Falling through the gaps, Dr Mary Donnelly, NUI Galway, 23 June 2012. Mental health law reform: new perspectives and challenges

1. FALLING THROUGH THE
GAPS?: FORMULATING
Mental Health Law Reform:
New Perspectives and
Challenges
Centre for Disability, Law
REFORM IN A DUAL-
and Policy, National
University of Ireland, Galway
June 23, 2012
Dr Mary Donnelly,
MODEL SYSTEM
Law Faculty,
University College Cork

2. ‘PROCESS’ TO DATE
 1992: Paper on Mental Health
 1999: White Paper: A New Mental Health Act
 2001: Enactment of Mental Health Act
 April 2002: Commencement of Par t of MHA and Establishment of
Mental Health Commission
 2003: Law Reform Commission Consultation Paper: Law and the Elderly
 2005: Law Reform Commission Consultation Paper: Vulnerable Adults
and the Law: Capacity
 Nov 2006: Commencement of Mental Health Act 2001 in full
 Dec 2006: Law Reform Commission Repor t: Vulnerable Adults and the
Law
 2008: Scheme of Mental Capacity Bill
 2011: Announcement of Review of Mental Health Act 2001
 201 2: Publication of Mental Capacity Bill – Promised
 22 June 201 2 (yesterday!): publication of Interim Repor t of Steering
Group on the Review of the Mental Health Act

3. IN THE MEANTIME … THE WORLD MOVES
ON
 Expansion of ECHR jurisprudence
 Convention on the Rights of Persons with Disabilities
 Inception
 Drafting
 Negotiations
 Agreement
 Commencement
 Signature
 By Ireland (and 152 other states)
 Ratification
 By 114 states (not including Ireland)

4. SUPPORTING INERTIA
 Po l it ic al Wi l l
 Other distractions – but only from 2008
 Few votes in mental health reform
 Absence of high profile ‘law and order’ case
 Judi c i a l At t i t ude s
 Mental Health: Generally supportive of ‘the overall scheme and paternalistic
intent of the legislation’ (Kearns J. in EH v St Vincent’s Hospital [2009] IESC 46)
 Mental Capacity: Less supportive of Lunacy Regulation (Ireland) Act 1871 (see Re
Francis Dolan [2007] IESC 26) but no decisive kick
 Reluctance to engage with ECHR

5. AN ALTERNATIVE VIEW OF THE PROCESS
Mental Health Mental Capacity
 1992: Green Paper on  2003: LRC: Law and the
Mental Health Elderly
 1999: White Paper: A
New Mental Health Act  2005: LRC: Vulnerable
 2001: Mental Health Act Adults and the Law:
 April 2002: MHC Capacity
 2006: MHA commences  2006: LRC Report
 2011: Review of MHA  2008: Scheme of Bill
 2012: Publication of  2012: Publication of
Interim Review Report
Bill????????????????

6. PERIMETERS OF THE DUAL MODEL
Mental Health Act Everyone else
 ‘Patients’: Compulsorily  ‘Voluntary’ inpatients
Admitted
 ~ 17,000 people p.a.
 ~2,000 people p.a. ~6,000 lacking capacity
 Tribunal Review of  High proportion long-stay
Detention patients
 Second Opinion on  No reviews of detention
Treatment or treatment

7. REFORMING IN A DUAL MODEL SYSTEM

8. THE RISKS

9. POLICY DRIVERS
Mental Health Mental Capacity
 Best interests/rights  Rights Protection
 Public protection  Supported Decision-
making
 Overtly limiting
 Good on language
 Strong on procedural
protections  Weak on delivery

10. FORMULATING REFORM: THE HUMAN
RIGHTS PERIMETERS
 ECHR: Deprivation of Liberty
 Procedural mechanism required: HL v United Kingdom [2005] 40
EHRR 32
 Positive Obligation on State: Stork v Germany (2005) 43 EHRR 96
 Requirement to consider alternatives: Stanev v Bulgaria (2012) ECHR
36760/06
 CRPD
 Equal right to liberty and security of the person: Art 14
 Equal right to Live in the Community: Art 19
 Right to Equal Recognition before the law: Art 12
 Includes a Right to supported decision -making

11. REFORM OPTIONS
 Apply the MHA to all admissions of people lacking capacity
 Imitate England/Wales Deprivation of Liberty Safeguards
 Normative shift to patient -centred assessment of reform

