Recent Mental Health Case-Law and Update on Capacity Legislation Study Day in Psychiatry Limerick December 2017

1. Recent Mental Health Case-Law
and Update on Capacity
Legislation
Darius Whelan, School of Law
Study Day in Psychiatry, Limerick, December 2017

2. A. Cases 2015-2017:
– 12-month renewal orders
– Pregnant child
– GP Recommendation
– Defect in Admission Order
B. Convention on Rights of Persons
with Disabilities (CRPD)
C. Report of Expert Group on Review of
Mental Health Act
D. Deprivation of Liberty Safeguards
E. Update on Capacity Legislation
2
Summary

3. A.B. v CD of St Loman’s Hospital [2017] IEHC 360
• 12-month renewal order for man with intellectual
disability (unsuitable placement in psychiatric
ward)
• His legal team accepted he had a mental disorder
within the meaning of the Mental Health Act 2001
• He argued lack of ability to apply for review for 12
months breached the Constitution and the
European Convention on Human Rights
• Binchy J. – he did not have locus standi on the
constitutional point (as tribunal would simply
affirm)
• On the ECHR point, Binchy J. issued a declaration
of incompatibility – in this respect, the MHA2001 is
incompatible with the ECHR
• This is only the third such declaration in 15 years.
• The Act has not been amended
3
12-month
renewal
orders

4. Health Service Executive v B.S. [2017] IEDC
18
• Child was pregnant; had been detained under Mental
Health Act 2001 as she was suicidal
• HSE had applied for order to District Court and it was
granted (detention for 14 days)
• Six days later, the case came before Horgan P.,
President of the District Court
• Mother and guardian ad litem were applying for girl’s
release (discharge of the first order)
• Horgan P. granted release
• Medical reports showed she did not have a mental
disorder within the meaning of MHA2001
• Agitated state – shouting and screaming; throwing
items around bedroom
• Possible Post Traumatic Stress disorder
• Now more settled
• HSE agreed the girl should be discharged
4
Pregnant
child
Photo By Dennis Jarvis Macedonia-02845, CC BY-SA 2.0,
https://commons.wikimedia.org/w/index.php?curid=32681787

5. 5

6. L.B. v CD Naas General Hospital (2015)
• Applicant made various arguments, all
rejected:
– GP “pre-judged” issue
– Short interaction with person at Garda
station
– GP had fear of person, which would
disqualify her from making
recommendation
6
GP
Recommendation
Photo from hselibrary.ie

7. M. v CD, Dept of Psychiatry, University Hospital
Limerick [2016] IEHC 25
• Error in an admission order where wrong year was
used. Admission order was dated 16 December
2016 when it should have been dated 16 Dec. 2015
• A renewal order had been made on 4 January
2016.
• Barrett J. refused to order applicant’s release.
• The error had no 'domino effect' which tainted the
validity or legality of a subsequent renewal order
which had been correctly dated.
• “The renewal order of 4th January, 2016, is the
order on which Mr M’s continuing detention is
grounded at this time.
• … The currently extant renewal order is not
affected by any dating error that presented in the
now-defunct, initial admission order.”
7
Defect in
admission
order
Photo – Limerick Post

8. • F. v Mental Health Tribunal [2016] IEHC 623 -
An appeal to the Circuit Court becomes moot
where the admission order is supplanted by a
renewal order
• HSE v K.W. (2015) – Child had reached age of
majority – detained in centre in Ireland –
inherent jurisdiction of court
• Governor of X Prison v P.McD. [2015] IEHC 259
– Baker J. - Prisoner with capacity could
refuse food (hunger strike)
• A.B. v C.D. [2016] IEHC 541 – Humphreys J. -
State can override prisoner’s refusal of
treatment.
• A number of ward of court cases in media
8
Some other
Case-Law

