recent mental health case-law and update on capacity legislation
TRANSCRIPT
Recent Mental Health Case-Law and Update on Capacity Legislation
Darius Whelan, School of Law
Study Day in Psychiatry, Limerick, December 2017
A. Cases 2015-2017:
– 12-month renewal orders
– Pregnant child
– GP Recommendation
– Defect in Admission Order
B. Convention on Rights of Persons with Disabilities (CRPD)
C. Report of Expert Group on Review of Mental Health Act
D. Deprivation of Liberty Safeguards
E. Update on Capacity Legislation
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Summary
A.B. v CD of St Loman’s Hospital [2017] IEHC 360
• 12-month renewal order for man with intellectual disability (unsuitable placement in psychiatric ward)
• His legal team accepted he had a mental disorder within the meaning of the Mental Health Act 2001
• He argued lack of ability to apply for review for 12 months breached the Constitution and the European Convention on Human Rights
• Binchy J. – he did not have locus standi on the constitutional point (as tribunal would simply affirm)
• On the ECHR point, Binchy J. issued a declaration of incompatibility – in this respect, the MHA2001 is incompatible with the ECHR
• This is only the third such declaration in 15 years.
• The Act has not been amended
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12-month
renewal
orders
Health Service Executive v B.S. [2017] IEDC 18
• Child was pregnant; had been detained under Mental Health Act 2001 as she was suicidal
• HSE had applied for order to District Court and it was granted (detention for 14 days)
• Six days later, the case came before Horgan P., President of the District Court
• Mother and guardian ad litem were applying for girl’s release (discharge of the first order)
• Horgan P. granted release
• Medical reports showed she did not have a mental disorder within the meaning of MHA2001
• Agitated state – shouting and screaming; throwing items around bedroom
• Possible Post Traumatic Stress disorder
• Now more settled
• HSE agreed the girl should be discharged
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Pregnant
child
Photo By Dennis Jarvis Macedonia-02845, CC BY-SA 2.0,
https://commons.wikimedia.org/w/index.php?curid=32681787
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L.B. v CD Naas General Hospital (2015)
• Applicant made various arguments, all rejected:
– GP “pre-judged” issue
– Short interaction with person at Garda station
– GP had fear of person, which would disqualify her from making recommendation
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GP
Recommendation
Photo from hselibrary.ie
M. v CD, Dept of Psychiatry, University Hospital Limerick [2016] IEHC 25
• Error in an admission order where wrong year was used. Admission order was dated 16 December 2016 when it should have been dated 16 Dec. 2015
• A renewal order had been made on 4 January 2016.
• Barrett J. refused to order applicant’s release.
• The error had no 'domino effect' which tainted the validity or legality of a subsequent renewal order which had been correctly dated.
• “The renewal order of 4th January, 2016, is the order on which Mr M’s continuing detention is grounded at this time.
• … The currently extant renewal order is not affected by any dating error that presented in the now-defunct, initial admission order.”
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Defect in
admission
order
Photo – Limerick Post
• F. v Mental Health Tribunal [2016] IEHC 623 -An appeal to the Circuit Court becomes moot where the admission order is supplanted by a renewal order
• HSE v K.W. (2015) – Child had reached age of majority – detained in centre in Ireland –inherent jurisdiction of court
• Governor of X Prison v P.McD. [2015] IEHC 259 – Baker J. - Prisoner with capacity could refuse food (hunger strike)
• A.B. v C.D. [2016] IEHC 541 – Humphreys J. -State can override prisoner’s refusal of treatment.
• A number of ward of court cases in media
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Some other
Case-Law
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www.mhcirl.ie/for_H_Prof/Mental_Health_Tribunals/
I. Georgieva, E. Bainbridge, D. McGuinness, M. Keys, L. Brosnan, H. Felzmann, J. Maguire, K. Murphy, A. Higgins, C. McDonald and B. Hallahan
‘Opinions of key stakeholders concerning involuntary admission of patients under the Mental Health Act 2001’
(2017) 34 Irish Journal of Psychological Medicine 223
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Recent
Study
SU = Service User
FM = Family Member
TM = Tribunal Member
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B. UN Convention on Rights of Persons
with Disabilities (2006) - CRPD
0Paradigm shift: away from medical model to social model
0Emphasis on will and preferences of person and assisted decision-making
0Equality for people with disabilities
0No deprivation of liberty based on disability
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Art.14 – Existence of a disability shall in no case justify a deprivation of liberty
0 Office of High Commissioner for Human Rights: Grounds for detention must be de-linked from disability
0 When UK ratified Convention, it did not change its mental health legislation
0 ECtHR has referred to CRPD as basis for existence of European and universal consensus on need to protect persons with disabilities from discriminatory treatment0 E.g. Glor v Switzerland (2009)
0 Affected reasoning in M.X. v HSE (No.2)
0 How will conflict between art.5 ECHR and art.14 CRPD be resolved?
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C. Report of the Expert Group on the Review of the Mental Health Act 2001 (2015)
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0Rights based approach should be adopted in new legislation
0Best interests to be replaced by Guiding Principles:
0 Enjoyment of highest attainable standard of mental health
0 Autonomy and self determination
0 Dignity
0 Bodily integrity
0 Least restrictive care
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0New criteria for detention –0 Suffering from mental illness which makes it necessary
to receive treatment in an approved centre and
0 It is immediately necessary for protection of person’s life, for protection from serious + imminent threat to person’s health or for protection of other persons and
0 Reception, detention and treatment likely to materially benefit the person’s condition
0 If on admission it appears the person may lack capacity, there must be a formal capacity assessment within 24 hours
0Voluntary patient must have capacity to consent to admission
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0Admission
0 Authorised Officer (AO) will make all applications
0Family/carer may request second AO
0 Admission must be certified by Consultant Psychiatrist after examination of the patient and following consultation with at least one other Mental Health Professional (MHP) of a different discipline that is and/or will be involved in the treatment of the person in the approved centre.
