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The ‘defacto detained’: How voluntary patients can be held without review

Under the current Mental Health Act, while involuntary patients are entitled to a have their detention reviewed by a mental health tribunal, voluntary patients are not afforded the same rights.

Image: corridor via Shutterstock

Updated 15.20pm

AS A NATION we have a long history of locking up our own people for the most spurious of reasons, whether it be the Magdalene Laundries, the industrial schools or psychiatric hospitals.

It is in our history, a stark and shameful fact about our country from which we cannot escape, and there are many former inmates still seeking compensation.

After every scandal that has emerged, the public asked one question: ‘How did we let this happen?’

What follows that question is a statement: ‘We will never let this happen again.’

The late journalist Mary Raftery stated in her 2011 documentary on the mental health system, Behind The Walls, that in the 1950s Ireland led the world in locking people up with impunity. There was an attitude against people who were ‘problematic’ and sadly, there still is.

There is no doubt that our mental health system today is far better than years gone by, that the move towards community care, the closing of the large-scale institutions dotted around the country is to be welcomed.

Today, people are still detained in psychiatric hospitals. Many of course need the supports and treatment a hospital can provide, but for others, a question mark hangs over their continued detention.

Involuntary and voluntary patients

However progressive the Mental Health Act 2001 was for the time, there are a number of shortcomings – the status labelling of patients and the rights it affords them is one of them.

Under the act there are two types of patients – voluntary and involuntary. One of the fundamental flaws within the law is its definitions of these patients and the unequal rights between them.

You would be mistaken in thinking that a voluntary patient is someone that has walked into a hospital of their own accord seeking help. While some patients are admitted this way, it is not the full picture.

The definition of a voluntary patient under the act means “a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order”. While an involuntary patient is defined as a person who has been “involuntarily admitted to an approved centre pursuant to an application under… and detained there on the grounds that he or she is suffering from a mental disorder”.

Under the law, an involuntary patient who is admitted against their will has a right to appeal their detention – this right was afforded to involuntary patients following the pivotal Croke V Ireland case.

Changing the law

In the early 1980s the person at the centre of the Croke case was diagnosed with a mental illness and admitted to hospital, where he was detained for a number of years without review. His case was taken to the the European Court of Human Rights (ECHR) under Article 5 of the Convention on Human Rights, which requires a proper system of judicial review of detention on the basis of mental disorder. He won his case. Following this landmark judgement, admission and review procedures were included in the new Mental Health Act 2001, but this was not enacted until 2006.

Tribunals were set up whereby after a period of 21 days the patient has the right to have their case heard in front of a tribunal of psychiatrists and legal experts.

Unfortunately, this right was not extended to voluntary patients.

Why would voluntary patients need a review of their detention: surely they can just leave? This is not always the case. A voluntary patient under the act is simply a person who is in hospital who is not subject to an admission order. In their interim report the expert group who is currently undertaking a fairly extensive re-writing of the mental health act cited this as something that needs to be investigated.

Some voluntary patients that are in approved centres lack the capacity to consent to their admission or treatment – yet their status is “voluntary”, not because they consented to be admitted, but because they had not the capacity to object. The expert group described this group of voluntary patients as the “defacto detained” and this group are not provided with any rights under the act.

The ‘voluntary’ patient

Ultimately, you can walk into a treatment centre, ask for assistance and you are deemed voluntary, but a person who is incapacitated, who does not have the ability to make a reasoned decision about their treatment or admission, can also be a voluntary patient – as in you only can become an involuntary patient when you indicate you want to leave and are refused – you are then re-classed as an involuntary patient – and your rights begin to kick in. However, if you are a long term voluntary patient within a unit, who has neither the capacity nor the ability to indicate you want to leave or question your treatment, you are not entitled to a review.

In 2011, Amnesty Ireland highlighted this, stating that the “description of such patients as ‘voluntary’ is misleading, in that it suggests the exercise of free choice by the individual concerned”. The EH v St Vincent’s Hospital and Others in 2008 showed just how this could happen. This case involved an involuntary patient who had an order to extend her detention rejected by a tribunal. This, in turn, changed her status into a voluntary patient, because she lacked capacity. When she attempted to leave, the hospital invoked section 23 of the act, which gives the power to prevent a voluntary patient from leaving. Then a new admission order was made and patient’s status returned to involuntary and was detained further on successive renewal orders.

The case was taken to the Supreme Court where it was argued that she never should have been given the status of  a voluntary patient as she was lacking in capacity, but the appeal was dismissed. Amnesty Ireland said that the lack of data on the numbers of “so-called compliant incapacitated patients” within the Irish mental health services is cause for an audit of these figures.

Auditing the figures

So who are these voluntary patients? While the Mental Health Commission strictly audits the numbers of involuntary patients per year, there is no breakdown as to what percentage of the voluntary patients are incapacitated.

