Mental Health Tribunals and the Best Interests Principle

1. Mental Health Tribunals and the Best Interests Principle Darius Whelan Promoting Social Inclusion in Mental Health Conference June 2008

2. Outline • The Best Interests Principle • Review of Role of Mental Health Tribunals • High Court Cases on Tribunals – selected themes

3. The Best Interests Principle

4. Paternalism: • Dictionary: A policy or practice of treating or governing people in a fatherly manner, especially by providing for their needs without giving them rights or responsibilities. • In legal sense has positive and negative aspects

5. Paternalism – positive aspects • Example: Law requires wearing of seat belts • Paternalism – negative aspects • May imply adults being treated as children • “Superior” people decide what “inferior” people need / “Nanny state” • Undue interference with autonomy, even where no risk of harm to others • Eileen King, ‘Paternalism and the Law: Taking a Closer Look’ (2004)

6. Re Philip Clarke (1949) • “The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally.” (O’Byrne J.)

7. Croke v Smith (1995 / 1996) • Budd J., High Court: • “The certainties implicit in the judgment in Clarke’s case in 1949 may be diluted by now” • Overturned in Supreme Court

8. Gooden v St. Otteran’s Hospital (2001) • “This passage [in Re Philip Clarke] has been generally accepted as expressing the nature and purpose of the Act of 1945. The Act provides for the detention of persons who are mentally ill, both for their own sake and for the sake of the common good.” (McGuinness J.)

9. Best Interests S.4 Mental Health Act 2001: • “In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal considerationwith due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.” • “Due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.”

10. Also in s.4: • Where it is proposed to make recommendation or an admission order in respect of person, or to administer treatment to person, person must be • notified of proposal and • entitled to make representations

11. Best interests = “Patient First” ? • No definition of best interests • Not in original Bill in 1999 • Contrast Mental Capacity Act 2005 (England and Wales) – list of factors to consider, e.g. • person's past and present wishes and feelings • beliefs and values that would be likely to influence his/her decision if he/she had capacity, and • other factors he/she would be likely to consider if he/she were able to do so.

12. English case-law: • “Best interests” involves balance sheet approach – balance factors of benefit to patient against those which do not benefit patient (Re A., 2000) • Respect patient’s right to self-determination as much as possible (Bland, 1993) • Best interests are not limited to medical best interests (Re M.B., 1997) • E.g. include also financial considerations, religious views of patient

13. Some references to best interests in Irish cases, e.g. • In Re A Ward of Court (1995)

14. 2001 Act radically reformed mental health law • Outmoded thinking in 1945 Act was supposed to be superseded • High levels of detention under 1945 Act to be reduced • Tighter criteria for detention • Patients’ rights / autonomy emphasised • Best Interests principle intended to reflect new approach

15. ‘Best interests’ principle particularly important as regards decision whether to detain • S. 3 – Detention criteria include • Serious likelihood of person causing immediate and serious harm to self or others OR • Impaired judgement so that failure to admit would be likely to lead to serious deterioration or prevent appropriate treatmentAND detention and treatment would be likely to materially benefit or alleviate condition

16. Parens patriae – Duty of state to step in when a person is unable to care or provide for themselves • Some service users object to this category • UN’s MI Principles include this ground (MI Principle 16) • Police Power – Protecting citizens from harm (“harm criterion”) • Person with mental disorder may harm others • Person may harm himself/herself

17. “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.” [O’Neill J., W.Q. v Mental Health Commission] • W.Q. approved by McMenamin J. in J.B. (No.2)

18. “s. 4 of the Act … in my opinion gives statutory expression to the kind of paternalistic approach mandated in the case of Philip Clarke and approved in the case of Croke v. Smith and also … Gooden v. St. Otteran's Hospital.” [O’Neill J., M.R. v Byrne & Flynn] • Difficult to see how this interpretation is justified

19. The protections put in place by the 2001 Act “are detailed and specific and it is of the utmost importance that they be observed to the letter, and that no unnecessary shortcuts creep into the way in which the Act is operated.” • “It cannot have been the intention of the Oireachtas when it enacted this piece of legislation that its provisions would have to be acted upon in such a literal way that the best interests of the patient would take second place to those best interests.” • Peart J., P.McG. -v- Medical Director of the Mater Hospital

20. Section 4 “highlights the patient-centred focus of the Act’s purpose. The Act proceeds to set forth a scheme whereby at all stages the constitutional rights of the patient are to be respected and protected. …The scheme in this regard has been appropriately described as paternalistic in nature. Its purpose is to protect the rights of the patient as well as to care for the patient.” • [Peart J., J.H. v Lawlor]