12. APPLYING THE MHA
Advantages Disadvantages
 Neat  Limited suitability for
non-objecting people
 (Probably) ECHR  Question re value of
compliant - although tribunal hearing if person
question re alternatives lacks capacity to instruct
lawyer
 Treatment protections
come very late - 3
months for medication

13. DEPRIVATION OF LIBERT Y SAFEGUARDS
Qualifying Requirements Assessments
 Ove r 1 8 ;
 Suf fe r fro m a m e n t a l di s o rde r;
 An age assessment
 La c k c a pa c i t y to de c i de a bo ut  A mental health
a dm i ssion
 Adm i ssion m us t be i n h e r be s t
assessment;
i n te rest s;  A mental capacity
 S/ h e m us t n ot be i n e ligible fo r
a dm i ssion be c a us e t h e a dm i ssion assessment;
c o n fl ic t s w i t h a pre - ex i s t ing
c o m pul sor y powe r un de r t h e M H A  A best interests
 S/ h e m us t n ot o bj e c t to a dm i s sio n
o r to t re a t m e n t ( i n c luding t h ro ug h
assessment;
a n a dva n c e de c i s ion to t h i s e f fe c t
o r t h ro ug h a c o ur t - a ppo i n te d
 An eligibility assessment;
de put y o r t h e do n n e e o f a l a s t i ng
powe r o f a t to rn ey ) .
 A no refusals
assessment.

14. DOLS: THE PROBLEMS
 A technical solution to a human rights problem
 Complex, confusing, lack of understanding
 New gaps created
 Limited role for representative - Clear power imbalance: see
London Borough of Hillingdon v Near y [2011] EWCP 1377
(COP)
 No specific protections on treatment

15. STANDPOINT

16. SOME SUGGESTIONS
 Seek to avoid the dangers of technicalities
 Enhance the functions of the representative:
Everyone needs someone in their corner
 Introduce specific oversight measures on ECT/long term
medication
 Develop support framework

17. THE MHA INTERIM REPORT: KEY
RECOMMENDATIONS
 Rights-Based Approach with Right of Autonomy/Self -
determination as key
 Increase in focus of inspectorate – including community
based care
 Recovery as a guiding principle
 Introduction of Mental Health Advance Directives
 Consider expansion of Advocacy – inc for children
 Stand alone provisions on children
 Removal of ‘unwilling’ from ss. 59 and 60
 Procedural Recommendations around Tribunals

18. INTERIM REPORT: DEALING WITH THE
DUAL MODEL
 Anticipation that many of shortcomings of MHA 2001 re
capacity will be addressed
 Steering Group ‘met with’ Department of Justice and Equality
 Two meeting: 16 Sept 2011 and 20 Jan 2012
 Shared Recognition of need to ‘dovetail’ with Mental Capacity
Bill

19. DEFINING ‘VOLUNTARY’ PATIENTS
 ‘Voluntary’ means:
person who consents on his/her own behalf or with the
support of others to admission
or
On whose behalf a Personal Guardian appointed under the
proposed capacity legislation consents to such admission
Key issue: what will the Personal Guardian’s powers/obligations
be under the MCB?

20. PROTECTIONS FOR VOLUNTARY PATIENTS
 No need for external oversight where patient has capacity and
consents
 Patients with a Personal Guardian: Protections provided under
capacity legislation will provide suf ficient protection of the
rights of individual
 Patients with fluctuating capacity: level of external oversight
 Inspectorate power of referral to Tribunal
 Information provision re legal rights

21. CHANGING STATUS: VOLUNTARY TO
INVOLUNTARY
 Should not be undertaken lightly
 Acceptance of need for treatment should be implicit in
voluntary admission
 Voluntary patients should be allowed leave – subject to 12
hour holding power

22. CONSENT AND INCAPACIT Y
 Patients who are ‘unable’ to give consent – needs
examination light of capacity legislation
 ‘The Group is hopeful that the protections provided to patients
under that legislation will be suf ficient and no further
protections will be required under mental health legislation’

23. END GAME
 Beware empty rhetoric
 Details matter
 What is going to be delivered?
 Importance of holding elected representatives to account
 Law reform is not the end – Monitoring Matters