a member of the Gárda Síochána is of opinion that it is necessary that a person believed to be of unsound mind should, for the public safety or the safety of the person himself, be placed forthwith under care and control, he may take the person into custody and remove him to a Gárda Síochána station.

Once again, the law afforded a significant degree of discretion to police officers to detain individuals on the basis of the risk or danger they posed to themselves or others. This provision was subsequently challenged in the case of In Re Philip Clarke [1950] IR 235. The applicant initiated a habeas corpus application on the grounds that there were insufficient safeguards within the 1945 Act to protect their constitutional right to liberty, specifically because there was no requirement for judicial involvement in the determination of whether detention is necessary. This argument was rejected by the Irish Supreme Court, who were satisfied that adequate protections were provided within the scope of the 1945 Act, with O'Byrne J. stating [para 247-248]:

The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of the draughtsmen when it was proclaimed in Art.40.1 of the Constitution that, though all citizens, as human beings, are to be held equal before the law, the State may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function.

This passage is particularly revealing as it exposes the overwhelming paternalism within Irish laws and the ultimate desire among State authorities to ensure control by removing those individuals who pose a risk to themselves or others from the general public. O'Byrne J. further commented that:

We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others.

It is therefore clear that public fear and misconceptions about disability and mental health have been a longstanding trait in Irish law and policies. This is reflected in the Supreme Courts position in the case above, wherein it was found that a person of unsound mind could be held in preventative detention on the basis that they posed a potential risk to society. Such a problematic position, as taken by the Court, further endorsed the practice of institutionalisation as a means of control and legitimised the coercive measures taken by the State, as enforced by the police and the Courts.

The Fall of the Asylum and the Rise of the Disability Rights Movement

By the 1960s, Ireland was beginning to experience a significant decrease in the numbers of people detained in psychiatric institutions. In keeping with similar trends worldwide, a shift towards providing out-patient community care, coupled with the provision of psychopharmacological interventions, meant that institutional care was no longer required (Kilgannon, 2020). While the numbers of people detained in psychiatric institutions began to fall, there are some studies which suggests that the number of people with disabilities within prison populations increased in what became known as Penrose's hypothesis. Essentially, this suggests that there is an inverse relationship between the rise in the number of prisoners and the fall in the number of psychiatric beds in Europe (Penrose, 1939). According to Cummins, the deinstitutionalisation movement led to a 'fragmented, dislocated world of bedsits, housing projects, day centres or increasingly prisons and the criminal justice system' (Cummins, 2013).

Further research is needed in order to understand whether such a relationship existed between the closure of asylums and the apparent rise in the number of people with disabilities who came into contact with the police and the criminal justice system in Ireland. While it is often said that the police everywhere are playing the role of 'street-corner psychiatrists' (Teplin, 1984), earning them the moniker 'psychiatrists in blue' (Menzies, 1987), it is not clear if this proposition is true for Ireland. Of note, there is no information available which documents the number of interactions (or arrest rates) between the police and people with disabilities or those with mental illnesses. Considering this lack of transparency, we cannot know how often police come into contact with vulnerable individuals and whether these numbers are higher (or lower) than the number of interactions before the asylums closed in the 1960s. There is, however, limited information available which shows an overrepresentation of people with mental illness in the Irish prison population, with one study finding that the rate of psychosis among male remand prisoners was almost double the international average (Linehan, et al., 2005). Further studies also indicate an overrepresentation of people with intellectual disabilities within the prison population (Leonard, Morrison, Delany-Warner, & Calvert, 2015; Gulati, et al., 2018). While one can extrapolate some insights from these studies, it is important to note that they are largely out of date now and mostly involved small-scale studies which are perhaps not representative of the entire makeup of the Irish prison population.

