M e n t a l H e a l t h L a w Re f o r m : N e w Pe r s p e c t i v e s a n d C h a l l e n g e s

C e n t r e f o r D i s a b i l i t y , L a w a n d Po l i c y , N a t i o n a l U n i v e r s i t y o f I r e l a n d , G a l w a y

J u n e 2 3 , 2 0 1 2 D r M a r y D o n n e l l y ,L a w Fa c u l t y , U n i v e r s i t y C o l l e g e C o r k

FALLING THROUGH THE GAPS?:

FORMULATING REFORM IN A DUAL-

MODEL SYSTEM

1992: Paper on Mental Health 1999: White Paper: A New Mental Health Act 2001: Enactment of Mental Health Act April 2002: Commencement of Part of MHA and Establishment of

Mental Health Commission 2003: Law Reform Commission Consultation Paper: Law and the

Elderly 2005: Law Reform Commission Consultation Paper: Vulnerable

Adults and the Law: Capacity Nov 2006: Commencement of Mental Health Act 2001 in full Dec 2006: Law Reform Commission Report: Vulnerable Adults and

the Law 2008: Scheme of Mental Capacity Bil l 2011: Announcement of Review of Mental Health Act 2001 2012: Publication of Mental Capacity Bil l – Promised 22 June 2012 (yesterday!): publication of Interim Report of

Steering Group on the Review of the Mental Health Act

‘PROCESS’ TO DATE

Expansion of ECHR jurisprudence

Convention on the Rights of Persons with Disabilities Inception Drafting Negotiations Agreement Commencement Signature

By Ireland (and 152 other states) Ratification

By 114 states (not including Ireland)

IN THE MEANTIME … THE WORLD MOVES ON

Polit ical Wil l

Other distractions – but only from 2008

Few votes in mental health reform

Absence of high profi le ‘law and order’ case

Judicial Att itudes

Mental Health: Generally supportive of ‘the overall scheme and paternalistic intent of the legislation’ (Kearns J. in EH v St Vincent’s Hospital [2009] IESC 46)

Mental Capacity: Less supportive of Lunacy Regulation (Ireland) Act 1871 (see Re Francis Dolan [2007] IESC 26) but no decisive kick

Reluctance to engage with ECHR

 

SUPPORTING INERTIA

Mental Health1992: Green Paper on

Mental Health1999: White Paper: A

New Mental Health Act2001: Mental Health Act April 2002: MHC2006: MHA commences2011: Review of MHA2012: Publication of

Interim Review Report

Mental Capacity

2003: LRC: Law and the Elderly

2005: LRC: Vulnerable Adults and the Law: Capacity

2006: LRC Report2008: Scheme of Bill2012: Publication of

Bill????????????????

AN ALTERNATIVE VIEW OF THE PROCESS

Mental Health Act

‘Patients’: Compulsorily Admitted

~2,000 people p.a.

Tribunal Review of Detention

Second Opinion on Treatment

Everyone else

‘Voluntary’ inpatients

~ 17,000 people p.a.~6,000 lacking capacity

High proportion long-stay patients

No reviews of detention or treatment

PERIMETERS OF THE DUAL MODEL

REFORMING IN A DUAL MODEL SYSTEM

THE RISKS

Mental Health

Best interests/rights

Public protection

Overtly limiting

Strong on procedural protections

Mental Capacity

Rights Protection

Supported Decision-making

Good on language

Weak on delivery

POLICY DRIVERS

ECHR: Deprivation of Liberty Procedural mechanism required: HL v United Kingdom

[2005] 40 EHRR 32 Positive Obligation on State: Stork v Germany (2005) 43

EHRR 96 Requirement to consider alternatives: Stanev v Bulgaria

(2012) ECHR 36760/06

CRPD Equal right to liberty and security of the person: Art 14 Equal right to Live in the Community: Art 19 Right to Equal Recognition before the law: Art 12

Includes a Right to supported decision-making

FORMULATING REFORM: THE HUMAN RIGHTS PERIMETERS

Apply the MHA to all admissions of people lacking capacity

Imitate England/Wales Deprivation of Liberty Safeguards

Normative shift to patient-centred assessment of reform

REFORM OPTIONS

Advantages

Neat

(Probably) ECHR compliant - although question re alternatives

DisadvantagesLimited suitability for

non-objecting people

Question re value of tribunal hearing if person lacks capacity to instruct lawyer

Treatment protections come very late - 3 months for medication

APPLYING THE MHA

Qualifying Requirements

Over 18; Suff er from a mental disorder; Lack capacity to decide about

admission Admission must be in her best

interests; S/he must not be inel igible for

admission because the admission confl icts with a pre-existing compulsory power under the MHA

S/he must not object to admission or to treatment ( including through an advance decision to this eff ect or through a court-appointed deputy or the donnee of a lasting power of attorney).

Assessments

An age assessmentA mental health

assessment; A mental capacity

assessment; A best interests

assessment;An eligibility

assessment;A no refusals

assessment.

DEPRIVATION OF LIBERTY SAFEGUARDS

A technical solution to a human rights problem

Complex, confusing, lack of understanding

New gaps created

Limited role for representative - Clear power imbalance: see London Borough of Hillingdon v Neary [2011] EWCP 1377 (COP)

No specific protections on treatment

DOLS: THE PROBLEMS

STANDPOINT

SOME SUGGESTIONS

Seek to avoid the dangers of technicalities

Enhance the functions of the representative: Everyone needs someone in their corner

Introduce specific oversight measures on ECT/long term medication

Develop support framework

Rights-Based Approach with Right of Autonomy/Self-determination as key

Increase in focus of inspectorate – including community based care

Recovery as a guiding principle Introduction of Mental Health Advance DirectivesConsider expansion of Advocacy – inc for childrenStand alone provisions on childrenRemoval of ‘unwilling’ from ss. 59 and 60Procedural Recommendations around Tribunals

THE MHA INTERIM REPORT: KEY RECOMMENDATIONS

Anticipation that many of shortcomings of MHA 2001 re capacity will be addressed

Steering Group ‘met with’ Department of Justice and Equality Two meeting: 16 Sept 2011 and 20 Jan 2012

Shared Recognition of need to ‘dovetail’ with Mental Capacity Bill

INTERIM REPORT: DEALING WITH THE DUAL MODEL

‘Voluntary’ means:

person who consents on his/her own behalf or with the support of others to admission

or On whose behalf a Personal Guardian appointed under the proposed capacity legislation consents to such admission

Key issue: what will the Personal Guardian’s powers/obligations be under the MCB?

DEFINING ‘VOLUNTARY’ PATIENTS

No need for external oversight where patient has capacity and consents

Patients with a Personal Guardian: Protections provided under capacity legislation will provide suffi cient protection of the rights of individual

Patients with fl uctuating capacity: level of external oversight

Inspectorate power of referral to Tribunal

Information provision re legal rights

PROTECTIONS FOR VOLUNTARY PATIENTS

Should not be undertaken lightly

Acceptance of need for treatment should be implicit in voluntary admission

Voluntary patients should be allowed leave – subject to 12 hour holding power

CHANGING STATUS: VOLUNTARY TO INVOLUNTARY

Patients who are ‘unable’ to give consent – needs examination light of capacity legislation

‘The Group is hopeful that the protections provided to patients under that legislation will be suffi cient and no further protections will be required under mental health legislation’

CONSENT AND INCAPACITY

Beware empty rhetoric

Details matter

What is going to be delivered?

Importance of holding elected representatives to account

Law reform is not the end – Monitoring Matters

END GAME