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Loophole means 'voluntary' mental health patients have diminished right to appeal detention

It’s been almost six years since reforms of the Ireland’s mental health laws were recommended.

It's been almost six years since reforms of the Ireland's mental health laws were recommended.
It's been almost six years since reforms of the Ireland's mental health laws were recommended.
Image: Shutterstock/sfam_photo

AN INDEPENDENT BODY should be set up to investigate complaints made by inpatients in mental health centres, according to the Mental Health Reform organisation. 

The coalition of groups campaigning for better mental health rights made the recommendation in a recent submission to government for the public consultation on updating Ireland’s outdated mental health laws.

The heads of a new bill which are meant to update Ireland’s mental health legislation have been significantly delayed. 

It’s been six years since an expert group tasked with reviewing the Mental Health Act 2001 recommended 165 changes to the law.

A spokesperson for Minister of State Mary Butler, who has responsibility for mental health, said the Department of Health aims to seek approval from Cabinet and publish the general scheme to update the Act in full before the summer recess. 

The plan is to introduce the bill to the Houses of the Oireachtas as part of the autumn legislative programme.

Mental health campaigners, such as Mental Health Reform, have been urging the government to deliver on a promise (made by former Mental Health Minister Kathleen Lynch) to publish a general scheme of a new Mental Health Act.

The Journal has reported extensively on how the shortfalls in legislation are having a real impact on the care of patients in Ireland’s mental health care system – in particular, about how ‘voluntary’ patients in mental health institutions continue to be detained in hospital without review.

Delays in reforms

It had been expected that the bill would be ready by the end of 2019, but that did not materialise. 

At the time, Mental Health Reform’s Senior Policy and Research Officer, Kate Mitchell said that Ireland’s Mental Health Act is significantly out of line with international human rights law and does not adequately protect the rights of people who go into hospital for mental health treatment.

She said the protracted delays in publication of this legislation were completely unacceptable, stating that many people using mental health services do not feel that they are being treated with dignity and respect.

The updated Act will include new text on the provision of information for voluntary patients. Furthermore, the draft heads include the recognition of rights of 16 year olds and 17 year olds to have an equal say over their mental health care as with physical health.

The department is understood to be analysing submissions on the law reform, with a legal review also taking place currently.

Independent complaints mechanism

In a submission to government on the new draft bill, Mental Health Reform has called for an independent complaints mechanism to be adopted.

While there is a stand alone service located within the Mental Health Commission, this will only give support on decision making and investigate complaints on decision making for people with a mental health difficulty.

The organisation said such a narrow remit is solely set to apply to complaints surrounding decision-making, which would limit the scope of the sort of complaints that can and will be investigated on behalf of patients in mental health centres. 

An independent, publicly funded body should be set up under the proposed new laws to investigate all complaints arising out of the time spent by service users in inpatient settings for mental health care and treatment.

“This will ensure transparency,” said the group.

However progressive the Mental Health Act 2001 was for the time, there are a number of shortcomings, the group says – including the labelling of patients and the rights these labels afford to them. 

Under the act there are two types of patients – voluntary and involuntary.

It might be assumed 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”.

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. 

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.

A number of mental health groups have said not enough is done to protect the right of voluntary patients who want to leave a mental health facility.

Recommendations

The expert group that made over 150 recommendations to reform the mental health law did advise to keep Section 23 of the law, which allows a voluntary patient to be detained for up to 24 hours before undergoing admission as an involuntary patient.

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Mental Health Reform said review boards should be set up to review all conversions o changes in a person’s inpatient status and for guidelines to be developed for staff.

The group also said in its submission this week that Advance Healthcare Directives (‘AHD’) should be permitted in mental health care centres. The group said it provides a way for people to articulate their will and preferences for a later date in which their views may become unclear or unknown.

However, under the 2015 Act, people who are detained in hospital for mental health
treatment are specifically excluded from legally binding AHDs. They have no legal right to have their advance wishes respected, even though they had capacity to make decisions
about their mental health care and treatment at the time of making their directive.

“There is no other group of individuals that are specifically excluded from this legal right; a shortfall which is clearly contrary to international human rights standards, including the UNCRPD,” said the group.

“To make a blanket denial of a person’s preferences and concerns when they are detained
involuntarily on mental health grounds is simply unjust, particularly at the moment such
AHDs become most important. It is essential that AHDs apply equally to people with mental health difficulties, as to others, to promote respect for treatment preferences.

“They should apply to people who are voluntarily admitted, people who are involuntarily detained, and to individuals engaged with forensic mental health services,” said the Mental Health Reform group.

It said that those experiencing mental health difficulties must be given parity of esteem with those experiencing physical health problems. 

There have been growing calls in the Dáil for the government to address the mental health issues arising from the pandemic. This week, Sinn Féin will put down an motion calling for an emergency talk therapy fund to be set up to provide additional sessions with accredited counsellors through the private system for those in need of immediate support. 

It is also calling for surge capacity within all private hospitals with acute mental health beds to be used in accordance with the ‘surge capacity’ agreement currently in place.

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