It is clear that further transparency is needed generally in regard to policing in Ireland. For example, we do not know how many people are arrested each year. While estimates suggest this rate to stand at 20,000 (Lally, 2017), there are no official reports available. Moreover, we do not know the extent to which the police exercise their discretion when they come into contact with a person in mental distress. In these circumstances, it is said that officers have three options: to make a formal arrest, bring the individual to a hospital, or let them go. Brennan (2014) explains that the most convenient and less risky option for an officer is to make an arrest, rather than admitting them to a hospital where they may be released without receiving the necessary support. The degree of discretion afforded to officers in these cases is significant and as such, there is a clear a need to understand the factors which influence decision-making when officers are put in these positions. Further transparency and research would allow us to determine whether, and to what extent, officers determine outcomes based on internalised or historic false prejudices and stigmas relating to dangerousness and risk.

Further research on the interaction between persons with disabilities and the police as agents of the criminal justice system is also needed in light of Ireland's ratification of the UN Convention on the Rights of Persons with Disabilities (McNamara, 2021). This new Convention is a product of the disability rights and deinstitutionalisation movement which occurred in the 1960s alongside the civil rights movement. Disability rights advocates sought to challenge the overly medicalised conception of disability which had existed during the age of the asylums and the rise of psychiatry. According to Shakespeare (1996), as a society we had become 'socialized into thinking of disability in a medical model way' which in turn created a sense of confidence among the medical profession that disability and mental health was something that could be cured or rehabilitated in institutions. Many people began to criticise this perception of disability (Hunt, 1966) and an alternative model was developed, known as the social model. This viewed disability as a product of the built environment which requires us as a society to dismantle physical and attitudinal barriers that seek to prevent the full inclusion of persons with disabilities (Kayess & French, 2008). Many disabled activists adopted this new social model as a means of identifying their own social oppression and used it to advocate for change (Barnes, Oliver, & Barton, 2002). This model later became synonymous with the UN Convention on the Rights of Persons with Disabilities (CRPD) and its ethos is reflected in the Preamble which recognises both attitudinal and environmental barriers that hinder full and effective participation (de Paor & O'Mahony, 2016; O'Sullivan and McNamara, 2021).

While the CRPD has heralded significant reforms in legal systems around the world, there is still a question mark as to how (or if) the Convention will influence criminal justice and policing. While the text of the Convention is relatively silent on policing and criminal justice (McNamara, 2021), Article 13(2) does provide for the duty to ensure appropriate training for the police. This provision forms part of the broader right of access to justice for all persons with disabilities. Regular police training, which is grounded in a human rights approach, is one of the most effective means of combatting stigma and negative attitudes held by officers and policing organisations more generally. This has been recognised by the Office of the United Nations High Commissioner for Human Rights (OHCHR) on Article 13, wherein it is noted that attitudinal barriers affect access to justice for persons with disabilities (Office of the United Nations High Commissioner for Human Rights 2017, 15). The OHCHR recommends mandatory (and properly funded) training to address issues such as how to combat prejudices and stereotypes held against persons with disabilities. Further guidance should also be developed by the UN Committee on the Rights of Persons with Disabilities for police organisations in designing new disability-rights training programmes.

The CRPD may also require individual State Parties to revise existing laws and policies allowing for deprivations of liberty on the basis of risks associated with disability and mental illness. This could prove significant for Ireland as the existing Mental Health Act 2001 affords officers the power to remove a person to an authorised place of safety (i.e. a psychiatric facility) for the purpose of care, observation or treatment (s. 9). This power is most often exercised where the individual is believed to be a risk to themselves or others. While police have a social responsibility to ensure the safety and protection of citizens, this provision may be unlawful under the CRPD on the basis that it is both discriminatory and in conflict with an individual's right to autonomy, particularly where it is said that an individual poses a risk to themselves alone. The emphasis on risk within the Irish legislation also gives rise to debate about the continued lawfulness of detention based on perceived dangerousness or risk one poses to themselves or others (McNamara, 2018). Arbitrary detention on the basis of dangerousness is in clear conflict with the right to liberty as protected under Article 14 of the CRPD. This requires States Parties to remove all legislation which permits deprivation of liberty on the grounds of risk or dangerousness, as such provisions are 'discriminatory in nature' and therefore amount to arbitrary deprivation of liberty for the purposes of the CRPD (UN Committee on the Rights of Persons with Disabilities, 2015).

