Áine Hynes St. John Solicitors Mental Health Law Written by Áine Hynes for the Public Interest Law...

Áine Hynes

St. John Solicitors

Mental Health Law

Written by Áine Hynes for the Public Interest Law Alliance, a project of FLAC - 9 March 2011

Mental Health law: Before November 2006 Mental Treatment Acts 1945 to 1961 no right to review H. -v- Russell & Ors, [2007] IEHC 7 Mr. Justice Clarke acknowledged the difficulties involved for

medical personnel in dealing with the inadequacies of the 1945 Act

“persons were required to operate within a wholly unsatisfactory statutory framework”

“forced those within the system to operate for far too long on the basis of a system which was manifestly not fit for the purpose”

CMH cases dealing with unlawfulness based on the H case – 100s of patients unlawfully detained throughout Ireland on the basis of continually renewed temporary orders which should have had a maximum lifespan of 2 years.


Why was the law changed? European Convention on Human Rights Article 5: Everyone has the right to liberty and security

of person. No one shall be deprived of his liberty save … in

accordance with a procedure prescribed by law why is this important? “Patients are individuals, no more and no less than

any other individual…they are members of the public, citizens, people whose needs and interests the Government exists to serve.” (Professor Anselm Eldergill The Best is the Enemy of the Good: The Mental Health Act 2001. Journal of Mental Health Law)


European Convention on Human Rights

5(4) “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

X v United Kingdom (1981) it was held by virtue of article 5(4) that a person of unsound mind who is compulsorily detained in a psychiatric institution for an indefinite or lengthy period is in principle entitled…to take proceedings at reasonable intervals before a court for the determination of the lawfulness of his detention


Ireland and the ECHR

Croke v Ireland 1999 Supreme Court found that the Mental Treatment

legislation was sufficient to meet the requirements of Article 5 in light of the requirements imposed on those detaining patients not to act arbitrarily, the Habeas Corpus remedy and the Inspector of Mental Hospitals.

ECtHR found that Article 5 required a proper system of judicial review of detention on the basis of mental disorder. The Irish government undertook to secure the passage of the Mental Health Bill 1999.

Admission and review procedures commenced on 1st of November 2006


Mental Health Act 2001- overview of admission process Review procedures under 2001 Act fully implemented in

November 2006. All persons admitted involuntarily to an approved centre are

entitled to legal aid. Only involuntary admissions covered by legal aid.

one – application to a registered medical practitioner two – if doctor is satisfied following examination that the person

is suffering from a mental disorder, a recommendation is made by the doctor that a person should be admitted involuntarily to an approved centre

three - once a patient is admitted a patient can be detained against their wishes in a psychiatric hospital up to 24 hours

four - involuntary admission order made by a consultant psychiatrist within 24 hours of their detention

Lasts for 21 days, thereafter renewal orders can be made, each subject to review.


Criteria for admission – S8 of 2001 Act (1) A person may be involuntarily admitted to an

approved centre pursuant to an application under Section 9 or 12 and detained there on the grounds that he or she is suffering from a mental disorder.

(2) Nothing in subsection (1) shall be construed as authorising the involuntary admission of a person to an approved centre by reason only of the fact that the person—

(a) is suffering from a personality disorder, (b) is socially deviant, or (c) is addicted to drugs or intoxicants.


Mental Disorder (S 2)

3.—(1) In this Act “mental disorder” means mental illness, severe dementia or significant intellectual disability where—

(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or

(b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.


Mental Disorder (S 2)

(2) In subsection (1)—“mental illness” means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;

“severe dementia” means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression

“significant intellectual disability” means a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person.


