A general overview-level talk on mental health law from April 2012

1. Mental Health and the Law
April 2012 / Darius Whelan

2. Ill ?
Insane ?
Oslopolitidistrikt CC BY ND

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9. 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

11. 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

12. Mental Health Tribunals
Consultant Chairperson: Another
Psychiatrist Barrister / Solicitor Person
• 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
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13. 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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14. 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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15. 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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16. 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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17. 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)
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18. http://mhc.thelearningcentre.ie

19. • 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
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20. 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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21. MHTs – Proposals for Reform
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22. 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 22