The emphasis on risk is controversial more generally, as this is an inherently subjective determination, and it is particularly difficult for an officer to make this decision without appropriate supports or training. It is argued that the emphasis on risk and dangerousness should be removed from the narrative of disability and mental health as these phrases are intrinsically rooted in outdated perceptions of people with disabilities dating back to the lunacy laws. The effect of this is such that stereotypes of dangerousness continue to feature frequently in regards to mental health, leading to fear amongst the public to the extent that people with serious mental illness are "othered" or avoided.

Further research is needed to understand the influence of labels on individual police officers, and to assess whether the existence of certain traits or characteristics would impact upon an officer's decision to make an arrest or to have someone admitted for the purpose of receiving treatment. At its core, police officers are not trained medical professionals and it is unreasonable to expect them to be able to identify and assess the various manifestations of mental health without the support of trained professionals (McNamara, 2021). However, training is still needed to ensure that where an officer is required to respond to a case involving a vulnerable person, they have the necessary skills to do this appropriately. The recent ratification of the CRPD creates a new mandate for An Garda Síochána to engage in this conversation and to work towards developing an interagency response to people with disabilities or mental illness which are grounded in human rights laws.

Conclusion

The modern response to disability is undoubtedly shaped by history, culture, sociology, politics and economics. This is especially true in the case of Ireland, in which the provisions relating to the care and provision of people with disabilities was closely intertwined with politics and colonialism. The evolution in the States response to social disorder and high-poverty levels in the eighteenth and nineteenth centuries led to mass institutionalisation and over-policing which led to Ireland having one of the highest asylum populations in the world (Reuber, 1996). While perceptions of disability and mental health have changed considerably since the introduction of early laws and policies in the nineteenth century, stereotypes and prejudices continue to play a significant role in shaping attitudes towards persons with disabilities. The historical emphasis on institutionalising vulnerable members of society has led to entrenched paternalism and misconceptions about dangerousness which continue to prevent the full inclusion of people with disabilities.

This article sought to highlight the simultaneous rise of the police and the vast asylum network which existed in Ireland, to understand the extent to which the State sought control over the lives of the lunatic poor and the role police officers played in this regime. The nineteenth century was a particularly defining period for Ireland, given the political unrest and the impact of the Famine. But, for people with disabilities, this period marked a turning point due to increasingly arbitrary legislative amendments allowing for their removal from general society. The lunatic poor came to be seen as a threat to social order and with the help of the police, the State was able to control this by way of detaining people in overcrowded institutions. While previous research has considered the significance of policing, the role of the police within society and the changing nature of modern policing, questions remain regarding the extent of police powers and their use of discretion in dealing with vulnerable persons. Challenging false stereotypes or preconceived views about disability, in particular, is essential for building a rights-based culture, especially in light of the UN Convention on the Rights of Persons with Disabilities. This article has argued that incorporating positive awareness-raising programmes, in line with Articles 8 and 13 of the CRPD, can offer a solution towards overcoming the range of systemic, institutional and attitudinal barriers which have become ingrained in Irish society over time.

Acknowledgements

The author is grateful to Ryan Johnston for his thoughtful research assistance. All errors and omissions remain the authors own.

