Mental Health Act 2001:General Outline

Darius Whelan, Faculty of Law, UCC

Law Society Diploma in Civil Litigation, March 2011

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Mental Health Act 2001:Preliminary Comments

□ Generally referring to detained patients□ “Patient” in Act means person admitted under the Act,

i.e. detained involuntarily (s.2 & s.14(1)(a))

□ Generally referring to adults rather than children □ “child” = under 18 in this Act

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□ Key principles in s.4 of Act: □ Best interests of the person are to be the

principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm.

□ Where it is proposed to make recommendation or an admission order in respect of person, or to administer treatment to person, person must be

□notified of proposal and □entitled to make representations

□ Due regard must be given to need to respect person’s right to dignity, bodily integrity, privacy and autonomy.

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The Criteria for Detention

□ “Mental Disorder” (s.3):□ Mental Illness, Severe Dementia or Significant

Intellectual Disability wherea) Because of the illness / dementia / ID there is a

serious likelihood of harm to self/ others, orb) (i) Because of the severity of the illness / dementia /

ID, the person’s judgement is impaired; failure to admit him/her likely to lead to serious deterioration of condition or prevent appropriate treatment and(ii) detention would be likely to materially benefit / alleviate person’s condition

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□ Exclusions (s.8):□ Person may not be involuntarily detained solely

on grounds of□Personality disorder□Social deviance□Drug / intoxicant addiction

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Other Definitions

□ “mental illness” means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgement 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

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□ ''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

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□ M.R. v Byrne and Flynn (O’Neill J., 2007)□ S.3(1)(a) – serious likelihood of immediate and serious

harm to self/ others – envisages a high level of probability

□ “Harm” – physical and mental injury are included□ “Serious” – Infliction of minor physical injury to person

themselves could be regarded as not serious

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□ “Serious likelihood” in s.3(1)(a) :□ “In my view what the Act envisages here is a

standard of proof of a high level of probability. □ This is beyond the normal standard of proof in

civil actions of ‘more likely to be true’, but it falls short of the standard of proof that is required in a criminal prosecution namely beyond a reasonable doubt and what is required is proof to a standard of a high level of likelihood as distinct from simply being more likely to be true.” [O’Neill J., M.R.]

Detention by Garda

□ S.12□ Harm criterion only□ S.C. v Clinical Director, St Brigid’s (2009)

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Procedure for Involuntary Admission

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RecommendationApplication Admission Order

□ Focus will be on adults (over 18) being detained under ss.9-14

Main Time LimitsApplication

Examination and Recommendation by Doctor

Detention by cons. / dr. / nurse7 days24hrs

Admission Order

Psych. 2 tasks1st Renewal

14 daysof direction from MHC

2nd Psych.report

24hrs

24hrs

MHCom

21 days

Renewal 2

Renewal 3

3 mths

6 mths

12 mths

Subseq. Renewals

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Who may apply?

□ Spouse / civil partner / cohabitee [not separated]□ Parent/ grandparent / sibling/ uncle/ aunt/ niece/

nephew / child□ Garda □ Authorised person [inserted 2009] □ HSE authorised officer□ Any other person

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Application / Recommendation/ Admission

□ Applicant must have observed person not more than 48 hours before application s.9(4).

□ Doctor to whom application for admission is made must examine patient within 24 hours of receipt of application s.10(2)□ [Doctor must not be member of staff of approved centre to which

person is to be admitted; must not be spouse or relative; must not have interest in payments for person’s care at approved centre.]

□ Doctor’s recommendation remains in force for 7 days. s.10(5)

□ Admission order by consultant psychiatrist on staff of approved centre must be made within 24 hours of detention. s.14(2)□ (This 24 hour detention can be by consultant, doctor or nurse)

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Admission and Renewal Orders

□ Within 24 hours of admission order (or renewal order) – s.16(1):

□ Psychiatrist must:□ Send copy of order to Mental Health Commission□ Give information notice in writing to patient (7 items on list)

□ Admission order remains in force for 21 days. □ First renewal order may be made within 21 days for a

period not exceeding 3 months. s. 15(1) and (2)□ (Psychiatrist must have examined person within previous

week.)

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□ Next renewal order may be for a period not exceeding 6 months from expiry of previous renewal. s.15(3)□ (Psychiatrist must have examined person within previous

week.)

□ Subsequent renewal orders may be for periods not exceeding 12 months each. s.15(3)□ (Psychiatrist must have examined person within previous

week.)

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□ McMahon J. – Judicial Review case re St. Patrick’s Hospital, Dublin

□ Renewal order which does not specify a particular period of time, but merely provides that it is an order for a period "not exceeding 12 months" is not an order permitted under the legislation and is void for uncertainty

□ Ordered release but with stay of four weeks □ Statutory forms have now been revised□ Mental Health Act 2008 – emergency legislation□ Irish Times - http://tinyurl.com/irtimes333

S.M. v Mental Health Commission (2008)

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□ Once Mental Health Commission receives admission or renewal order, it must (s.17):□ Refer matter to a tribunal□ Assign a legal representative to the patient□ Direct a second opinion psychiatrist to examine patient,

interview psychiatrist and review records.□ Second opinion psychiatrist must report within 14 days of

the direction (s.17)□ Second opinion psychiatrist must send report to Mental

Health Commission and copy to patient’s lawyer.