Who may make an application to a doctor for a recommendation? (S 9)

(1) Subject to subsection (4) and (6) and S12 where it is proposed to have a person involuntarily admitted to an approved centre, an application for a recommendation that the person be so admitted may be made to a registered medical practitioner by any of the following:

(a) the spouse or a relative of the person, (form 1) (b) an authorised officer (form 2) (c) a member of the Garda Síochána, (form 3)or (d) subject to the provisions of subsection (2), any

other person.(form 4)


Who may not make an application for a recommendation to a doctor? (S9)

(2) The following persons shall be disqualified for making an application in respect of a person—

(a) a person under the age of 18 years, (b) an authorised officer or a member of the Garda Síochána who is

a relative of the person or of the spouse of the person, (c) a member of the governing body, or the staff, or the person in

charge, of the approved centre concerned, (d) any person with an interest in the payments (if any) to be made

in respect of the taking care of the person concerned in the approved centre concerned,

(e) any registered medical practitioner who provides a regular medical service at the approved centre concerned,

(f) the spouse, parent, grandparent, brother, sister, uncle or aunt of any of the persons mentioned in the foregoing paragraphs (b) to (e), whether of the whole blood, of the half blood or by affinity.


Application forms - Section 9wrong forms can cause an order to be revoked (3) An application shall be made in a form specified by the

Commission. (4) A person shall not make an application unless he or she

has observed the person the subject of the application not more than 48 hours before the date of the making of the application.

(5) Where an application is made under subsection (1)(d), the application shall contain a statement of the reasons why it is so made, of the connection of the applicant with the person to whom the application relates, and of the circumstances in which the application is made.

(6) A person who, for the purposes of or in relation to an application, makes any statement which is to his or her knowledge false or misleading in any material particular, shall be guilty of an offence


Application forms cont

“authorised officer” means an officer of a health board who is of a prescribed rank or grade and who is authorised by the chief executive officer to exercise the powers conferred on authorised officers by this section;

S.11 (1)Where following the refusal of an application any further such application is made in respect of the same person, the applicant, so far as he or she is aware of the facts relating to the previous application and its refusal, shall state those facts to the registered medical practitioner to whom the further application is made.

(2) A person who contravenes subsection (1) shall be guilty of an offence.


Recommendation by GP (S10) (1) Where a registered medical practitioner is satisfied

following an examination of the person the subject of the application that the person is suffering from a mental disorder, he or she shall make a recommendation (in this Act referred to as “a recommendation”) in a form specified by the Commission that the person be involuntarily admitted to an approved centre (other than the Central Mental Hospital) specified by him or her in the recommendation.

(2) An examination of the person the subject of an application shall be carried out within 24 hours of the receipt of the application and the registered medical practitioner concerned shall inform the person of the purpose of the examination unless in his or her view the provision of such information might be prejudicial to the person's mental health, well-being or emotional condition.


Garda applications – S12

(1) Where a member of the Garda Síochána has reasonable grounds for believing that a person is suffering from a mental disorder and that because of the mental disorder there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons, the member may either alone or with any other members of the Garda Síochána—

(a) take the person into custody, and (b) enter if need be by force any dwelling or other premises

or any place if he or she has reasonable grounds for believing that the person is to be found there

(2) Where a member of the Garda Síochána takes a person into custody under subsection (1), he or she or any other member of the Garda Síochána shall make an application forthwith in a form specified by the Commission to a registered medical practitioner for a recommendation.


Removal to approved centre (psychiatric unit) (S13) (1) Where a recommendation is made in relation to a

person (other than a recommendation made following an application under Section 12, the applicant concerned shall arrange for the removal of the person to the approved centre specified in the recommendation.

(2) Where the applicant concerned is unable to arrange for the removal of the person concerned, the clinical director of the approved centre specified in the recommendation or a consultant psychiatrist acting on his or her behalf shall, at the request of the registered medical practitioner who made the recommendation, arrange for the removal of the person to the approved centre by members of the staff of the approved centre or by authorised persons


Removal to an approved centre cont. (3) Where the clinical director of the approved centre or a

consultant psychiatrist acting on his or her behalf and the registered medical practitioner who made the recommendation are of opinion that there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist the members of the staff of the approved centre in the removal by the staff of the person to that centre and the Garda Síochána shall comply with any such request.

(4) Where a request is made to the Garda Síochána under subsec-tion (3), a member or members of the Garda Síochána may—(a) enter if need be by force any dwelling or other premises where he or she has reasonable cause to believe that the person concerned may be, and(b) take all reasonable measures necessary for the removal of the person concerned to the approved centre including, where necessary, the detention or restraint of the person concerned.