9. 9
www.mhcirl.ie/for_H_Prof/Mental_Health_Tribunals/

10. I. Georgieva, E. Bainbridge, D. McGuinness, M.
Keys, L. Brosnan, H. Felzmann, J. Maguire, K.
Murphy, A. Higgins, C. McDonald and B.
Hallahan
‘Opinions of key stakeholders concerning
involuntary admission of patients under the
Mental Health Act 2001’
(2017) 34 Irish Journal of Psychological Medicine
223
10
Recent
Study
SU = Service User
FM = Family Member
TM = Tribunal Member

11. 11

12. B. UN Convention on Rights of Persons
with Disabilities (2006) - CRPD
0Paradigm shift: away from medical model to
social model
0Emphasis on will and preferences of person
and assisted decision-making
0Equality for people with disabilities
0No deprivation of liberty based on disability
12 12

13. Art.14 – Existence of a disability shall in no case justify a
deprivation of liberty
0 Office of High Commissioner for Human Rights: Grounds for
detention must be de-linked from disability
0 When UK ratified Convention, it did not change its mental
health legislation
0 ECtHR has referred to CRPD as basis for existence of
European and universal consensus on need to protect
persons with disabilities from discriminatory treatment
0 E.g. Glor v Switzerland (2009)
0 Affected reasoning in M.X. v HSE (No.2)
0 How will conflict between art.5 ECHR and art.14 CRPD be
resolved?
13

14. C. Report of the Expert Group on the Review of the Mental
Health Act 2001 (2015)
14
14

15. 0 Rights based approach should be adopted in new
legislation
0 Best interests to be replaced by Guiding Principles:
0 Enjoyment of highest attainable standard of mental
health
0 Autonomy and self determination
0 Dignity
0 Bodily integrity
0 Least restrictive care
15

16. 0 New criteria for detention –
0 Suffering from mental illness which makes it necessary
to receive treatment in an approved centre and
0 It is immediately necessary for protection of person’s
life, for protection from serious + imminent threat to
person’s health or for protection of other persons and
0 Reception, detention and treatment likely to materially
benefit the person’s condition
0 If on admission it appears the person may lack
capacity, there must be a formal capacity assessment
within 24 hours
0 Voluntary patient must have capacity to consent to
admission
16

17. 0 Admission
0 Authorised Officer (AO) will make all applications
0Family/carer may request second AO
0 Admission must be certified by Consultant Psychiatrist
after examination of the patient and following
consultation with at least one other Mental Health
Professional (MHP) of a different discipline that is
and/or will be involved in the treatment of the person in
the approved centre.
0 If person may lack capacity, there must be a formal
capacity assessment within 24 hours
17

18. 0 If person requires support to make the decision re
voluntary admission, that support must be provided
0 If person does not have capacity, may be admitted
involuntarily
0 “voluntary” patient is person who has capacity to
decide regarding admission and gives informed
consent to admission
0 Intermediate patient – do not have capacity to consent
to admission but do not fulfil criteria for detention –
will have reviews by Review Board
18

19. 0 Renewal – consult with Mental Health Professional
(MHP) of different discipline
0 Third renewal max. 6 months (down from 12 months)
0 Re-grading from voluntary to involuntary
0 No need for person to indicate wish to leave
0 AO will attend approved centre
19

20. 0 Administration of medicine:
0 3 months reduced to 21 days
0 Consult MHP of different discipline
0 Further reviews every 3 months (earlier on request)
0 ECT
0 ECT may proceed if decision-making representative
(DMR) gives consent
0 Otherwise, MHRB must approve ECT
20

21. 0 Tribunals renamed as Mental Health Review Boards
(MHRBs)
0 MHRBs will have authority to establish if there is an
individual care plan in place, that it is compliant with
the law, that views of patient and MD team were
sought
0 First review within 14 days
0 Psychosocial report (by person from the approved
centre) as well as s.17 report
0 In compiling s.17 report, CP must consult with
another MHP of a different discipline
21