Speaking to TheJournal.ie, Colm O’Gorman of Amnesty International Ireland said while the legislation was progressive at the time, it needs to be overhauled.  He said the definitions of voluntary and involuntary patients is “rather fluid and arbitrary” adding, there is no traceability when someone is detained as a voluntary patient. He said:

Under the act they can detained if they are a risk to themselves or others, but there is no mandatory treatability requirement. They are not saying that they are being detained because they are a risk to themselves or others AND we believe that there is a therapeutic procedure that that will deal with that risk or will address that health problem – they are just simply being detained.In what other walk of life or context can you imagine something like this happening. On the basis of a risk alone is grounds for detention without any treatment and then the treatment can be ongoing.

He added that the new capacity legislation, which was published last week, should be linked up with the review group of the Mental Health Act. Leading legal and medical experts have criticised that this is not the case. O’Gorman said that it was not cohesive to have the review group and the new capacity legislation working in isolation of each other, as the two will have to interplay in reality. However, the minister denies that this is the case. Watch here:

Christina Finn/YouTube

Last week, the publication of the Assisted Decision-Making (Capacity) Bill 2013 was announced, which if working in conjunction with the mental health laws could improve matters for vulnerable people, such as those detained in institutions. Minister for Justice Alan Shatter said: “I am pleased to announce a comprehensive reform of the long-outdated law on mental capacity, which will greatly assist vulnerable people with limited decision making capacity to better manage their personal, property and financial affairs.”

Speaking about the new bill, law lecturer at NUI Galway, Mary Keys said:

The review of the Mental Health Act is still taking place. If we want to ensure the outcome of that review and the new capacity bill is not fragmented we need to ensure that the human rights principals are the same in both. The capacity legislation should underpin the mental health law. Links between the two need to be forged in order to avoid the fragmentation we have seen so far. This debate is really important and it is vital that it is incorporating the same value system into the Mental Health Act.

She added that she was concerned that the new capacity bill may be taking a very narrow approach to mental health law stating that other jurisdictions, like the UK, have prevented people that are formally detained to come under the capacity legislation, something that Ireland should not strive towards, she said. Keys added:

Both laws need to be complimentary and not to be collisional.

Acting in the patient’s “best interests”

But it is not just the incapacitated. Some voluntary service users describe their experience as ‘‘compliance under the veil of coercion”. They have gone into hospital of their own accord, however, when they have decided to leave, their consulting psychiatrist has disagreed. Acting under the law, if your consulting psychiatrist believes he is acting in his patient’s “best interests” and if he believes they could be at risk to themselves or others, then he has the right to change your status from a voluntary patient to an involuntary.

Louise Bayliss, one such service user, who later became an advocate, said:

I was not well and I knew I needed some time out, to deal with it. I was voluntary as far as I was concerned, however when I decided I wanted to go, it became a big issue. My psychiatrist wanted me to stay but I was adamant I wanted to go, it was not what I thought it would be.I was effectively told that I could either stay as a voluntary patient or be made to stay as an involuntary, but that really, it would “look better” if I stayed as a voluntary – I mean, where is the voluntary choice there? And it seems the more you protest, the more likely you are to seem “distressed”, but wouldn’t anyone get distressed if they were told they couldn’t leave? Of course they would.

Rory Doody who has experienced mental health difficulties in the past said he would agree that this is very common. He said:

You have perhaps come out of hospital, you have gone back home and in order to get reviewed you go back into the outpatient department of the hospital and you meet a psychiatrist.
Depending on your day, whether you had trouble getting parking, if you had an argument with your loved one, if your favourite team lost a match the night before and you may be stressed, that can appear as ‘symptomatic’ and I have seen and sat in out patients departments where I have been asked ‘would you like to come inside, we think it would be best if you came inside’. What that does is actually negate community care.

Another service user who wished to remain anonymous said:

I voluntarily signed myself in to a mental health facility because I was concerned about my general frame of mind. At the time, I was under the impression that if you voluntarily sign yourself in, you can then leave when you feel ready to. Sadly, this was not the case and I was not informed of this when I signed myself in.It was only after I had signed myself in that I was then told by some of the other inpatients that I could only leave when whoever my attending psychiatrist had decided I was ready to. If I had known that this was how it worked, I would not have signed myself in at all, and I would not have subsequently ended up spending the next two months of my life being surrounded by some very disturbing people who I remain emotionally scarred about to this day.

She said she believed people should be fully informed of what it means to sign yourself in before they do so, stating “because I guarantee, if most people were to be fully informed, they would end up not signing themselves in at all.”

This is something the minister said she too is concerned about. Speaking in an interview with TheJournal.ie, she said incidences where people have their status changed from voluntary to involuntary “should be very rare”. She said she had asked the expert group to look at this issue stating:

There is clearly an issue between voluntary patients becoming involuntary and how does that happen… and if it is necessary then there needs a whole process put around it in order to ensure the person themselves know what the process involves and that you asking to leave, the suggestion then becoming that you are involuntary, that this triggers this process.