Works Cited

  • Allen, G. (1999). The garda síochána: policing independent Ireland, 1922-82. Gill & Macmillan.
  • Barnes, C., Oliver, M., & Barton, L. (2002). Disability Studies Today. Polity Press.
  • Bartlett, P., & Sandland, R. (2007). Mental Health Law: Policy and Practice (Vol. 3rd edition). Oxford University Press.
  • Bowers, L. (1998). The Social Nature of Mental Illness. Routledge.
  • Boyle, K. (1972). Police in Ireland Before the Union I. Irish Jurist, 7(1), 115.
  • Brennan, D. (2014). Irish Insanity 1800-2000. Routledge. https://doi.org/10.4324/9780203101803
  • Brennan, D. (2015). Mental Illness and the Criminalisation Process. In D. Healy, C. Hamilton, Y. Daly, & M. Butler, The Routledge Handbook of Irish Criminology (p. 553). Routledge.
  • Brown, J. (2015). The Legal Powers to Detain the Mentally Ill in Ireland: Medicalism or Legalism? PhD Thesis, Dublin City University.
  • Churchill, D. (2014). Rethinking the state monopolisation thesis: the historiography of policing and criminal justice in nineteenth-century England. History and Societies, 18(1), 131, 136. https://doi.org/10.4000/chs.1471
  • Considine, M., & Dukelow, F. (2009). Irish Social Policy: A Critical Introduction. Gill & Macmillan.
  • Conway, V. (2013). Policing Twentieth Century Ireland: A History of An Garda Síochána. Routledge. https://doi.org/10.4324/9780203070000
  • Cousins, M. (2005). Explaining the Irish Welfare State: An Historical Comparative and Political Analysis. Edwin Mellen Press.
  • Cox, C. (2012). Negotiating Insanity in the Southeast of Ireland 1830–1900. Manchester University Press. https://doi.org/10.7228/manchester/9780719075032.001.0001
  • Crossman, V. (2013). The Poor Law in Ireland: 1850–1914. Liverpool University Press. https://doi.org/10.2307/j.ctt5vjb7m
  • Cummins, I. (2013). Policing and Mental Illness in the era of deinstitutionalisation and mass incarceration: A UK Perspective. International Journal of Criminology and Sociological Theory, 6(4), 92, 98.
  • de Paor, A., & O'Mahony, C. (2016). The Need to Protect Employees with Genetic Predisposition to Mental Illness? The UN Convention on the Rights of Persons with Disabilities and the Case for Regulation. Industrial Law Journal, 45(4), 525. https://doi.org/10.1093/indlaw/dww033
  • de Tocqueville, A. (1840). Democracy in America (Vol. 2). Allard and Saunders.
  • Fennell, P. (2010). Mental Health Law: History, Policy and Regulation. In L. Gostin, J. McHale, P. Fennell, R. Mackay, & P. Bartlett, Principles of Mental Health Law and Policy (p. 6). Oxford University Press.
  • Finnane, M. (1981). Insanity and the Insane in Post-famine Ireland. Croom Helm.
  • Foucault, M. (1995). Discipline and Punish: The Birth of the Prison. New York: Vintage.
  • Gulati, G., Murphy, V., Clarke, A., Delcellier, K., Meagher, D., Kennedy, H., Dunne, C. (2018). Intellectual disability in Irish prisoners: systematic review of prevalence. International journal of prisoner health, 14(3), 188. https://doi.org/10.1108/IJPH-01-2017-0003
  • Hallaran, W. (1810). An Enquiry into the Causes Producing the Extraordinary Addition to the Number of Insane Together with Extended Observations on the Cure of Insanity with Hints as to the Better Management of Public Asylums for Insane Persons. Edwards and Savage.
  • Hollen Lees, L. (1998). The solidarities of strangers: The English poor laws and the people, 1700-1948. Cambridge University Press.
  • Hunt, P. (1966). Stigma: The Experience of Disability. Geoffrey Chapman.
  • Jones, K. (1955). Lunacy, law and conscience 1744-1845. Routledge and Kegan Paul.
  • Kayess, R., & French, P. (2008). Out of darkness into light? Introducing the Convention on the Rights of Persons with Disabilities. Human Rights Law Review, 8(1), 1, 6. https://doi.org/10.1093/hrlr/ngm044
  • Kelly, B. (2009). Criminal insanity in 19th-century Ireland, Europe and the United States: Cases, contexts and controversies. International Journal of Law and Psychiatry, 32, 362. https://doi.org/10.1016/j.ijlp.2009.09.005