0 If person may lack capacity, there must be a formal capacity assessment within 24 hours
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0 If person requires support to make the decision re voluntary admission, that support must be provided
0 If person does not have capacity, may be admitted involuntarily
0 “voluntary” patient is person who has capacity to decide regarding admission and gives informed consent to admission
0 Intermediate patient – do not have capacity to consent to admission but do not fulfil criteria for detention –will have reviews by Review Board
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0Renewal – consult with Mental Health Professional (MHP) of different discipline
0Third renewal max. 6 months (down from 12 months)
0Re-grading from voluntary to involuntary
0 No need for person to indicate wish to leave
0 AO will attend approved centre
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0Administration of medicine:
0 3 months reduced to 21 days
0 Consult MHP of different discipline
0 Further reviews every 3 months (earlier on request)
0ECT
0 ECT may proceed if decision-making representative (DMR) gives consent
0 Otherwise, MHRB must approve ECT
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0Tribunals renamed as Mental Health Review Boards (MHRBs)
0MHRBs will have authority to establish if there is an individual care plan in place, that it is compliant with the law, that views of patient and MD team were sought
0 First review within 14 days
0 Psychosocial report (by person from the approved centre) as well as s.17 report
0 In compiling s.17 report, CP must consult with another MHP of a different discipline
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Mental Health (Amendment) Bill 2017
0 Short Fianna Fáil Bill – proposes to implement some of changes in expert group report, e.g. change in definition of ‘voluntary patient’
0Government does not oppose the Bill
0However, if passed, will not be commenced until Capacity legislation fully commenced
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D. Deprivation of Liberty Safeguards
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E. Update on Capacity Legislation
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Assisted Decision-Making (Capacity) Act 2015
0 Passed December 2015
0Most of the Act has not been commenced, and will take a number of years to commence
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0 Capacity means decision-making capacity
0 Personal welfare or financial issues
0 Operate bank account, spend money, decide where to live, make medical decision
0 Capacity is to be construed functionally – ability to understand nature and consequences of decision at time decision is made
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0 Person lacks capacity if unable to
• Understand info relevant to decision
• Retain that information
• Use/ weigh that information
• Communicate his/her decision, perhaps with assistance or through a third party
0Act recognises that sometimes person may only be able to retain info for short period only
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0 Presumption of capacity unless contrary shown
0 All practicable steps must be taken to help person to make decision
0 Making an unwise decision does not make person unable to make decision
0 Interventions should only be made where necessary
0 Interventions must minimise restrictions and respect dignity, bodily integrity, privacy and autonomy
0 Intervener (e.g. person helping with decision) shall facilitate person to participate
… Cont’d >
Guiding Principles
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Intervener shall
0 give effect to person’s past and present will and preferences
0 take into account person’s beliefs and values
0 consider views of any person named by person
0 consider views of decision-making assistant, co-decision-maker, decision-making rep. or attorney
Intervener may consider views of carers; people with bona fide interest in person’s welfare; healthcare professionals
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Decision-making assistant (DMA)
• Person may appoint a DMA to assist them in making decisions re personal welfare or property and affairs or both
• Person must consider their capacity is in question or may shortly be in question
• DMA can assist person in obtaining info; explain info; ascertain will and preferences of appointer; ensure appointer’s decisions are implemented
• Notify office of Director of Decision Support Service
32Photo by Joshua Earle from Unsplash CC0
Co-Decision Maker (CDM)
• Person appoints CDM to jointly make decisions with them
• CDM must be trusted relative/ friend
• Circuit Court approves the co-decision-making agreement
33Picture – CourtsService.ie
0 Circuit Court appoints DMR for person
0 Person lacks capacity to make decisions, even with CDM
0DMR may make decisions
0This is substitute decision-making
0 Supervised by office of Decision Support Service
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0Extends EPAs to deal with healthcare decisions –giving or refusing treatment, other than refusing life-sustaining treatment
0Attorneys will apply to office of Decision Support Service for registration of EPA
0Annual reports to DSS
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0Advance Healthcare Directives
0 An advance expression made by the person of his/her will and preferences concerning treatment decisions that may if he/she subsequently lacks capacity
0 Must be signed and witnessed
0 Also signed by designated healthcare representative, if one is named
0 [e.g. friend or relative]
0 AHD shall be complied with unless at the time it is proposed to treat maker of AHD he/she is involuntarily detained under Mental Health Act 2001
0 General law on assisted suicide still applies
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0Decision Support Service –0 http://www.mhcirl.ie/DSS/
0HSE page on ADM (Capacity) Act –0 http://www.hse.ie/eng/about/Who/QID/Other-
Quality-Improvement-Programmes/assisteddecisionmaking/
0Refers to development of Codes of Practice by National Disability Authority
0Dept of Justice and Equality - €3m allocated to DSS in 2018 0 http://www.justice.ie/en/JELR/Pages/PR17000324
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