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Law reform could expedite appeals over mental health detention

The length of time to appeal being institutionalised may be shortened if changes to the Mental Health Act are introduced. Campaigners say it is not enough to address the issue of “involuntary detention”.

Image: tedeytan via Flickr

THE TIME IN which a patient can appeal their detention in a mental health institution could be reduced if changes are made to the Mental Health Act 2001.

A review of the Act is currently under way.

In June 2011 Minister for Mental Health Kathleen Lynch published the Interim Report of the Steering Group on the review, for which a number of recommendations were made.

One of the steering groups recommendations was in relation to the timeframe until involuntary patients can have tribunal hearings.

Under the current 2001 legislation, involuntary patients who wish to appeal their detention in an acute mental health facility can have an appeal tribunal hearing 21 days after the initial detention.

The Department of Health said the Steering Group considered a “number of options regarding the role of the independent psychiatrist, one of which could possibly facilitate earlier tribunals”.

“The Minister will consider the procedural issues relating to Mental Health Act 2001, including the need, if any, for a shorter time frame for tribunals,” it said.

David McCarthy of Mad Pride Ireland told TheJournal.ie that the shortening of tribunal times does not go far enough stating that the process as a whole does not work in favour of the patient.

“If the time is reduced and not the process changed as a whole then it is really only cosmetic changes. It is the idea of psychiatry as one big inner circle that has to addressed,” he said, adding that the detention of voluntary patients in acute mental health hospitals “is happening every day”.

Patients who voluntarily present themselves to mental health services can have their “voluntary” status changed to “involuntary” resulting in them being detained against their will, he said.

He also questioned the time period in which the patients are held until their tribunal hearing. “The level of medication they are on up to the point that they have their appeal hearing also needs to be looked at. The intervening period from the time they are detained and the time they go before the tribunal they are allowed to be treated and medicated. Their judgement is therefore impaired”.

He added:

Under our Mental Health Act, the psychiatrist is the final arbitrator in all decisions relating to the patient. If you go into a mental health clinic of your own will and then decide that you would like to leave, with one stroke of the psychiatrists pen they can detain you as an involuntary patient. You then have a right to have a tribunal hearing, but only after 21 days are you able to appeal. Under these rules, people are afraid that if they go in they might not come out and that is no way for us to deal with people who need help.

The Mental Health Tribunals Division was set up under the Mental Health Act 2001. The Mental Health Commission is responsible for establishing mental health tribunals for patients. A mental health tribunal must consist of a barrister or solicitor, a lay person and a consultant psychiatrist.

The Mental Health Act 2001 and the tribunals were introduced following the actions of one Irish man who took his case all the way to the European Court of Human Rights.

Croke v Ireland was a case that was taken to the European Court of Human Rights in the 1990s. Under Article 5 – guaranteeing the right to liberty and security – the applicant challenged the 1945 Mental Treatment Act, arguing that the absence of an independent and automatic review at the time of his detention, or a periodic review afterwards, was a breach of his human rights.

No judgment was ultimately handed down, on the basis of a friendly settlement reached in 2000 when the Government agreement to repeal and replace the 1945 Act with human rights-compliant legislation.

Lecturer at NUI Galway lecturer Charles O’Mahony told TheJournal.ie that although the 2001 act and the introduction of tribunals was a positive development, “not a lot has changed” – adding that cases similar to Croke v Ireland are taking place to this day. This is the real problem that needs to be addressed in the mental health services in Ireland today, he said.

O’Mahony gave the 2011 example of PL v Clinical Director of St. Patricks University Hospital as one which highlighted the “serious shortcomings” in the mental health laws at present.

That case involves a patient who was initially a voluntary patient at St. Patrick’s University Hospital.  When he expressed a desire to leave the hospital, the consultant psychiatrist formed the opinion that the applicant was suffering from a mental disorder. He was examined by a second consultant psychiatrist and an admission order was signed. His appeal of detention was appealed  to the Mental Health Tribunal. He was detained until December 2011.

PL denied that he had a mental illness.  However following his evidence to the tribunal the following day, the consultant psychiatrist re-examined the patient and revoked the renewal order expressing that it was his view that the applicant no longer suffered from a “mental disorder” as defined in the Act and was being discharged. However the patient was not discharged, even though classed as a “voluntary patient”. Justice Peart ruled that the detention of PL after the revocation of the Renewal Order was lawful.

Lara Kelly of Mental Health Reform told TheJournal.ie that the effect of the 2001 Act was an immediate and sustained reduction in the numbers of patients involuntarily detained and this is welcome and that they recommended that the automatic entitlement to independent review of detention by a tribunal should be retained. She added:

Our main concerns were to do with the lack of an independent complaints mechanism, the involvement of family members and the importance of the recovery ethos. However, the reduction in time has the potential to be positive, in that people who do not need to be in hospital will not have to wait so long before being assessed and, potentially, discharged. However, a key point for us is that the second opinion given is an independent one.

Amnesty International Ireland recommends that voluntary patients have the right to leave the approved centre at any time unless the criteria for detention as an involuntary patient apply, and he or she shall be informed of that right.

O’Mahony says that once it has ratified the UN Convention on the Rights of Persons with Disabilities (CRPD), Ireland will have to meet the obligations as required adding “hopefully these issues can be resolved”.

McCarthy said: “You have your human rights such until you try to exercise them. The system has archaic ideas of incarceration. It’s time we had a look at ourselves. It is 2012, not 1812 – it’s time for our laws to reflect that.”

The Mental Health Commission stated that “any change to time frames would have to be examined in terms of operational logistics as well as legal implications”.

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