Transcript The Mental Health Act 2001 in Practice: a Legal

The Mental Health Act 2001 in Practice: a
Legal Representative’s Viewpoint
Áine Hynes
Roger Greene & Sons
Prior to Mental Health Act 2001
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Mental Treatment Acts 1945 to 1961
no right to review
proposed legislation: The Health (Mental
Services) Act 1981
focus on rights of patients
review tribunals
act never came into operation
Judicial commentary: the 1945 Act
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R.T. v. Director of Central Mental Hospital [1995]
(Costello J)
“The best is the enemy of the good. The 1981
reforms which would have remedied the defects
were not brought into force because more thorough
reforms were being considered (para. 16.13 of
Green Paper). The prolonged search for excellence
extending now for over fourteen years has had most
serious consequences for the applicant herein.”
Judicial commentary: the 1945 Act
cont.
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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”
European Convention on Human
Rights
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Article 5
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
Mental Health Act 2001
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Review procedures under 2001 Act fully implemented in
November 2006
one – application to a registered medical practitioner
two – if doctor is satisfied following examination that the person
is suffering from a mental disorder, a recommendation is made
by the doctor that a person should be admitted involuntarily to
an approved centre
three - once a patient is admitted a patient can be detained
against their wishes in a psychiatric hospital up to 24 hours
four - involuntary admission order made by a consultant
psychiatrist within 24 hours of their detention
Admission order triggers a series of
rights for a patient detained
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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
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The Commission must as soon as possible a) refer the matter to a tribunal,
(b) assign a legal representative to represent
the patient concerned unless he or she
proposes to engage one, and
(c) direct a report to be conducted by an
independent consultant psychiatrist
The independent psychiatrist’s role
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examine the patient concerned
interview the consultant psychiatrist responsible
for the care and treatment of the patient,
review the records relating to the patient, in order
to determine whether the patient is suffering from
a mental disorder
report in writing within 14 days on the results of
the examination, interview and review to the
tribunal
to provide a copy of the report to the legal
representative of the patient
Tribunal Hearing
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Section 18 of the 2001 Act - review the detention of
the person concerned and either affirm or revoke the
order
NB - if the provisions of section 9, 10 12, 14, 15
(making the orders) and 16 have not been complied
with the tribunal can nonetheless affirm the order if
the failure to comply with those provisions does not
affect the substance of the order and does not cause
an injustice. [Section 18(1)(a)]
Appeals – Section 19
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can only appeal on the grounds that patient is not
suffering from a mental disorder
inadequate remedy for client
cannot appeal the reasons for the decision
circuit court appeal process – proceedings often
moot
M.D. -v- Clinical Director of St. Brendan's Hospital
Proper record of decision of Tribunal is absolutely
essential if the decisions of this powerful body are to
be subject to proper review.
High Court Challenges: Article 40.4.1
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“No citizen shall be deprived of his personal liberty save in
accordance with law”
40.4.2 Complaint (application) is made by or on behalf of any
person to the High Court alleging a person is being unlawfully
detained
High Court shall forthwith enquire into the said complaint
may order the detainor to produce the body before the High
Court
detainor certifies in writing the grounds of his detention,
detainor has opportunity of justifying the detention
Court shall order the release of such person from such
detention unless satisfied that he is being detained in
accordance with the law.
Best interests of the person
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Section 4
Best interests includes best legal interests
(W.Q. V Mental Health Commission) O’Neill J.
“In my opinion the best interests of a person
suffering from a mental disorder are secured by a
faithful observance of and compliance with the
statutory safeguards put into the 2001 Act, by the
Oireachtas”
Best interests cont.
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J B -v- Director of Central Mental Hospital & Anor.
jurisdiction of the Superior Courts to ensure that rights of
patients are protected and safeguarded by way of enquiry
under Article 40.4
“one could not disagree with the views of O’Neill J. in W.Q. that
the best interests of a person suffering from a mental disorder
are secured by a faithful observance of and compliance with the
statutory safeguards put into the Act of 2001 by the Oireachtas”
only those failures of compliance which are of an insubstantial
nature and do not cause injustice can be excused by a Tribunal
Renewal orders and ongoing review
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renewal orders can be made extending the period of
time a person is detained
first renewal order lasts for three months, with a
review of that order within 21 days
second renewal order lasts for 6 months again with a
review within 21 days
finally orders are made for 12 months, on a rolling
basis
each time that an order is made; there must be a
review within 21 days
Challenges in practice and
conclusions
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appeals process
revocations prior to hearing (section 28 revocation –
to be used where client is well)
genuine nature of subsequent voluntary detentions –
capacity of those clients to consent to treatment
role of the solicitor in representing those voluntary
patients - not part of the legal aid scheme
clients who are unable to give instructions – access
to medical notes
Challenges in practice and
conclusions
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impact of the new legislation is hugely significant
more legislative changes are required
Implementation of the 2001 Act has led to the discovery that very
many patients were unlawfully detained under the 1945 Act
constitution enshrines the right to be detained in accordance with the
law
free legal aid for those patients who are detained involuntarily means
that those rights are meaningfully vindicated
most vulnerable members of our society are represented and have the
lawfulness of their detention reviewed by an independent body
Psychiatrists protecting the best medical interests, lawyers protecting
the best legal interests and the MHC promoting and fostering the
maintenance of high standards and good practices working together to
protect the interests of persons detained.
Thank you
Áine Hynes
Roger Greene & Sons