Transcript The Mental Health Act 2001 in Practice: a Legal

Mental Health Law
in Ireland – using
the ECHR
Áine Hynes
St. John Solicitors
Mental Health law:
Before November 2006
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Mental Treatment Acts 1945 to 1961
no right to review
H. -v- Russell & Ors, [2007] IEHC 7
Mr. Justice Clarke acknowledged the difficulties involved for
medical personnel in dealing with the inadequacies of the 1945
Act
“persons were required to operate within a wholly unsatisfactory
statutory framework”
“forced those within the system to operate for far too long on the
basis of a system which was manifestly not fit for the purpose”
CMH cases dealing with unlawfulness based on the H case –
100s of patients unlawfully detained throughout Ireland on the
basis of continually renewed temporary orders which should
have had a maximum lifespan of 2 years.
Why was the law changed?
European Convention on
Human Rights
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Article 5: Everyone has the right to liberty and security
of person.
No one shall be deprived of his liberty save … in
accordance with a procedure prescribed by law
5(4) “Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the
detention is not lawful.”
X v United Kingdom (1981) it was held by virtue of
article 5(4) that a person of unsound mind who is
compulsorily detained in a psychiatric institution for an
indefinite or lengthy period is in principle entitled…to
take proceedings at reasonable intervals before a
court for the determination of the lawfulness of his
detention
European Convention on
Human Rights
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why is this important?
“Patients are individuals, no more and no less than any
other individual…they are members of the public,
citizens, people whose needs and interests the
Government exists to serve.” (Professor Anselm
Eldergill The Best is the Enemy of the Good: The
Mental Health Act 2001. Journal of Mental Health Law)
Mental Health law - Ireland
and the ECHR
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Croke v Ireland 1999
Supreme Court found that the Mental Treatment
legislation was sufficient to meet the requirements of
Article 5 in light of the requirements imposed on those
detaining patients not to act arbitrarily, the Habeas
Corpus remedy and the Inspector of Mental Hospitals.
ECtHR found that Article 5 required a proper system of
judicial review of detention on the basis of mental
disorder. The Irish government undertook to secure the
passage of the Mental Health Bill 1999.
Admission and review procedures commenced on 1st
of November 2006
Mental Health Act 2001overview
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Review procedures under 2001 Act fully implemented in
November 2006.
All persons admitted involuntarily to an approved centre are
entitled to legal aid. Only involuntary admissions covered by
legal aid.
Admission order under 2001 Act now triggers a series of rights
for a patient detained
admission order must be referred to the Mental Health
Commission within 24 hours
notice of the making of this order must be given to the patient
concerned
notice is very important as it gives the patient concerned a right
to be admitted to the approved centre as a voluntary patient if
he or she indicates a wish to be so admitted
X v United Kingdom (1981)ECHR held that rights are useless
unless patients are aware that such rights exist
Commission obligations under
S 17
The Commission must as soon as
possible  refer the matter to a tribunal,
 assign a legal representative to
represent the patient concerned
unless he or she proposes to engage
one, and
 direct a report to be conducted by an
independent consultant psychiatrist
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2001 Act positive impact
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impact of the new legislation is significant
Some patients having 1st review in many years
Opportunities for patients to have their views heard
Stricter compliance with statutory safeguards
free legal aid for those patients who are detained
involuntarily means that Article 5 rights are meaningfully
vindicated
appointment of legal representatives led to the discovery
that very many patients were unlawfully detained under
the 1945 Act
Main challenges arising out of
2001 Act, gaps in legislation
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CAPACITY legislation urgently required
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Bournewood gap case
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Wards of court
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“Voluntary” patients
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Treatment issues
The European Court of Human Rights H.L.
v. United Kingdom “Bournewood Gap”
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HL was 48 years of age; he was autistic and
‘profoundly mentally retarded’. He was unable to speak
and his understanding was limited. He was frequently
agitated and had a history of self harm.
On 22 July 1997, HL was at a day centre. He was
agitated, hitting himself on the head and banging his
head against the wall.
He was taken to A&E and from there to the local
psychiatric unit in Bournewood as an informal patient.
