The Mental Health Act 2001 in Practice: a Legal Representative’s Viewpoint

1. The Mental Health Act 2001 in Practice: a Legal Representative’s Viewpoint Áine Hynes Roger Greene & Sons

2. Prior to Mental Health Act 2001 • 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

3. Judicial commentary: the 1945 Act • 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.”

4. Judicial commentary: the 1945 Act cont. • 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”

5. European Convention on Human Rights • 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

6. Mental Health Act 2001 • 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

7. Admission order 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

8. Commission obligations under S 17 • 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

9. The independent psychiatrist’s role • 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

10. Tribunal Hearing • 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)]

11. Appeals – Section 19 • 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.

12. High Court Challenges: Article 40.4.1 • “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.

13. Best interests of the person • 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”

14. Best interests cont. • 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

15. Renewal orders and ongoing review • 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

16. Challenges in practice and conclusions • 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

17. Challenges in practice and conclusions • 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.

18. Thank you Áine Hynes Roger Greene & Sons