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IMPLICATIONS FOR PSYCHIATRISTS OF CASE-LAW ON THE MENTAL HEALTH ACT 2001Darius Whelan, Faculty of Law, UCC

RAMI, Cork, Feb. 2013

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Cases 2010-2013: “Voluntary” or not? Can blood samples be taken? Consent Issues Re-grading: Voluntary to Involuntary “Examination” by doctor prior to admission Leave for civil proceedings – s.73

Interim Report of Steering Group on Review of Mental Health Act

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“VOLUNTARY” OR NOT?

P.L. v Clinical Director of St Patrick’s University Hospital – 2 judgments in 2012 Mr. L. was involuntary, then voluntary Special Care Unit – locked ward Expressed a desire to leave on a number of occasions, Tried to jump over garden wall on three occasions. Forcibly restrained 30 times.

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First judgment : Peart J. - “Voluntary” patient need not have

consented to their admission. Even if patient indicates wish to leave, that

doesn’t mean that patient must be re-graded under ss.23/24.

Consultant or other staff can talk to patient; reassure him; encourage him to stay

Clinicians must be permitted a wide margin of appreciation in how they might consider bets interests of patient served

Very deferential to medical opinion

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Second judgment: Mr L. sought to raise issues under European

Convention on Human Rights (ECHR) Peart J. – Mr L. had capacity to consent, and did

consent, to his voluntary status in the hospital Therefore he did not have standing to challenge

Act on basis of how it might apply to other persons who did not have capacity

This case was different from H.L. v UK and M. v Ukraine

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CAN BLOOD SAMPLES BE TAKEN?

Health Service Executive v M.X. (2011) Ms. X. was an involuntarily patient at the CMH. The treating staff sought to obtain blood samples, to

ensure the medication did not have adverse side effects

Ms X resisted the attempts by staff to obtain these blood samples.

Medical evidence – she did not have the capacity to make decisions with regard to her medical treatment.

Mac Menamin J. - Section 3 – in referring to “treatment” (defined in s.2) - allows for a medical procedure which “is ancillary to and part of the procedures necessary to remedy and ameliorate [the patient’s] mental illness or its consequences”

… Cont’d …. >>>

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Word “ treatment‟ is ambiguous and is capable of being interpreted broadly or narrowly.

Purposive interpretation of Mental Health Act. Intent of Oireachtas in Act is to give priority to

patient’s life and health (see s.57). It would be absurd that those treating the

patient to restore her health would be precluded from taking measures necessary to safeguard her life.

As Ms X lacked the capacity to make decisions in accordance with Act, Court must apply an objective test as to what is in her best interest.

No evidence that her wishes would be otherwise if she had full capacity.

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APPLIED TO A CHILD

The finding was applied to a child detained under s.25 in Health Service Executive v J.M. (2013)

15-year-old girl who had been detained under s.25 of 2001 Act in Merlin Park hospital, Galway.

She was being administered medication without her consent. Could a blood sample also be taken?

Blood sample was needed to test for possible side-effects of medication.

HSE sought court order authorising the taking of the blood sample. Girl's parents supported the taking of the sample. Birmingham J. granted the order sought. He relied on HSE v MX and extended this to a child.

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2ND M.X. JUDGMENT – CONSENT ISSUES

In November 2012, Mac Menamin J. issued a second judgment in the M.X. case

He found that s.60 of the 2001 Act was not unconstitutional and did not breach ECHR.

In light of the Convention on the Rights of Persons with Disabilities (CRPD), s.60 must be interpreted in a manner which grants the person a right to an assisted decision making process.  

He acknowledged that paternalistic nature of Act had been emphasised in cases such as E.H., but he said this case was different as it was about treatment rather than liberty (para.59).  

Key paragraph - "73. I believe a constitutional reading of s. 60 of the Act of 2001

now requires that this range of rights must be recognised at the constitutional as well as the legal level, especially if the present application of that legal provision does not vindicate those rights ‘as far as practicable’ ….”