Admission order under 2001 Act now triggers a series of rights for a patient detained admission order must be referred to the

Mental Health Commission within 24 hours notice of the making of this order must be

given to the patient concerned notice is very important as it gives the

patient concerned a right to be admitted to the approved centre as a voluntary patient if he or she indicates a wish to be so admitted

X v United Kingdom (1981)ECHR held that rights are useless unless patients are aware that such rights exist


Commission obligations under S 17

The Commission must as soon as possible -

refer the matter to a tribunal, assign a legal representative to

represent the patient concerned unless he or she proposes to engage one, and

direct a report to be conducted by an independent consultant psychiatrist


Tribunal Hearing

Section 18 of the 2001 Act - review the detention of the person concerned and either affirm or revoke the order. Limited role.

NB - if the provisions of section 9, 10 12, 14, 15 (making the orders) and 16 have not been complied with the tribunal can nonetheless affirm the order if the failure to comply with those provisions does not affect the substance of the order and does not cause an injustice. [Section 18(1)(a)]


Article 40.4.1 mechanism

“No citizen shall be deprived of his personal liberty save in accordance with law”

40.4.2 complaint (application) is made by or on behalf of any person to the High Court alleging a person is being unlawfully detained

High Court shall forthwith enquire into the said complaint may order the detainor to produce the body before the High

Court detainor certifies in writing the grounds of his detention, detainor has opportunity of justifying the detention Court shall order the release of such person from such

detention unless satisfied that he is being detained in accordance with the law.


Challenges : Incapable persons

Capacity and levels of capacity Functional test versus old status test - all or nothing test. The new model focuses on the dignity of the human being and on

issues of integration – emphasis on ability rather than disability – to enable a person with limited decision making ability to have input into decisions made regarding their care.

The functional approach results in a proportionate minimum incursion on an individual’s decision – making autonomy. (Patricia Rickard-Clarke Law Society lecture February 2007)

Capacity is assessed on an issue specific basis (in EH the Supreme Court’s decision is indicative of the old status approach)

This new approach to capacity is reflected Law Reform Commission Report on Vulnerable Adults and the Law and Mental Capacity Bill 2009.

Endorsed also in Masterman-Lister v Brutton & Co (2003) 3 A11 ER 162. (Court of Appeal)


Role of solicitor 2001 Act and incapable clients (may be useful for advocates) Duties of a solicitor when acting for a person under the 2001 Act –

Law Society guidelines issued July 2008 in the Law Society Gazette. (based on UK guidelines) Quality Assurance Directives MHC

New role not based on the ability of a client to enter into a contract - previously client must have capacity to enter into a contract for legal services.

The solicitor’s role is to act on the patients instructions, advocating the patients views and wishes even if these may be considered by the solicitor to be bizarre or contrary to the patient’s best interests – it is for the tribunal to decide whether the order should be affirmed or revoked. Law Society Guidelines

Clients are detained because they do not volunteer for treatment. The duty is to give individual representation to client. The solicitor’s

role is limited to acting in the client’s best interests in terms of legal representation.


Role of solicitor and incapacitated person (may be useful for advocates) In exceptional circumstances, where an incapacitated person

cannot give instructions, they must act in accordance with their own perception of their client’s best interests. This generally involves testing the medical and other evidence said to support detention (Eldergill)

Quality Assurance Directives MHC A best interests approach to patient representation could properly

incorporate: A requirement to always test the evidence. A requirement to always request the best evidence available. Representing the capable patient in accordance with their

instructions as that course best protects the autonomy of the patient.

Representing the incapable patient by adopting clear principles, e.g. the entitlement to be unwise and the less restrictive alternative


2001 Act positive impact

impact of the new legislation is significant appointment of legal representatives has led to the

discovery that very many patients were unlawfully detained under the 1945 Act

Some patients having 1st review in many years Opportunities for patients to have their views heard Stricter compliance with statutory safeguards free legal aid for those patients who are detained

involuntarily means that Article 5 rights are meaningfully vindicated

Some of the most vulnerable members of our society are represented and have the lawfulness of their detention reviewed by an independent body


Main challenges arising out of 2001 Act

CAPACITY legislation urgently required, voluntary patient and EH case, section 2 definition of voluntary patient, means a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order. Supreme court says capacity to consent to that treatment not taken into account.