His carers were not allowed to visit him
Bournewood Gap
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Article 5 of the European Convention of
Human Rights
“No one shall be deprived of his liberty save
in the following cases and in accordance
with a procedure prescribed by law”.
persons of unsound mind may be detained
lawfully – i.e. in accordance with a
procedure prescribed by law
Winterwerp v The Netherlands (1979) any
such detention should not be arbitrary
Bournewood Gap
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Court considers the key factor in the present case to be
that the health care professionals treating and managing
the applicant exercised complete and effective control
over his care and movements from the moment he
presented acute behavioural problems on 22 July 1997 to
the date he was compulsorily detained on 29 October
1997.’
concrete situation was that the applicant was under
continuous supervision and control and was not free to
leave. Any suggestion to the contrary was, in the Court's
view, fairly described by Lord Steyn as “stretching
credulity to breaking point” and as a “fairy tale”.’
Court considers that the further element of lawfulness,
the aim of avoiding arbitrariness, has not been satisfied.
Bournewood Gap
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In this latter respect, the Court finds striking the lack of any
fixed procedural rules by which the admission and detention
of compliant incapacitated persons is conducted. The
contrast between this dearth of regulation and the extensive
network of safeguards applicable to psychiatric committals
covered by the 1983 Act … is … significant.’
‘In particular and most obviously, the Court notes the lack of
any formalised admission procedures which indicate who
can propose admission, for what reasons and on the basis
of what kind of medical and other assessments and
conclusions. There is no requirement to fix the exact
purpose of admission (e.g. assessment or treatment) and,
consistently, no limits in terms of time, treatment or care
attach to that admission. Nor is there any specific provision
requiring a continuing clinical assessment of the persistence
of a disorder warranting detention.’
Bournewood Gap
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‘As a result of the lack of procedural regulation and
limits, the Court observes that 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: as Lord
Steyn remarked, this left “effective and unqualified
control” in their hands [whilst] the very purpose of
procedural safeguards is to protect individuals against
any “misjudgments and professional lapses”
The ECtHR concluded that it had not been
demonstrated that the applicant had available to him a
procedure which satisfied the requirements of article
5(4) of the Convention and held that there had been
therefore a violation of that provision.
Application of Bournewood
gap case in Ireland
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European Convention on Human Rights Act
2003
Section 2: In interpreting and applying any
statutory provision or rule of law a court shall in
so far as is possible…do so in a manner
compatible with the States obligations under the
convention provisions
Section 4: Judicial notice shall be taken of the
Convention provisions and of any declaration
decision advisory opinion or judgement of the
European Court of Human Rights
EH v St. Vincent’s Hospital & ors.
[2009] 3 IR 774.
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Patient suffering from dementia and mental illness
Ms. H. did not sign the voluntary admission form and the
hospital records indicate that she lacked the “capacity” to
sign a voluntary form “because of her dementia and
mental illness”.
The hospital records note that if Ms. H. were to attempt to
leave the ward she would require to be detained under
s.23 of the Mental Health Act 2001.
The records indicate on 22nd December, 2008 Ms. H. did
indeed try to leave the unit and was found at the doors
leading to Elm Mount upper ward.
The records state that in view of her attempts to leave the
unit, the procedures under sections 23 and 24 of the Act
of 2001 were then invoked.
Ms H was therefore (1) a person deprived of her liberty in
a hospital (2) who lacked capacity to consent to that
deprivation of liberty.”
EH v St. Vincent’s Hospital
& ors. [2009] 3 IR 774.
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It had been submitted by the applicant’s legal team in the High
Court and in the Supreme Court that the word “voluntary” must
be given its ordinary meaning “a meaning which respects the
provisions of the Constitution and a meaning which, having
regard to the State's obligations pursuant to s. 2(1) of the
Human Rights Act 2003, respects the necessity for a freely
given consent to detention by a person who has capacity to give
it.
It was also argued that the court should consider the findings of
the ECtHR in the Bournewood gap case as set out above
EH v St. Vincent’s Hospital & ors.
[2009] 3 IR 774.
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Kearns J.
“The terminology adopted in s.2 of the Act of 2001
ascribes a very particular meaning to the term
“voluntary patient”.
It does not describe such a person as one who freely
and voluntarily gives consent to an admission order.
Instead the express statutory language defines a
“voluntary patient” as a person receiving care and
treatment in an approved centre who is not the subject
of an admission order or a renewal order….
Any interpretation of the term in the Act must be
informed by the overall scheme and paternalistic intent
of the legislation as exemplified in particular by the
provisions of sections 4 and 29 of the Act”
EH v St. Vincent’s Hospital & ors.
[2009] 3 IR 774.
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The Supreme Court, expressed “great difficulty” in
understanding how the decision in H.L. availed the
applicant’s counsel.
