How can rates of detention under mental health in legislation in Finland be almost 20 times higher than in Italy? (Zinkler and Priebke 2002) Is it just the law, or is it the context within which the law sits? And how can we even start actually to compare frameworks?

These are all questions that have been lurking for some time; they troubled the Independent Review of the Mental Health Act 1983 (Rains et al 2019), and they are equally applicable when it comes to comparing the regimes that have developed for detention under mental capacity legislation (Series 2022).

In a new paper (Davidson et al, 2024), Gavin Davidson and colleagues from Northern Ireland, the Republic of Ireland, Scotland and Australia use the example of the island of Ireland to start to try to answer these questions. They do so by drawing on previous work designed to address three key questions:

  1. What information is currently available to enable exploration and comparison of the law, policy and practice relevant to mental health and mental capacity law on the island of Ireland?
  2. What should be included in outcomes frameworks that would enable the routine presentation and comparison of the key variables relevant to mental health and mental capacity law?
  3. What specific data on the use of mental health and mental capacity law should be collected on both sides of the border to enable comparison and joint learning?
Mental health detention rates vary enormously across different countries, but why?

Mental health detention rates vary enormously across different countries, but why?


The first question set out above was addressed through a Working Paper (Farrell et al, 2022), including analysis of the wider contemporary policy and practice landscapes, as well as the potential implications for future research.

The second was addressed through a rapid review (not available online) organised in three parts: existing international approaches; what an outcomes framework should include; and issues to be considered for implementation.

The third question was addressed through a focused narrative review (Greenhalgh et al, 2018) which identified and analysed some of the previous attempts to collect and present comparable international data specifically on the use of mental health law. The present paper draws together the results of the preceding work.


The structures for health and social care are similar in both the Republic of Ireland and Northern Ireland. The authors also identify similarities between the two legal frameworks in play:

  1. With specific regard to mental health, the Mental Health Act 2001, in the Republic of Ireland, and the Mental Health (Northern Ireland) Order 1986 are both identified as “traditional ‘mental disorder’ and ‘risk’ based legal frameworks, which define the procedures by which people may be detained in in-patient settings.”
  1. More broadly, The Assisted Decision Making (Capacity) Act 2015 (ADMCA) and the Mental Capacity Act (Northern Ireland) 2016 (MCANI) are also identified by the authors as being broadly similar, as regards their guiding principles and their functional approach to the assessment of capacity.

The authors note, however, that the intention is that, in due course, the MCANI should replace the Mental Health (Northern Ireland) Order 1986 for everyone aged 16 and over.

The three implications that follow from the findings above are identified as being:

  1. The need for an agreed mental health dataset to facilitate comparison of the need for services, the provision of services, and outcomes for service users and carers.
  2. An opportunity to develop an agreed approach to the evaluation of the implementation of the relatively new capacity-based laws.
  3. The potential benefits of the development of a wider joint research agenda which could address a number of key priorities including:
    “(i) the legal frameworks and service provision for children and young people;
    (ii) the implementation and effectiveness of the new capacity-based laws;
    (iii) the development and effectiveness of approaches to support autonomy and reduce the need for compulsory intervention;
    (iv) the provision of specialist services and opportunities for all island cooperation.”

In terms of what a comprehensive approach to a mental health outcomes framework should include, six main areas are identified by the authors:

  • the social determinants of mental health;
  • population needs;
  • resources and inputs;
  • activities and processes (for example, the number of therapy sessions provided, the length of inpatient admissions and regularity of Tribunal hearings);
  • professional reported outcomes; and
  • service user and carer perspectives on outcomes.

The authors make the important point that the data about the use of mental health and mental capacity law tends to focus on quantifying the use of powers, rather than an approach that would allow direct comparison of these metrics and other related data to better understand the wider context and, “crucially, the experiences and outcomes for service users and carers when these powers are applied and their impact over time.”

The study authors argue that "an inclusive strategy to developing a comprehensive, integrated and aligned approach to collecting and analysing data would benefit citizens, policy makers and professionals."

The study authors argue that “an inclusive strategy to developing a comprehensive, integrated and aligned approach to collecting and analysing data would benefit citizens, policy makers and professionals.”


The authors suggest that the recent developments in mental health and mental capacity law and policy across the island of Ireland provides an opportunity to put in place an integrated and aligned approach to collecting and analysing data across the island of Ireland. They further suggest that the identified potential benefit of aligning data on the island of Ireland:

raises the possibility of seeking wider international consensus about a core, common data set about the use of mental health and mental capacity law across other countries which would enable further comparison and learning. This type of cross-border cooperation and comparison also has the potential to demonstrate the benefits of aligning data for other areas of law, policy and practice.