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□ Mental Health Tribunal must decide to confirm or revoke order within 21 days of making of order s.18(1) and (2)

□ Extensions (of 21 day period for MH Trib decision):□ First extension - 14 days of tribunal’s own motion or at request

of patient.□ Second extension of 14 days only on application of patient.

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Detention of Children

□ Detention of children (under age 18) s.25□ Application only by HSE□ Once District Court has psychiatric report it can detain

child for 21 days s.25(6)□ Renewal by court – max. 3 months s.25(9).□ Second and subsequent renewal – 6 months – s.25(10).

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Re-grading of Voluntary Patient as Involuntary Patient

□ Two stages:□ Temporary Detention under s.23(1)□ Certificate and Admission Order (s.24)

□ Patient must indicate intention to leave□ Psych. / dr. / nurse may detain for 24 hours

□ 3 days re children due to need for D.C. Hearing

□ Then psych. may detain under Act□ Q. v St. Patrick’s Hospital, O’Higgins J., ex

tempore, 21 Dec. 2006□ Confirmed two stages needed

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De Facto Detention

□ Voluntary Patient who □ does not have capacity to consent to admission, and/or □ wishes to leave centre but fears re-grading as

involuntary patient

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“Bournewood Gap”

□ R v Community and Mental Health NHS Trust, ex parte L. (1998)□ House of Lords: De Facto Detention justified by common

law doctrine of necessity

□ H.L. v United Kingdom (2004)□ European Court of HR: Detention of this kind breaches

Article 5

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E.H. v Clinical Director St. Vincent’s (2009)

□ Detained Aug. 2008□ Renewal order revoked Dec. 10 2008 – wrong

date on order□ treated as voluntary patient from Dec. 10 to 22.□ Dec. 22 – S.23 and 24 re-grading invoked.□ High Court – O’Neill J. – detention was lawful.□ Very significant that O’Neill J. did not state that

the Act requires that a “voluntary” patient be capable of consenting to their admission.

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□ O’Neill J. did not refer to J.H. v Russell, where it was held that if the relevant period where a patient was, apparently, a voluntary patient, was not in substance properly voluntary, this renders his/her detention unlawful.

□ While J.H. v Russell concerned the 1945 Act, it would be have been useful to compare the meaning of “voluntary patient” in the 1945 Act with its meaning in the 2001 Act.

□ H.L. v U.K. could have been discussed in greater detail, for example the requirement for periodic review in Article 5(4) as applied in that case.

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Supreme Court – Kearns J. – □ Mere technical defects should not give rise to a rush to

court□ The definition of voluntary patient cannot be given a

meaning which is contra legem.□ Even if her status was questionable on Dec. 22, the current

certification was based on a renewal order made on April 9, 2009, against which no challenge had been brought.

□ He had difficulty in seeing the relevance of H.L. v U.K.□ Also, no domino effect applies and the case was a moot.

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□ As Kearns J. states, in H.L. v U.K., as a result of the lack of procedural regulation and limits, the hospital’s health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit.

□ The European Court said the very purpose of procedural safeguards is to protect individuals against any misjudgements and professional lapses and concluded that Article 5(4) had been breached.

□ The Supreme Court’s response to this in E.H. is to state that H.L. could not possibly bear on the applicant’s detention subsequent to December 22, 2008.

□ However, this glosses over the fact that from December 10 to 22, those protections were not available.

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Mental Health Tribunals

□ Chairperson must have 7 yrs practice immediately before appointment

□ Psychiatrist may be retired psychiatrist employed by Health Board 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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Scope of Review

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

□ To affirm the order, s.18 states that the MHT must be satisfied that □ the patient is “suffering from a mental disorder” and

that □ 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”

□ Burden of proof cannot be placed on patient□ If the patient is discharged before the MHT

hearing, he/she may still request that the MHT review be continued

□ The patient may appeal to the Circuit Court against the decision to affirm an admission or renewal order within 14 days of receiving notice of a MHT decision□ Burden of proof in appeals: T.S. v Mental Health

Tribunal (2008)

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□ Extensions of Time for MHT Decisions□ A renewal order is not extended by an extension

of this type□ J.B. v Director of Central Mental Hospital (No.3) (2007)

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The Legal Representative

□ Patient normally uses services of legal representative assigned by Commission

□ Important protection for patient’s rights□ Legal Aid Scheme + Terms and Conditions□ If patient does not have capacity to consent to

disclosure of medical records, records may be disclosed to legal representative□ E.J.W. v Watters (2008)

□ Leave of High Court□ S.73 □ Leave 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)

□ Leave not granted – M.P. v HSE (2010)

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Further Reading

□ See list of further reading at end of lecture notes

□ Follow on Twitter - @dariuswirl

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