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[Remainder is paraphrased here : ] Constitutional protections must act as counterweight to

nature of incursion into fundamental constitutional rights. Professor Kennedy’s evidence establishes that every effort is

made to engage a patient in the decision-making process, and that when a patient regains sufficient mental capacity, they will again be empowered to make decisions regarding their treatment, including regained ability to give or withhold consent.

Why then should the voice of a patient not be heard, and if not by the patient, then through a representative?

This was not a situation where the plaintiff had family members to speak for her. Such a situation may arise in other cases.

What is necessary is to achieve the maximum protection which is 'practicable'.

If patient lacks capacity, it follows that patient should, where necessary, be assisted in expressing their view as part of the decision-making process?

It cannot be said that such a process is impractical. Constitutional duty involved here is a positive one.

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Mac Menamin J. - Form 17, which deals with medicine for longer than three months, may need to be reviewed as it does not contain a space to record the patient's views.

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RE-GRADING – VOLUNTARY TO INVOLUNTARY

B.F. v Clinical Director of Our Lady’s Hospital, Navan (2010) Voluntary patient may be discharged with a view

to re-admission using involuntary procedure Mr F. did not indicate intention to leave, so

ss.23/24 could not be used Hospital wanted to change status to involuntary

so that he could be transferred to CMH, which only takes involuntary patients

Peart J.: Staff acted in F’s best interests Once criteria in s.3 are satisfied, person may be

admitted on involuntary basis even if they wish to stay on voluntary basis

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“EXAMINATION” BY DOCTOR PRIOR TO ADMISSION

X.Y. v Clinical Director of St Patrick’s University Hospital (2012) Doctor observed woman in a school park at a

distance. It was argued that her detention was unlawful as

examination was inadequate. Hogan J. - the subsequent examination by

the psychiatrist at the hospital had been adequate, and if that examination is adequate, it forms the basis for the detention rather than the one by the doctor.  

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But he said: The fact that s. 10(2) envisages that a registered medical practitioner can

carry out an examination without informing the patient where the doctor concludes that this "might be prejudicial to the person's mental health, well-being or emotional condition" necessarily suggests that an observation of the patient from a distance can - at least in some circumstances - also constitute a "personal examination" for this purpose, not least where (as here) the registered medical practitioner is very familiar with the patient's clinical presentation.

It was unnecessary to decide this question Comment: s.10(2) requires that there must be a face to face

examination as defined in s.2(1); the doctor just doesn’t have to say why the examination is taking place.

Hogan J. glosses over the wording of s.10(2) as it only talks about not telling the person the purpose of the examination; it does not talk about carrying out an examination without telling them in a general sense.

S.73 Leave (permission) of the High Court is required

before civil proceedings are brought in respect of an act purporting to have been done in pursuance of the Act

Section is now of doubtful constitutionality following a ruling concerning a similar section (with different wording) in the 1945 Act – Blehein v Minister for Health & Children (2008)

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LEAVE FOR CIVIL PROCEEDINGS

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LEAVE TO SUE HOSPITAL GRANTED

A.L. v Clinical Director of St. Patrick’s Hospital (2010) Mental Health Commission had failed

to convene tribunal and therefore patient had no review for six months.

Administrative error. Renewal order faxed to Commission but nobody in Commission had taken proper action.

Could hospital be sued as well? Ms L. argued – Hospital was on notice

that there was a problem as no tribunal took place

Clarke J – Ms L. had an arguable point that hospital had been negligent as well

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LEAVE NOT GRANTED

M.P. v HSE (2010) Ms P. said she was subject to torture by the doctors

and ward nurses; Department of Justice had contacted her landlord and her neighbours with the intention of turning them against her; national broadcasters were conspiring with HSE etc. to “stitch-up” diagnosis of schizophrenia.