Strengths and limitations

A particular strength of the article (and the work upon which it draws) is that it brings a multi-disciplinary and multi-national perspective to examining the situation on the island of Ireland. Perhaps for historic reasons, work directly comparing the two jurisdictions is relatively rare, especially research by those based in the two jurisdictions, as opposed to purely external scholars. It is also very useful to have research conducted not just by those interested in black letter law, but by those interested in how that law impacts upon, and is impacted by, social and cultural conditions. The authors are also aware both as to the limitations of the specific comparative exercise with which they are engaged as regards Ireland, and as to the extent to which it is possible to generalise up from such an exercise to consider implications for other jurisdictions, so they do not seek to torture the data to produce results that they are not capable of bearing.

A limitation is that the research team did not include a person who expressly identifies as having experience of being subject to either the mental health or the mental capacity frameworks in either of the jurisdictions.  Given the important focus in the article on the participation of such individuals in the development of the type of metrics that the authors propose, the lack of such a voice was unfortunate. An example of such research that could be drawn upon for the development of tools that allow the examination of this “relatively neglected but fundamental aspect” (to use the words of the authors themselves) is a paper involving Davidson himself (Webb et al, 2020).

A key limitation of this research is the lack of coproduction with people who have lived experience.

A key limitation of this research is the lack of coproduction with people who have lived experience.

Implications for practice

The two jurisdictions on the island of Ireland are both engaged in different forms of legal reform in parallel in a relatively small geographical area. Whilst they are currently on a parallel track, the likelihood is that they will start to diverge substantially, at least in formal legal terms, if and when the MCANI comes fully into force. At that point, there will be no separate mental health legislation in Northern Ireland for those aged 16 and above. Conversely, a lengthy law reform period in the Republic of Ireland will have produced new capacity legislation which on its face hews much closer to the UN Convention on the Rights of Persons with Disabilities than the MCANI, for instance by having no ‘diagnostic’ element to its test for capacity, and by seeking to have decision-making reflect the person’s will and preferences, rather than being based upon their best interests. But that legislation, the ADMCA (which has now been in force for nearly a year) will stand alongside legislation in the Republic of Ireland directed specifically at addressing the assessment, treatment and, where necessary, detention of those with mental health conditions.

Give the potential – in principle – for quite radical divergence, it is therefore a particularly opportune moment for the research leading to the current article to have been published. If the recommendations set out in it are followed, it will provide an important opportunity to identify whether and to what extent the legal changes currently underway and proposed actually secure real change (and to ask what real change looks like).

Further, and despite the modesty of the authors’ claims for implications for practice outside the island of Ireland, the proposals that they are make are equally useful for those wanting to undertake research and develop policy proposals in other nations. As a start, developing and applying the frameworks that they have set out would be a very illuminating exercise to undertake in the United Kingdom more broadly.

Video conversation

Watch Alex Ruck-Keene speaking to Gavin Davidson about how to compare mental health and mental capacity frameworks across countries

Gavin and Alex from Ruck Keene on Vimeo.

Statement of interests

I know several of the researchers (Davidson, Donnelly, Farrell and Kelly), and have discussed comparative mental health and capacity issues with them in the context of my own research.


Primary paper

Davidson, G, Agnew, E, Brophy, L, Campbell, J, Donnelly, M, Farrell, A M, Forbes, T, Frowde, R, Kelly, B, & McCartan, C (2024). Comparing mental health and mental capacity law data across borders: Challenges and opportunities. International Journal of Law and Psychiatry92, 101949.

Other references

Farrell, A M, Davidson, G, Donnelly, M, Agnew, E, Forbes, T, & Frowde, R (2022). Mental health policies and laws on the island of Ireland. Edinburgh School of Law Research Paper, (2022/07).

Greenhalgh, T, Thorne, S, & Malterud, K (2018). Time to challenge the spurious hierarchy of systematic over narrative reviews?. European Journal of Clinical Investigation48(6).

Rains, S, Zenina, T, Dias, M, Jones, R, Jeffreys, S, Branthonne-Foster, S, Lloyd-Evans, B & Johnson, S (2019). Variations in patterns of involuntary hospitalisation and in legal frameworks: an international comparative study. The Lancet Psychiatry, 6(5), 403-417.

Series, L (2022) Deprivation of Liberty in the Shadows of the Institution (Bristol University Press).

Webb, P, Davidson, Rosalie Edge, David Falls, Fionnuala Keenan, Berni Kelly, Aisling McLaughlin et al. “Service users’ experiences and views of support for decision‐making.” Health & social care in the community 28, no. 4 (2020): 1282-1291.

Zinkler, M, & Priebe, S (2002). Detention of the mentally ill in Europe–a review. Acta Psychiatrica Scandinavica, 106(1), 3-8.


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