A general overview of the Mental Health Act 2001, which applies in Ireland.

1. Mental Health Act 2001:
General Outline
Darius Whelan, Faculty of Law, UCC
Law Society Diploma in Civil Litigation, March 2011

2. Mental Health Act 2001:
Preliminary Comments
□ Generally referring to detained patients
□ “Patient” in Act means person admitted under the Act, i.e.
detained involuntarily (s.2 & s.14(1)(a))
□ Generally referring to adults rather than children
□ “child” = under 18 in this Act
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4. □ Key principles in s.4 of Act:
□ Best interests of the person are to be the principal
consideration with due regard being given to the interests
of other persons who may be at risk of serious harm.
□ 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
□ Due regard must be given to need to respect person’s right
to dignity, bodily integrity, privacy and autonomy.
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5. The Criteria for Detention
□ “Mental Disorder” (s.3):
□ Mental Illness, Severe Dementia or Significant Intellectual
Disability where
a) Because of the illness / dementia / ID there is a serious
likelihood of harm to self/ others, or
b) (i) Because of the severity of the illness / dementia / ID, the
person’s judgement is impaired; failure to admit him/her
likely to lead to serious deterioration of condition or prevent
appropriate treatment and
(ii) detention would be likely to materially benefit / alleviate
person’s condition
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6. □ Exclusions (s.8):
□ Person may not be involuntarily detained solely on grounds
of
□ Personality disorder
□ Social deviance
□ Drug / intoxicant addiction
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7. Other Definitions
□ “mental illness” means a state of mind of a person
which affects the person's thinking, perceiving,
emotion or judgement and which seriously impairs
the mental function of the person to the extent that
he or she requires care or medical treatment in his
or her own interest or in the interest of other persons
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8. □ ''severe dementia'' means a deterioration of the
brain of a person which significantly impairs the
intellectual function of the person thereby affecting
thought, comprehension and memory and which
includes severe psychiatric or behavioural
symptoms such as physical aggression
□ ''significant intellectual disability'' means a state of
arrested or incomplete development of mind of a
person which includes significant impairment of
intelligence and social functioning and abnormally
aggressive or seriously irresponsible conduct on the
part of the person
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9. □ M.R. v Byrne and Flynn (O’Neill J., 2007)
□ S.3(1)(a) – serious likelihood of immediate and serious harm
to self/ others – envisages a high level of probability
□ “Harm” – physical and mental injury are included
□ “Serious” – Infliction of minor physical injury to person
themselves could be regarded as not serious
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10. □ “Serious likelihood” in s.3(1)(a) :
□ “In my view what the Act envisages here is a
standard of proof of a high level of probability.
□ This is beyond the normal standard of proof in civil
actions of ‘more likely to be true’, but it falls short of
the standard of proof that is required in a criminal
prosecution namely beyond a reasonable doubt
and what is required is proof to a standard of a
high level of likelihood as distinct from simply being
more likely to be true.” [O’Neill J., M.R.]
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11. Detention by Garda
□ S.12
□ Harm criterion only
□ S.C. v Clinical Director, St Brigid’s (2009)
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12. Procedure for Involuntary Admission

13. □ Focus will be on adults (over 18) being detained
under ss.9-14
Recommendation Admission
Application
Order
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14. Main Time Limits
Application
Examination and Recommendation by Doctor
24hrs 7 days
Detention by cons. / dr. / nurse
24hrs
21 days Admission Order
3 mths 24hrs
1st Renewal
6 mths Renewal 2 Psych. 2 tasks
12 mths Renewal 3 MHCom
Subseq.
Renewals
14 days
of direction
from MHC
2nd Psych.
report