22. Mental Health (Amendment) Bill 2017
0 Short Fianna Fáil Bill – proposes to implement some
of changes in expert group report, e.g. change in
definition of ‘voluntary patient’
0 Government does not oppose the Bill
0 However, if passed, will not be commenced until
Capacity legislation fully commenced
22

23. D. Deprivation of Liberty
Safeguards
23

24. 24

25. 25

26. E. Update on Capacity
Legislation
26

27. Assisted Decision-Making (Capacity)
Act 2015
0 Passed December 2015
0 Most of the Act has not been commenced, and will
take a number of years to commence
27

28. 0 Capacity means decision-making
capacity
0 Personal welfare or financial
issues
0 Operate bank account, spend
money, decide where to live, make
medical decision
0 Capacity is to be construed
functionally – ability to understand
nature and consequences of decision at
time decision is made
28

29. 0 Person lacks capacity if unable to
• Understand info relevant to decision
• Retain that information
• Use/ weigh that information
• Communicate his/her decision, perhaps with assistance
or through a third party
0 Act recognises that sometimes person may only be
able to retain info for short period only
29

30. 0 Presumption of capacity unless contrary
shown
0 All practicable steps must be taken to help
person to make decision
0 Making an unwise decision does not make
person unable to make decision
0 Interventions should only be made where
necessary
0 Interventions must minimise restrictions
and respect dignity, bodily integrity, privacy
and autonomy
0 Intervener (e.g. person helping with
decision) shall facilitate person to
participate
… Cont’d >
Guiding
Principles
30

31. Intervener shall
0 give effect to person’s past and present will and
preferences
0 take into account person’s beliefs and values
0 consider views of any person named by person
0 consider views of decision-making assistant, co-
decision-maker, decision-making rep. or attorney
Intervener may consider views of carers; people with
bona fide interest in person’s welfare; healthcare
professionals
31

32. Decision-making assistant (DMA)
• Person may appoint a DMA to assist them in making decisions
re personal welfare or property and affairs or both
• Person must consider their capacity is in question or may
shortly be in question
• DMA can assist person in obtaining info; explain info; ascertain
will and preferences of appointer; ensure appointer’s decisions
are implemented
• Notify office of Director of Decision Support Service
32
Photo by Joshua Earle from Unsplash CC0

33. Co-Decision Maker (CDM)
• Person appoints CDM to jointly make decisions with them
• CDM must be trusted relative/ friend
• Circuit Court approves the co-decision-making agreement
33Picture – CourtsService.ie

34. 0 Circuit Court appoints DMR for person
0 Person lacks capacity to make decisions, even with CDM
0 DMR may make decisions
0 This is substitute decision-making
0 Supervised by office of Decision Support Service
34

35. 0 Extends EPAs to deal with healthcare decisions –
giving or refusing treatment, other than refusing life-
sustaining treatment
0 Attorneys will apply to office of Decision Support
Service for registration of EPA
0 Annual reports to DSS
35

36. 0 Advance Healthcare Directives
0 An advance expression made by the person of his/her
will and preferences concerning treatment decisions
that may if he/she subsequently lacks capacity
0 Must be signed and witnessed
0 Also signed by designated healthcare representative, if
one is named
0[e.g. friend or relative]
0 AHD shall be complied with unless at the time it is
proposed to treat maker of AHD he/she is involuntarily
detained under Mental Health Act 2001
0 General law on assisted suicide still applies
36

37. 37

38. 0 Decision Support Service –
0 http://www.mhcirl.ie/DSS/
0 HSE page on ADM (Capacity) Act –
0 http://www.hse.ie/eng/about/Who/QID/Other-
Quality-Improvement-
Programmes/assisteddecisionmaking/
0 Refers to development of Codes of Practice by
National Disability Authority
0 Dept of Justice and Equality - €3m allocated to DSS in
2018
0 http://www.justice.ie/en/JELR/Pages/PR17000324
38

39. d.whelan@ucc.ie