Gaps in the legislation – capacity and UN Convention of Rights for Persons with Disabilities

genuine nature of subsequent voluntary detentions – capacity of those clients to consent to treatment

limitation on the remit of tribunals treatment concerns of clients not addressed by 2001 Act


Nursing Homes Support Scheme Act 2009. known as fair deal scheme

These notes refer to the Guidance Document on the Functional Assessment of Capacity issued by the department of health at http://www.dohc.ie/issues/fair_deal/guidance_full.pdf?direct=1

Ancilliary state support secured by “Nursing Home Loan” The 5% contribution from assets such as land and property may be

deferred for the person’s lifetime and collected from their estate. loan advanced by the HSE to a person to help them meet the cost

of contributions from assets such as their home. HSE will advance an interest-free loan to a person and secure it by

placing a Charging Order against the asset in question. This charge will remain on the property and unless the person’s will

provides otherwise it will be a charge taken out of that property, rather than out of other assets

Therefore a beneficiary of that property will take it subject to the charge, unless otherwise specified


Care Representative, application to circuit court,

no legal aid provided for in act

In order to benefit from the Nursing Home Loan, a person needs to consent to a Charging Order being placed against the asset in question.

If a person is found to lack capacity under the functional assessment (see section 4 and 5 below), they will not be able to consent to the creation of the Charging Order. For this reason, they will require a care representative to act on their behalf.

The care representative must be appointed by the Circuit Court. Their role is set out in section 21 of the legislation and is limited to:-

(a) making an application for the Nursing Home Loan, (b) consenting to the creation of a Charging Order in relation to the

asset concerned, and (c) taking necessary actions in connection with the application for

the Nursing Home Loan, the creation of the Charging Order and the registration of the Charging Order in the Land Registry or the Registry of Deeds.


Care representative not needed:- They are not needed where a person has the capacity

to make such decisions. They are also not needed if:-

the person is already a ward of court (in such cases the Committee of the person may apply where it has been authorised to do so by the President of the High Court), or

the person has appointed an attorney under an enduring power of attorney who is not restricted from performing any of the actions listed in (a) to (c) above and the enduring power of attorney has been registered and is in force, or

another person is permitted by law to act on behalf of the person in relation to a matter listed at (a) to (c) above.


What is capacity and how is it determined for the 2009 Act

Section 21 of the legislation sets out the overall principle of presumption of capacity. In other words, it must always be presumed that a person has full mental capacity to make a decision until the contrary is established.

For the purposes of appointing a care representative, a person’s capacity refers specifically to their capacity to make a particular decision at the time of the assessment.

A person is considered not to have the capacity to make a decision if they are unable to do any one of the following -

(i) to understand the information relevant to the decision, (ii) to retain that information, (iii) to use or weigh that information as part of the process of

making the decision, or (iv) to communicate their decision by any means (including by

means of a third party).


Assessing capacity (2009 Act) The person undertaking the assessment (‘the

assessor’) must then establish whether the person has the capacity to make a decision in relation to the matters set out at (a) to (c) at the point in time when the assessment is being undertaken. In other words, the assessment of capacity is based on a functional approach, and is time and issue specific.

It is accepted that some people have fluctuating capacity in relation to their understanding of certain matters. However, the assessment will be based only upon the person’s capacity to understand those matters at the time of the assessment.


Assessing capacity (2009 Act) In order to assess whether a person has the capacity to

make a particular decision, the assessor should try to establish the following: Does the person have a general understanding of what

decision they need to make and why they need to make it? Does the person have a general understanding of the likely

consequences of making, or not making, this decision? Is the person able to understand the information relevant to

the decision? Is the person able to retain the information relevant to the

decision, and use and weigh it as part of the process of making the decision?

Is the person able to communicate their decision by any means?