Kearns J stated that the case could not possibly bear
on the applicants detention subsequent to December
22nd 2008 and that all of the statutory protections and
procedures which counsel contented were absent from
December 10 2008 to December 22nd 2008 were fully
restored from that time onwards.
Dr. Darius Whelan writes in Mental Health Law and
Practice”, “this glosses over the fact that from
December 10 to 22, those protections were not
available.”
Irish Human Rights
Commission and EH
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The need for legislative reform arising out of the EH decision has
been dealt with very comprehensively by the Irish Human Rights
Commission in its “Policy Paper concerning the definition of a
“voluntary patient” under s.2 of the Mental Health Act 2001”.
This understanding of s.2, where neither capacity nor consent are
relevant factors to determining the status of a patient, with the
result that patients without capacity to consent, such as in the case
of incapacitated compliant patients or Wards of Court, are not
subject to the safeguards of the 2001 Act (in the form of
independent periodic reviews of admission orders), is of concern to
the IHRC insofar as it has implications for the State’s compliance
with its international human rights obligations.”
The policy paper states “The IHRC is concerned about the
definition of a voluntary patient under section 2 of the Mental Health
Act 2001 and the apparent absence of any procedural protections
afforded to incapacitated compliant patients and wards of court
under the Act.”
IHRC and EH
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The IHRC recommends “Any question as to the
person’s capacity to consent or object to admission to
an approved centre needs to be determined under
appropriate mental capacity legislation, rather than by
reference to section 2 of the Mental Health Act 2001in
its current form.
In relation to determining who may be categorised as
an incapacitated compliant patient it is necessary to
have in place clear legal criteria to determine the
capacity of the patient to make decisions in specific
areas including health care.
IHRC and EH
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“Clear criteria would eliminate any possibility for obscurity
arising under the Mental Health Act 2001, as to who
should be considered a voluntary or involuntary patient.”
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“The admission of incapacitated compliant patients and
wards of court should thus be carefully reviewed and the
same or similar safeguards be provided as are presently
applicable to involuntary admissions under the Mental
Health Act 2001”
The practical effect of EH
Voluntary incapacitated clients detained indefinitely without
any statutory safeguards
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Using the ECHR
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Gaps in the legislation – Bournewood gap case
capacity and genuine nature of subsequent voluntary
detentions – capacity of those clients to consent to
treatment
Wards of court are not reviewed under the 2001 Act,
many wards without capacity are de facto detained
without review
limitation on the remit of tribunals
treatment concerns of clients not addressed by 2001 Act
Health Service Executive v MX, 2011 treatment and
capacity case
IHRC and AG joined – court to decide if sufficient
safeguards under 2001 Act taking into account
obligations under ECHR
Criminal Law (Insanity) Act
2006 and ECHR
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Central Mental Hospital – forensic facility, designated
centre
S4 2006 Act “fitness to be tried”
If court decides unfit to be tried, then accused person
(who is in need of inpatient care) is committed to the
CMH until discharged under S13 of 2006 Act.
Section 5 : special verdict to the effect that the
accused person is not guilty by reason of insanity
The court shall then commit that person to a
Designated Centre until an order is made under
section 13
Section 13: Review Board has the power to continue
detention or order a conditional or unconditional
discharge
Criminal Law (Insanity) Act
2006 ECHR
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No discharges being made as conditions of discharge were not
enforceable.
No mechanism in the Act for a recall to the CMH in the event of a
breach of conditions
B -v- Mental Health (Criminal Law) Review Board & Ors). Judgment
delivered 25 July 2008 by Mr. Justice Hanna
Conditions of discharge cannot be enforced.
Client could continue to be detained even though he was not
suffering from a mental disorder and did not require treatment.
Declaration sought, pursuant to section 5 of the European
Convention on Human Rights Act, 2003, that section 13 of the
Criminal Law (Insanity) Act, 2006, insofar as it may require a
person in the circumstances of the applicant to be refused a
conditional discharge and thereby to be deprived of his liberty,
is incompatible with the State’s obligations pursuant to Article 5
of the European Convention on Human Rights and
Fundamental Freedoms, 1950.
Criminal Law (Insanity) Act
2006 and ECHR
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High court held refusal to grant an order for
conditional discharge where patient no longer
required treatment was held not contrary to
ECHR or constitution.
Appeal to the Supreme Court, IHRC joined in
the proceedings
Amending legislation brought in
Criminal Law (Insanity) Bill 2010.
Ministerial order signed on 8th February,
2011.
First conditional discharge granted by the
Review Board on the 24th March, 2011
Thank you
Áine Hynes
St.John Solicitors
November 2011