  • Kelly, B. (2009). Criminal insanity in 19th-century Ireland, Europe and the United States: Cases, contexts and controversies. International Journal of Law and Psychiatry, 32, 362, 363. https://doi.org/10.1016/j.ijlp.2009.09.005
  • Kelly, B. (2010). Intellectual disability, mental illness and offending behaviour: forensic cases from early twentieth-century Ireland. Irish Journal of Medical Science, 179, 409, 410. https://doi.org/10.1007/s11845-008-0188-1
  • Kelly, B. (2014). Custody, Care & Criminality: Forensic Psychiatry and Law in 19th Century Ireland. The History Press.
  • Kelly, B. (2016). Hearing Voices: The History of Psychiatry in Ireland. Irish Academic Press.
  • Kelly, B. D. (2007). One hundred years ago: The Richmond Asylum, Dublin in 1907. Irish Journal of Psychological Medicine, 24(3), 108. https://doi.org/10.1017/S0790966700010430
  • Kennedy, H., Monks, S., Curtin, K., Wright, B., Linehan, S., Duffy, D., … Kelly, A. (2004). Mental Illness in Irish Prisoners. Dublin: National Forensic Mental Health Service.
  • Kilgannon, D. (2020). A 'forgettable minority'? Psychiatric Institutions and the Intellectually Disabled in Ireland, 1965–84. Social History of Medicine, 1-20. https://doi.org/10.1093/shm/hkaa015
  • Kinealy, C. (1994). This Great Calamity: The Great Irish Famine: The Irish Famine 1845-52. Gill & Macmillan.
  • Lally, C. (2017, September 22). Most arrested not availing of right to solicitor presence at questioning. The Irish Times.
  • Leonard, P., Morrison, A., Delany-Warner, M., & Calvert, G. (2015). A national survey of offending behaviour amongst intellectually disabled users of mental health services in Ireland. Irish Journal of Psychological Medicine, 33(4), 1. https://doi.org/10.1017/ipm.2015.21
  • Linehan, S., Duffy, D., Wright, B., Curtin, K., Monks, S., & Kennedy, H. (2005). Psychiatric Morbidity in a Cross-Sectional Sample of Male Remanded Prisoners. Irish journal of psychological medicine, 22(4), 128. https://doi.org/10.1017/S079096670000923X
  • Lunatic Asylums Ireland Commission. (1858). Report of the Commissioners of Inquiry into the State of the Lunatic Asylums and Other Institutions for the Custody and Treatment of the Insane in Ireland: with Minutes of Evidence and Appendices. Thom and Sons for Her Majesty's Stationary Office.
  • Malcolm, E. (2003). Ireland's crowded madhouses": the institutional confinement of the insane in nineteenth and twentieth-century Ireland. In R. Porter, & D. Wright, The confinement of the insane: international perspectives, 1800-1965 (pp. 322-36). Cambridge Press. https://doi.org/10.1017/CBO9780511497612.014
  • Malcolm, E. (2006). The Irish Policeman 1822-1922: A Life. Dublin: Four Courts Press.
  • McCashin, A. (2004). Social Security in Ireland. Gill & Macmillan.
  • McClelland, R. (1988). The madhouses and mad doctors of Ulster. Ulster Medical Journal, 57(2), 101, 107.
  • McNamara, D. (2018). The Insanity Defence, Indefinite Detention and the UN Convention on the Rights of Persons with Disabilities. Dublin University Law Journal, 41(1), 143, 149. https://doi.org/10.2139/ssrn.3685525
  • McNamara, D. (2021). Building a collaborative approach to policing in an age of disability human rights law. Journal of Psychiatric and Mental Health Nursing, 28, 107-114. https://doi.org/10.1111/jpm.12609
  • McNiffe, L. (1997). A history of the Garda Siochana: a social history of the force 1922-52, with an overview of the years 1952-97. Wolfhound Press.
  • Menzies, R. (1987). Psychiatrists in blue: Police apprehension of mental disorder and dangerousness. Criminology, 25(3), 429. https://doi.org/10.1111/j.1745-9125.1987.tb00805.x
  • Morton, T. (1975). The Pennsylvania hospital: Its founding and functions. In T. Szasz, The Age of Madness: The History of Involuntary Mental Hospitalization Presented in Selected Texts (pp. 12-3). Routledge & Kegan Paul.
  • Murphy, M., Harrold, M., Carey, S., & Mulrooney, M. (2000). A Survey of the Level of Learning Disability among the Prison Population in Ireland. Dublin: Department of Justice, Equality and Law Reform.
  • O'Brien, E., Browne, L., & O'Malley , K. (1988). The House of Industry Hospitals 1772-1787. The Richmond, Whitworth and Hardwicke (St. Laurences's Hospital): A Closing Memoir. The Anniversary Press.
