Mental Health and the Law

April 2012 / Darius Whelan

Ill ?

Insane ?

Oslopolitidistrikt CC BY ND

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Mental Health Act 2001

• E.g. establishes Mental Health Tribunals

• Rights-based focus• Influenced by European Convention

on Human Rights 1950 • “Best interests” of service user

(patient)• Autonomy / privacy / dignity / bodily

integrity / information rights

Issues with 2001 Act

• “Voluntary” patients• Paternalistic interpretation by courts• Sections on treatment are weak• Does not solve issues of wards of

court and other issues of mental capacity

• UN Convention on Rights of Persons with Disabilities 2006

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Mental Health Tribunals

• Chairperson must have 7 yrs practice immediately before appointment

• Psychiatrist may be retired psychiatrist employed by HSE or Approved Centre provided retired within 7 years. s.48(2)

• Other person must not be in previous categories or be a doctor or nurse

Chairperson:Barrister / Solicitor

Consultant Psychiatrist

AnotherPerson

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Functions of MHTs• Main function: automatic review of

detention of patients detained involuntarily

• Other functions:– Role in decisions concerning psycho-surgery– Role in transfers to Central Mental Hospital

• No role in following– Treatment / medication decisions– Criminal matters – separate Review Board

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Limited Powers

• Tribunal has limited powers – only two main choices: confirm or revoke order

• Arguable that Tribunals need to have more extensive powers, e.g. to order conditional discharge; defer discharge until place available

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Representation

• Patient normally uses services of legal representative assigned by Commission

• Important protection for patient’s rights

• Training• Legal Aid Scheme + Terms and

Conditions• Fees

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Statistics• 1,771 MHT hearings in 2011• 145 (8%) revoked at hearing – “Revoked” means MHT ordered patient’s

release

• 3,163 involuntary admissions / renewals/ regradings

• 1,397 (44%) revocations before hearing by Responsible Consultant Psychiatrist

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Frequency of Reviews

• While automatic reviews are desirable, they do not necessarily fully comply with Article 5

• “The detainee’s access to the judge should not depend on the good will of the detaining authority.”– Rakevich v Russia (2003)

http://mhc.thelearningcentre.ie

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• Tribunal must confirm or revoke admission or renewal order

• Section 18 – Excusing Procedural Failings:• To affirm order, MHT must be satisfied that

– patient is “suffering from a mental disorder” and– certain procedures have been complied with, or, “if

there has been a failure to comply with [these procedures], that the failure does not affect the substance of the order and does not cause an injustice.” s.18(1)(a)(ii)

• If revokes order, must direct that patient be discharged

Two schools of thought

• One school: S.18 can only be used to excuse minor failures of an insubstantial nature

• Other school: MHTs can excuse virtually any procedural defect, unless it is in reckless disregard of the statutory scheme

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MHTs – Proposals for Reform

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Amnesty - examples

• Should be audits of MHT hearings• Person subject to detention > 3 months

should have right to apply to MHT for review

• If individual re-graded from involuntary to voluntary before hearing, MHT hearing should be held

• Act should state that only minor failures of compliance … will be excused

• Patient should have right to nominate person to attend MHT with them

• Legal Rep should be appointed within 24 hours

• Legal reps should have access to client records

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