15. Who may apply?
□ Spouse / civil partner / cohabitee [not separated]
□ Parent/ grandparent / sibling/ uncle/ aunt/ niece/
nephew / child
□ Garda
□ Authorised person [inserted 2009]
□ HSE authorised officer
□ Any other person
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16. Application / Recommendation/ Admission
□ Applicant must have observed person not more than 48 hours
before application s.9(4).
□ Doctor to whom application for admission is made must
examine patient within 24 hours of receipt of application
s.10(2)
□ [Doctor must not be member of staff of approved centre to
which person is to be admitted; must not be spouse or relative;
must not have interest in payments for person’s care at approved
centre.]
□ Doctor’s recommendation remains in force for 7 days. s.10(5)
□ Admission order by consultant psychiatrist on staff of
approved centre must be made within 24 hours of detention.
s.14(2)
□ (This 24 hour detention can be by consultant, doctor or nurse)
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17. Admission and Renewal Orders
□ Within 24 hours of admission order (or renewal order) – s.16(1):
□ Psychiatrist must:
□ Send copy of order to Mental Health Commission
□ Give information notice in writing to patient (7 items on list)
□ Admission order remains in force for 21 days.
□ First renewal order may be made within 21 days for a period
not exceeding 3 months. s. 15(1) and (2)
□ (Psychiatrist must have examined person within previous week.)
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18. □ Next renewal order may be for a period not exceeding 6
months from expiry of previous renewal. s.15(3)
□ (Psychiatrist must have examined person within previous week.)
□ Subsequent renewal orders may be for periods not exceeding
12 months each. s.15(3)
□ (Psychiatrist must have examined person within previous week.)
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19. S.M. v Mental Health Commission
(2008)
□ McMahon J. – Judicial Review case re St. Patrick’s Hospital,
Dublin
□ Renewal order which does not specify a particular period of
time, but merely provides that it is an order for a period "not
exceeding 12 months" is not an order permitted under the
legislation and is void for uncertainty
□ Ordered release but with stay of four weeks
□ Statutory forms have now been revised
□ Mental Health Act 2008 – emergency legislation
□ Irish Times - http://tinyurl.com/irtimes333
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20. 20