21. Review of Role of Mental Health Tribunals

22. Mental Health Commission www.mhcirl.ie

24. Mental Health Tribunals (MHTs) Consultant Psychiatrist Chairperson:Barrister / Solicitor AnotherPerson

25. 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

26. Psychiatrists involved: • Responsible Consultant Psychiatrist (RCP) at approved centre • Second opinion psychiatrist • Psychiatrist member of Tribunal • Second opinion psychiatrist tends to agree with approved centre psychiatrist

27. Statistics • 2,248 MHT hearings in 2007 • 256 (11%) revoked at hearing • “Revoked” means MHT ordered patient’s release • 3,422 admissions / renewals/ regradings • 1,444 (42%) revocations before hearing by Responsible Consultant Psychiatrist

30. 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 • Legal representative has duty to challenge legal basis for detention (“raise technicalities”)

31. Timing • MHT hearing and decision within 21 days of making of order • As regards first review, this may not be “speedy” enough to satisfy ECHR • L.R. v France (2002) – 24 days too long • Views of Dept of H & C, 2007: • Tribunal hearings should take place at earliest possible opportunity • 14-day time period for second consultant’s report should be reduced

32. Renewal Orders • First renewal can last up to three months • Second renewal up to six months • Third and subsequent renewals up to 12 months • Statutory form does not easily permit renewals for lesser periods (Form 7) • No right to apply for MHT hearing between renewals

33. 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)

34. Pre-MHT Hearing • MHT Chair has no powers prior to hearing, e.g. to call a witness (contrast England and Wales – rule 5 MHRT Rules 1983)

35. Nature of MHT Hearing • Questions are asked by the tribunal on the one hand, and by the patient or his/her lawyer on the other • Patient appears to be only party

36. Second opinion psychiatrist does not give evidence • Possible fair procedures issues

37. Procedure of MHT determined by tribunal itself • Draft Procedural Guidelines from Mental Health Commission

38. Tribunal must confirm or revoke admission or renewal order • 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.” • If revoke order, must direct that patient be discharged from approved centre

39. No statutory power to • make a conditional discharge, or • defer a discharge

40. MHT may not consider questions of compliance with procedures not listed in its powers • Cannot consider compliance with 1945 Act • E.g. cannot consider compliance with • S.13 2001 – removal to approved centre • S.17 2001 – referral of admission order to MHT • S.22 2001 – Transfer of patient to hospital

41. Burden of Proof • Act does not deal specifically with question of burden of proof • Act states MHT must be satisfied of certain matters if it is to affirm order

42. English legislation required patients seeking discharge to demonstrate to the tribunal that they did not meet the standard of confinement(s.72(1)(b) MHA ’83) • English courts held s.72(1)(b) was incompatible with the European Convention • R v MHRT N & E London ex p H(2001)

43. Hearings in private • MHT hearings are held in private • A v Refugee Appeals Tribunal (2006) • Arguably selected previous decisions of Mental Health Tribunals need to be made available

44. Media Reports • Family 'kept in the dark' over sister's condition – S. Tribune, 4 Nov. 2007 • Status is revoked before tribunal sits – Irish Medical Times,5 Oct. 2007 • 'Teething problems' behind early releases - Irish Medical Times,27 Jul. 2007 • Mental health reviews lawyers ‘adversarial’ – claim – Irish Medical News, 9 Oct. 2007

45. Status of doctors in mental health tribunals quizzed – Irish Medical Times, 17 Aug. 2007 • Major problems emerging with mental health tribunals – IMO – Irish Medical News, 1 Oct. 2007 • Tribunals hamper treatment of mentally ill – Irish Examiner, 13 Feb. 2007 • Litany of failures dog Mental Health Act – Irish Medical Times, 9 Feb. 2007

46. Application under Article 40 • Habeas Corpus application • Application to High Court under Art.40 to determine whether patient is being detained in accordance with law • (Note English position: habeas corpus remedy of last resort; habeas corpus rarely used in mental health cases)

47. Judicial Review of MHT Decisions • Grounds for review may possibly include the following: • MHT acted ultra vires its statutory powers • MHT breached rule against bias (nemo iudex in causa sua) • MHT breached principle of audi alteram partem • MHT breached formal or procedural requirements • MHT failed to give adequate reasons for its decision

48. Appeals • Patient may ‘appeal’ to Circuit Court against decision to affirm an order within 14 days of receipt of notice of Tribunal decision. s.19. • 39 appeals from 1 Nov. 2006 to end 2007 • Very limited ‘appeal’: Only on grounds that patient is not suffering from mental disorder • Burden of proof on patient • Unclear whether this complies with ECHR • R v MHRT, N. & E. London, ex parte H. (2001) • Is an appeal stage different from first instance stage? • Delcourt v Belgium (1970) – Appeal courts should comply with Art. 6

49. Themes from Habeas Corpus Cases

50. Selected themes only; with emphasis on role of Mental Health Tribunals