1. FALLING THROUGH THE
GAPS?: FORMULATING
Mental Health Law Reform:
New Perspectives and
Challenges
Centre for Disability, Law
REFORM IN A DUAL-
and Policy, National
University of Ireland, Galway
June 23, 2012
Dr Mary Donnelly,
MODEL SYSTEM
Law Faculty,
University College Cork
2. ‘PROCESS’ TO DATE
1992: Paper on Mental Health
1999: White Paper: A New Mental Health Act
2001: Enactment of Mental Health Act
April 2002: Commencement of Par t 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 Repor t: Vulnerable Adults and the
Law
2008: Scheme of Mental Capacity Bill
2011: Announcement of Review of Mental Health Act 2001
201 2: Publication of Mental Capacity Bill – Promised
22 June 201 2 (yesterday!): publication of Interim Repor t of Steering
Group on the Review of the Mental Health Act
3. IN THE MEANTIME … THE WORLD MOVES
ON
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)
4. SUPPORTING INERTIA
Po l it ic al Wi l l
Other distractions – but only from 2008
Few votes in mental health reform
Absence of high profile ‘law and order’ case
Judi c i a l At t i t ude s
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
5. AN ALTERNATIVE VIEW OF THE PROCESS
Mental Health Mental Capacity
1992: Green Paper on 2003: LRC: Law and the
Mental Health Elderly
1999: White Paper: A
New Mental Health Act 2005: LRC: Vulnerable
2001: Mental Health Act Adults and the Law:
April 2002: MHC Capacity
2006: MHA commences 2006: LRC Report
2011: Review of MHA 2008: Scheme of Bill
2012: Publication of 2012: Publication of
Interim Review Report
Bill????????????????
6. PERIMETERS OF THE DUAL MODEL
Mental Health Act Everyone else
‘Patients’: Compulsorily ‘Voluntary’ inpatients
Admitted
~ 17,000 people p.a.
~2,000 people p.a. ~6,000 lacking capacity
Tribunal Review of High proportion long-stay
Detention patients
Second Opinion on No reviews of detention
Treatment or treatment
9. POLICY DRIVERS
Mental Health Mental Capacity
Best interests/rights Rights Protection
Public protection Supported Decision-
making
Overtly limiting
Good on language
Strong on procedural
protections Weak on delivery
10. FORMULATING REFORM: THE HUMAN
RIGHTS PERIMETERS
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
11. REFORM OPTIONS
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
12. APPLYING THE MHA
Advantages Disadvantages
Neat Limited suitability for
non-objecting people
(Probably) ECHR Question re value of
compliant - although tribunal hearing if person
question re alternatives lacks capacity to instruct
lawyer
Treatment protections
come very late - 3
months for medication
13. DEPRIVATION OF LIBERT Y SAFEGUARDS
Qualifying Requirements Assessments
Ove r 1 8 ;
Suf fe r fro m a m e n t a l di s o rde r;
An age assessment
La c k c a pa c i t y to de c i de a bo ut A mental health
a dm i ssion
Adm i ssion m us t be i n h e r be s t
assessment;
i n te rest s; A mental capacity
S/ h e m us t n ot be i n e ligible fo r
a dm i ssion be c a us e t h e a dm i ssion assessment;
c o n fl ic t s w i t h a pre - ex i s t ing
c o m pul sor y powe r un de r t h e M H A A best interests
S/ h e m us t n ot o bj e c t to a dm i s sio n
o r to t re a t m e n t ( i n c luding t h ro ug h
assessment;
a n a dva n c e de c i s ion to t h i s e f fe c t
o r t h ro ug h a c o ur t - a ppo i n te d
An eligibility assessment;
de put y o r t h e do n n e e o f a l a s t i ng
powe r o f a t to rn ey ) .
A no refusals
assessment.
14. DOLS: THE PROBLEMS
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 Near y [2011] EWCP 1377
(COP)
No specific protections on treatment
16. 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
17. THE MHA INTERIM REPORT: KEY
RECOMMENDATIONS
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 Directives
Consider expansion of Advocacy – inc for children
Stand alone provisions on children
Removal of ‘unwilling’ from ss. 59 and 60
Procedural Recommendations around Tribunals
18. INTERIM REPORT: DEALING WITH THE
DUAL MODEL
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
19. DEFINING ‘VOLUNTARY’ PATIENTS
‘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?
20. PROTECTIONS FOR 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 suf ficient protection of the
rights of individual
Patients with fluctuating capacity: level of external oversight
Inspectorate power of referral to Tribunal
Information provision re legal rights
21. CHANGING STATUS: VOLUNTARY TO
INVOLUNTARY
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
22. CONSENT AND INCAPACIT Y
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 suf ficient and no further
protections will be required under mental health legislation’
23. END GAME
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