Assessing capacity (2009 Act) Who may undertake an assessment of capacity? An assessment of capacity must be undertaken by a

medical practitioner. However, other healthcare professionals may be involved in the assessment.

What happens following an assessment of capacity?

When a medical practitioner has completed the assessment of capacity, they must prepare a report. The report must then be submitted to the Circuit Court by the person making the application.


Assessing Capacity (2009 Act) The Circuit Court will require at least two separate

reports by two separate medical practitioners in order to determine whether it should appoint a care representative. It may also hear other evidence relating to the health or circumstances of the person who is the subject of the application if it considers this necessary. Depending upon its determination, the Court may then make an order appointing a care representative. Where an application is not contested, the order appointing a care representative may be made by a county registrar rather than a judge


General Capacity approaches

Medical model v Human Rights model Outcome Approach Status Approach Functional Approach


Outcome approach

Re C [1994] 1 WLR 290 C was a 68-year-old man suffering from chronic paranoid

schizophrenia and detained in a special hospital in England. He brought a case in the High Court, after the hospital had refused to give him assurances that it would not, at some time in the future, carry out a below-knee amputation to treat his gangrenous foot.

A vascular surgeon had estimated C’s chances of survival at 15% if he did not have an amputation, but C had refused the surgery and his foot was treated conservatively, with some success. However, on the grounds that C’s capacity was impaired by his mental illness, the hospital was unwilling to confirm that it would not carry out the amputation at some future date.


Outcome approach

Despite the fact that C displayed grandiose delusions of being a world-renowned doctor, the court found that he was competent to decide this matter for himself because he had demonstrated:

(a) that he could understand and retain the treatment information, (b) believe it and (c) weigh it in the balance to arrive at a choice.

Applied in Ireland in Fitzpatrick v FK (2008) Miss Justice Laffoy

blood transfusion case, Jehovah’s witness, did not want transfusion, following haemorrhage after giving birth

Refused consent and it was overridden by the hospital Subsequent case for assault Laffoy J. found in favour of the hospital and adopted the 3

stage approach


Capacity approaches

Functional test versus old status test - all or nothing test. Across-the-board assessment Shtukaturov v Russia 44009/05 June 2008 (contrary to

Human Rights)

The new model focuses on the dignity of the human being and on issues of integration – emphasis on ability rather than disability – to enable a person with limited decision making ability to have input into decisions made regarding their care.

The functional approach results in a proportionate minimum incursion on an individual’s decision – making autonomy. (Patricia Rickard-Clarke Law Society lecture February 2007)


Capacity approaches

In functional approach, capacity is assessed on an issue specific basis

time specific Assessment will be different depending on decision (in EH the Supreme Court’s decision is indicative of

the old status approach) This new approach to capacity is reflected Law Reform

Commission Report on Vulnerable Adults and the Law and Mental Capacity Bill 2009.

Endorsed also in Masterman-Lister v Brutton & Co (2003) 3 A11 ER 162. (Court of Appeal)


Current position regarding decisions for persons lacking capacity Next of kin has no general authority Wards of Court

Status approach to capacity No participation by person subject of

application No review

Enduring Power of Attorney No provision for health care decisions No public oversight


Capacity and nursing home care Enduring power of attorney –examine the

power of attorney document to see if care decisions can be taken by attorneys under the document.

Wardship – consent not required from the ward, who is legally not capable of making any decisions. Decisions made for the ward

Family do not have legal status, cannot make decisions for incapable person.

Capacity legislation – Mental Capacity Bill, legislative changes urgently required


Mental Capacity Bill

Presumption of capacity No intervention unless necessary having regard to

needs and individual circumstances Every effort must be made to assist person Unwise decision does not mean lack of capacity Least restrictive of person’s rights and freedom of

actions Due regard to respect the rights – dignity, autonomy,

privacy and bodily integrity Account of past and present wishes Any act or decision - best interests applied


Thank you

Áine Hynes

St.John Solicitors


Date post:	24-Dec-2015
Category:	Documents
Upload:	maximilian-johnston
View:	217 times
Download:	0 times

Áine Hynes St. John Solicitors Mental Health Law Written by Áine Hynes for the Public Interest Law...

Documents