Mental Health Law in Ireland – using the ECHR

1. Mental Health Law in Ireland – using the ECHR Áine Hynes St. John Solicitors

2. Mental Health law: Before November 2006 • 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.

3. Why was the law changed? European Convention on Human Rights • 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

4. European Convention on Human Rights • 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 EldergillThe Best is the Enemy of the Good: The Mental Health Act 2001. Journal of Mental Health Law)

6. Mental Health law - Ireland and the ECHR • 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

7. Mental Health Act 2001- overview • 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

8. 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

9. 2001 Act positive impact • 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

10. Main challenges arising out of 2001 Act, gaps in legislation • CAPACITY legislation urgently required • Bournewood gap case • Wards of court • “Voluntary” patients • Treatment issues

11. The European Court of Human Rights H.L. v. United Kingdom “Bournewood Gap” • 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

12. Bournewood Gap • 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

13. Bournewood Gap • 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.

14. Bournewood Gap • 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.’

15. Bournewood Gap • ‘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.

16. Application of Bournewood gap case in Ireland • 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

17. EH v St. Vincent’s Hospital & ors. [2009] 3 IR 774. • 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.” • .

18. EH v St. Vincent’s Hospital & ors. [2009] 3 IR 774. • 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

19. EH v St. Vincent’s Hospital & ors. [2009] 3 IR 774. • 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”

20. EH v St. Vincent’s Hospital & ors. [2009] 3 IR 774. • 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.”

21. Irish Human Rights Commission and EH • 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.” 

22. IHRC and EH • 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.

23. IHRC and EH • “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.” • “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

24. Using the ECHR • 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

25. Criminal Law (Insanity) Act 2006 and ECHR • 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

26. Criminal Law (Insanity) Act 2006 ECHR • 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.

27. Criminal Law (Insanity) Act 2006 and ECHR • 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

28. Thank you Áine Hynes St.John Solicitors November 2011