Dr Shari McDaid, policy officer for Mental Health Reform said, “Voluntary patients should have the right to leave. But there are cases where voluntary patients have been converted into involuntary and brought in under an admission order. Last year there was 567 of these cases where patients were regraded from voluntary to involuntary. What should happen in these cases is that they should be clearly told what is happening and all information should be presented to them.”

She said while the figures for involuntary patients looks relatively small in comparison to years gone by, with voluntary numbers on the rise, she said the figures might not reveal the full picture. She said:

There are about 15,000 admissions each year and about 2,000 of these are involuntary last year. In that sense, the figures look small, but but a quarter of involuntary admissions are actually voluntary patients who have been re-graded, so anyone going in needs to know that they can be regraded as involuntary.Also many patients, despite being kept in hospital, would prefer to remain under the status of voluntary because they think it’s viewed better, so that needs to be considered. Then there are the patients who don’t have the capacity to make the decisions, and they have no protections whatsoever, because they are under the status of voluntary.

Colm O’Gorman said that there is a real concern over incidences when a person might be coerced into remaining a voluntary patient.

“Someone who is coerced into staying in as a voluntary patient is not a voluntary patient. They are there because they are coerced into staying and/or they are threatened with involuntary detention because it is more onerous,” he said.

Stigma

O’Gorman added: “Isn’t that incredibly stigmatising to someone who will find themselves detained. It suggests that if someone is being detained because they are experiencing a serious mental health difficulty that this is a black mark against that individual for the rest of their lives. There is the whole question of further stigmatising. It also speaks clearly to the fact that many voluntary patients may not be voluntary because they feel pressured or coerced into staying when actually they want to leave.”

The expert group’s interim report also flagged this issue, stating: “There have been suggestions that many (capacitated) voluntary patients are not truly voluntary as they have consented to admission or to treatment only because of the threat of detention.” They added that they would recommend that voluntary patients should be voluntary in all respects and that patients should be well informed of what it entails when you voluntarily sign in to a hospital.

Minister Lynch said there is extraordinary scrutiny of the status-regrading figures and the longer-duration detainment figures are audited.

Section 23 and 24 – the power to prevent leaving and right to detain

However, Section 23 and 24 of the act provides the power to prevent a voluntary patient from leaving and allows for their detainment. The UN Committee Against Torture said in 2011 that there was a “lack of clarity” in the reclassification of patients’ status. Amnesty International Ireland state that they are concerned that this can make voluntary patients ‘involuntary’ in all but name.

They stated that while every time a patient is re-graded from voluntary to involuntary, the Mental Health Commission must be notified, there is no such notification requirement where the “holding power” of section 23 is invoked, but where section 24 – the right to detainment – is not invoked. They said that when section 23 of the act is invoked, the MHC should also be informed, so as to address any “inappropriate use of the power”.

When asked about the possible rolling over of section 23, where a person wants to leave can be held for up to 24 hours, then the patient could be coerced into staying as a voluntary patient and whether there was a possibility of this abuse taking place, Minister Lynch said:

I don’t think that anyone, no minister, anywhere, could ever absolutely swear that there are not abuses in the system.

Christina Finn/YouTube

The expert group has called for a review of section 23 and 24 of the act stating that “a voluntary patient that wants to leave should be able to do so”. Where the patient is deemed to be at risk, the recommended the short term detainment of the patient should be permitted for just 12 hours, rather than 24 hours.

Rory Doody said the Mental Health Act “legitimates inequality” adding that it legitimises discrimination, as it separates them and us. “It separates people from people,” he said adding that he believed too much power belongs to psychiatry.

When asked if the minister agreed with this statement, she said she had never met a consultant psychiatrist, in whatever area of medicine, who liked to have his judgement questioned, but said they were not being given power, but were being given responsibility. She also said that psychiatrists acting “god-like” and “arrogant” was a difficulty.

Christina Finn/YouTube

A review of the Act took place in 2007, but many of the recommendations have not been implemented.

Colm O’Gorman of Amnesty Ireland sounds a warning on the nation’s seeming inability to learn from the past:

We surely have to acknowledge that we have a huge legacy difficulty. History only becomes history when you have learned from it and moved on from the past. If we do not do that, then it most likely is still influencing our present.
If we come from a history of those difficulties then the legacy, that denial, that failure to understand the complexities involved in issues like how we should properly support those with mental health problems, that is likely to influence the approach we have today.

This article was written with the support of the Mary Raftery Journalism Fund. To find out more about the fund, please visit www.maryrafteryfund.ie or follow @maryrafteryfund on Twitter.

First published 6.45am

Read: Mental Health Series Part One – Minister Lynch: ‘Unwilling’ patients no longer to receive electric shock therapy>

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