Mac Menamin J. found on facts that leave should not be granted

S.73 should be interpreted in proportionate manner Reviews case-law on “frivolous or vexatious” claims Finds Ms P’s case to be both frivolous & vexatious

and lacking evidence of bad faith / want of reasonable care

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LEAVE GRANTED

A.M. v Kennedy (2013) In 2006, detention had been extended (under 1945 Act) for six

months from 18/8/06. (Expired on 17/2/07.) But on 19/2/07 renewal order was made (based on mistaken

interpretation of law). It was believed that order made on 18/8/06 could not take effect until

24/2/06 [as last order had started on 24/2/06] and would then last six months. To avoid overlaps.

2007 – This was found to be unlawful Ms. M. now suing for damages HSE and others argued: the renewal was a deliberate act, made

bona fide (based on mistaken interpretation of law). So not negligent.

O’Malley J. did not accept this argument. Would confer broad immunity in these cases.

O’Malley J. granted leave.

Interim Report of the Steering Group on the Review of the Mental Health Act 2001 (2012)

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Act should be re-focused away from best interests in order to enhance patient autonomy

Key principle should be autonomy and self-determination Admitting clinician should be required to certify that it is not

possible for the person to receive the necessary care and treatment in the community [implementing the least restrictive principle]

Significant intellectual disability should not be grounds for involuntary detention

Treatability should perhaps apply across the board [principle of reciprocity]

“Or” between s.3(1)(a) and (b) should be changed to “and/or” 24 hour initial detention should be reduced to 12 hours. A

psychiatrist would need to examine the person within 12 hours. There should be no treatment during those 12 hours.

Longest renewal order should be 9 months (down from 12 months)

SAMPLE RECOMMEDATIONS

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Patient should be able to nominate another person to attend the tribunal with them, e.g. a family member, friend or advocate

If the patient has capacity to refuse a tribunal, this should be respected. [Who decides on capacity? ]

Review of role of independent psychiatrist is needed.

Voluntary patients should be voluntary in all respects – should be informed of their common law rights to give or withhold consent and to leave the centre

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Sections 23 and 24: UN Committee against Torture – 2011 – more clarity

needed on this. On admission as a voluntary patient the informed

consent of the patient to admission and a course of treatment should be required.

If patient refuses, the admission should not proceed. Where voluntary patient refuses all treatment they should be discharged.

If voluntary patient wishes to leave, they should be allowed to do so. However if staff believe he/she is a risk, the person should be detained for 12 hours. Authorised Officer (AO) should be called. If AO wishes, can then make application for involuntary admission in normal way to medical practitioner who is not member of staff of approved centre.

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Act should state person is presumed to have capacity to make decisions in relation to admission and treatment.

Where reasonable grounds to believe patient lacks capacity, capacity should be assessed.

Person may either have capacity, have fluctuating capacity (requires support) or lack capacity (Consent can be provided by Personal Guardian).

Person should get supports necessary to assist them in making their decision. (applying proposed capacity legislation).

Substituted decision making should be applicable only as last resort.

Have regard to patient’s known will and preferences. Assessment of capacity should be by an independent mental

health professional. For patients with a Personal Guardian, capacity legislation will

provide sufficient protection. Where Inspector has concerns regarding a voluntary patient,

he/she should be able to refer the case to a tribunal

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UN Convention on Rights of Persons with Disabilities (2006) -

CRPD Art.14 – Existence of a disability shall in no case justify a

deprivation of liberty Office of High Commissioner for Human Rights: Grounds for

detention must be de-linked from disability When UK ratified Convention, it did not change its mental

health legislation Note ECtHR has referred to CRPD as basis for existence of

European and universal consensus on need to protect persons with disabilities from discriminatory treatment

Glor v Switzerland (2009)

Affected reasoning in M.X. v HSE (second judgment) How will conflict between art.5 ECHR and art.14 CRPD be

resolved?

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d.whelan@ucc.ie