  • O'Sullivan, C., & McNamara D. (2021). The 'Necessity' of Austerity and its Relationship with the UN Convention on the Rights of Persons with Disabilities: A Case Study of Ireland and the United Kingdom. Human Rights Law Review, 21, 157-185. https://doi.org/10.1093/hrlr/ngaa051
  • Penrose, L. (1939). Mental disease and crime: outline of a comparative study of European statistics. Psychology and Psychotherapy: Theory, Research and Practice, 18(1), 1. https://doi.org/10.1111/j.2044-8341.1939.tb00704.x
  • Porter, R. (1992). Madness and its institutions. In A. Wear, Medicine in Society Historical Essays (p. 282). Cambridge. https://doi.org/10.1017/CBO9780511599682.010
  • Prior, P. (2003). Dangerous lunacy: The misuse of mental health law in nineteenth century Ireland. Journal of Forensic Psychiatry and Psychology, 14, 525. https://doi.org/10.1080/14789940310001615452
  • Prior, P. (2004). Prisoner or patient? The official debate on the criminal lunatic in nineteenth-century Ireland. History of Psychiatry, 15(2), 177. https://doi.org/10.1177/0957154X04039349
  • Reuber, M. (1996). The architecture of psychological management: the Irish asylums (1801-1922). Psychological Medicine, 26(6), 1179. https://doi.org/10.1017/S003329170003590X
  • Reynolds, J. (1992). Grangegorman: Psychiatric Care in Dublin since 1815. Institute of Public Administration.
  • Robins, J. (1986). Fools and Mad: A History of the Insane in Ireland. Institute of Public Administration.
  • Schur, L., Kruse, D., & Blanck, P. (2013). People with disabilities: Sidelined or mainstreamed? Cambridge University Press. https://doi.org/10.1017/CBO9780511843693
  • Shakespeare, T. (1996). Disability, identity and difference. In C. Barnes, & G. Mercer, Exploring the divide: Illness and identity (p. 94). The Disability Press.
  • Smith, O. (2010). Disability Discrimination Law. Round Hall/Thomson Reuters.
  • Smith, O. (2010). Disability Discrimination Law. Round Hall/Thomson Reuters.
  • Teplin, L. (1984). Criminalizing Mental Disorder: The Comparative Arrest Rate of the Mentally Ill. American Psychologist, 39(7), 794. https://doi.org/10.1037/0003-066X.39.7.794
  • UN Committee on the Rights of Persons with Disabilities. (Adopted During the Committee's 14th session, September 2015). Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The Right to Liberty and Security of Persons with Disabilities.
  • Walsh, O. (1999). Lunatic and Criminal Alliances in Nineteenth Century Ireland. In P. Bartlett, & D. Wright, Outside the Walls of the Asylum: The History of Care in the Community 1750-2000 (p. 134). The Athlone Press.
  • Williamson, A. (1970). The Beginnings of State Care for the Mentally Ill in Ireland. Economic and Social Review, 1(2), 281, 283.

Endnotes

  1. For the purpose of ensuring historical and legal accuracy, I will use terminology which is now outdated and inappropriate to refer to people with disabilities. The use of terms such as 'asylum' and 'lunatic' does not reflect the author's endorsement of such terminology.
    Return to Text
  2. 'Guilty of the act or omission charged but insane, so as not to be responsible, according to law, for his actions at the time when the act was done or the omission made.'
    Return to Text
Return to Top of Page


Copyright (c) 2021 Donna McNamara

Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

Volume 1 through Volume 20, no. 3 of Disability Studies Quarterly is archived on the Knowledge Bank site; Volume 20, no. 4 through the present can be found on this site under Archives.

Beginning with Volume 36, Issue No. 4 (2016), Disability Studies Quarterly is published under a Creative Commons Attribution-NonCommercial-NoDerivatives license unless otherwise indicated. 

Disability Studies Quarterly is published by The Ohio State University Libraries in partnership with the Society for Disability Studies.

If you encounter problems with the site or have comments to offer, including any access difficulty due to incompatibility with adaptive technology, please contact libkbhelp@lists.osu.edu.

ISSN: 2159-8371 (Online); 1041-5718 (Print)