21. □ Once Mental Health Commission receives admission or
renewal order, it must (s.17):
□ Refer matter to a tribunal
□ Assign a legal representative to the patient
□ Direct a second opinion psychiatrist to examine patient, interview
psychiatrist and review records.
□ Second opinion psychiatrist must report within 14 days of the
direction (s.17)
□ Second opinion psychiatrist must send report to Mental Health
Commission and copy to patient’s lawyer.
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22. □ Mental Health Tribunal must decide to confirm or revoke order
within 21 days of making of order s.18(1) and (2)
□ Extensions (of 21 day period for MH Trib decision):
□ First extension - 14 days of tribunal’s own motion or at request of
patient.
□ Second extension of 14 days only on application of patient.
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23. Detention of Children
□ Detention of children (under age 18) s.25
□ Application only by HSE
□ Once District Court has psychiatric report it can detain
child for 21 days s.25(6)
□ Renewal by court – max. 3 months s.25(9).
□ Second and subsequent renewal – 6 months – s.25(10).
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24. Re-grading of Voluntary Patient as
Involuntary Patient
□ Two stages:
□ Temporary Detention under s.23(1)
□ Certificate and Admission Order (s.24)
□ Patient must indicate intention to leave
□ Psych. / dr. / nurse may detain for 24 hours
□ 3 days re children due to need for D.C. Hearing
□ Then psych. may detain under Act
□ Q. v St. Patrick’s Hospital, O’Higgins J., ex tempore,
21 Dec. 2006
□ Confirmed two stages needed
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25. De Facto Detention
□ Voluntary Patient who
□ does not have capacity to consent to admission, and/or
□ wishes to leave centre but fears re-grading as involuntary
patient
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26. “Bournewood Gap”
□ R v Community and Mental Health NHS Trust, ex
parte L. (1998)
□ House of Lords: De Facto Detention justified by common
law doctrine of necessity
□ H.L. v United Kingdom (2004)
□ European Court of HR: Detention of this kind breaches
Article 5
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27. E.H. v Clinical Director St. Vincent’s (2009)
□ Detained Aug. 2008
□ Renewal order revoked Dec. 10 2008 – wrong date
on order
□ treated as voluntary patient from Dec. 10 to 22.
□ Dec. 22 – S.23 and 24 re-grading invoked.
□ High Court – O’Neill J. – detention was lawful.
□ Very significant that O’Neill J. did not state that the
Act requires that a “voluntary” patient be capable
of consenting to their admission.
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28. □ O’Neill J. did not refer to J.H. v Russell, where it was
held that if the relevant period where a patient
was, apparently, a voluntary patient, was not in
substance properly voluntary, this renders his/her
detention unlawful.
□ While J.H. v Russell concerned the 1945 Act, it would
be have been useful to compare the meaning of
“voluntary patient” in the 1945 Act with its meaning
in the 2001 Act.
□ H.L. v U.K. could have been discussed in greater
detail, for example the requirement for periodic
review in Article 5(4) as applied in that case.
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29. Supreme Court – Kearns J. –
□ Mere technical defects should not give rise to a rush to court
□ The definition of voluntary patient cannot be given a
meaning which is contra legem.
□ Even if her status was questionable on Dec. 22, the current
certification was based on a renewal order made on April 9,
2009, against which no challenge had been brought.
□ He had difficulty in seeing the relevance of H.L. v U.K.
□ Also, no domino effect applies and the case was a moot.
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30. □ As Kearns J. states, in H.L. v U.K., as a result of the lack of
procedural regulation and limits, 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.
□ The European Court said the very purpose of procedural
safeguards is to protect individuals against any
misjudgements and professional lapses and concluded that
Article 5(4) had been breached.
□ The Supreme Court’s response to this in E.H. is to state that H.L.
could not possibly bear on the applicant’s detention
subsequent to December 22, 2008.
□ However, this glosses over the fact that from December 10 to
22, those protections were not available.
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31. Mental Health Tribunals
Consultant Chairperson: Another
Psychiatrist Barrister / Solicitor Person
□ Chairperson must have 7 yrs practice immediately
before appointment
□ Psychiatrist may be retired psychiatrist employed by
Health Board or Approved Centre provided retired
within 7 years. s.48(2)
□ Other person must not be in previous categories or be a
doctor or nurse
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32. Scope of Review
□ Tribunal has limited powers – only two main choices:
confirm or revoke order
□ To affirm the order, s.18 states that the MHT must be
satisfied that
□ the patient is “suffering from a mental disorder” and that
□ 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”
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33. □ Burden of proof cannot be placed on patient
□ If the patient is discharged before the MHT hearing,
he/she may still request that the MHT review be
continued
□ The patient may appeal to the Circuit Court against
the decision to affirm an admission or renewal order
within 14 days of receiving notice of a MHT decision
□ Burden of proof in appeals: T.S. v Mental Health Tribunal
(2008)
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34. □ Extensions of Time for MHT Decisions
□ A renewal order is not extended by an extension of
this type
□ J.B. v Director of Central Mental Hospital (No.3) (2007)
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35. The Legal Representative
□ Patient normally uses services of legal
representative assigned by Commission
□ Important protection for patient’s rights
□ Legal Aid Scheme + Terms and Conditions
□ If patient does not have capacity to consent to
disclosure of medical records, records may be
disclosed to legal representative
□ E.J.W. v Watters (2008)
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36. □ Leave of High Court
□ S.73
□ Leave of the High Court is required before civil
proceedings are brought in respect of an act purporting to
have been done in pursuance of the Act
□ Section is now of doubtful constitutionality following a
ruling concerning a similar section (with different wording)
in the 1945 Act – Blehein v Minister for Health & Children
(2008)
□ Leave not granted – M.P. v HSE (2010)
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37. Further Reading
□ See list of further reading at end of lecture notes
□ Follow on Twitter - @dariuswirl
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