This article looks at the central provisions of the Mental Health Act 2001 as they relate to civil commitment of adults, with reference to appropriate case law. References will be published with Paper 4.

The Mental Health Act 2001 was formally enacted by the Irish Houses of Oireachtas on July 8, 2001, and implemented in a phased fashion over the following five years, culminating in full implementation on November 1, 2006. The legislation, which essentially replaced the Mental Treatment Act 1945, is chiefly concerned with two aspects of psychiatric services in Ireland: involuntary detention of persons with mental disorder in approved psychiatric centres; and mechanisms for assuring overall standards of mental healthcare.^30-34 The four key parts of the Act concern:

• Preliminary and general
• Involuntary admission of persons to approved centres• 
• Independent review of detention
• Consent to treatment.

Preliminary and general

The preliminary section of the Mental Health Act 2001 is primarily concerned with definitions. The term ‘mental disorder’ is used throughout and includes “mental illness, severe dementia or significant intellectual disability” where: (a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons; or (b)(i) because of the severity of the illness, disability or dementia, the judgement of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and (ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent (section 3(1)).

‘Serious likelihood’ of harm has been interpreted by the High Court to represent a standard of proof of a high level of probability beyond the normal standard of proof in civil actions (ie. more likely, or probable, to be true) but below the standard in criminal prosecution (ie. beyond reasonable doubt), ie. “proof to a standard of a high level of likelihood as distinct from simply being more likely to be true”.³⁵ The meaning of the word ‘serious’ in the phrase ‘immediate and serious harm’ has been interpreted by the High Court as differing depending on whether the harm is directed at self or others: 

Clearly, the infliction of any physical injury on another could only be regarded as ‘serious’ harm, while the infliction of a minor physical injury on the person themselves could be regarded as not serious.³⁵ More generally, the Mental Health Act 2001 defines ‘mental illness’ as: a state of mind of a person which affects the person’s thinking, perceiving, emotion or judgement and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons (section 3(2)).  

‘Severe dementia’ is “a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression”. ‘Significant intellectual disability’ is “a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person”.

For the purposes of the Act, a child is defined as “a person under the age of 18 years other than a person who is or has been married” (section 2(1)). A relative is “a parent, grandparent, brother, sister, uncle, aunt, niece, nephew or child of the person or of the spouse of the person whether of the whole blood, of the half blood or by affinity”. A spouse is a “husband or wife or a man or a woman who is cohabiting with a person of the opposite sex for a continuous period of not less than three years but is not married to that person”; same-sex cohabitants are, therefore, excluded from the definition of spouse.³¹ For the purposes of making an application for involuntary admission, the term spouse “does not include a spouse of a person who is living separately and apart from the person or in respect of whom an application or order has been made under the Domestic Violence Act, 1996” (section 9(8)).

The Act defines ‘voluntary patient’ as “a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order” (section 2(1)). In the remainder of the Act, the term ‘patient’ is used to mean a patient detained in accordance with the Act (section 2(1)) and not a voluntary patient. 

Involuntary admission of persons to approved centres

A person can be involuntarily admitted to an ‘approved centre’ on the grounds that the person is suffering from a ‘mental disorder’ (section 8(1)); a person cannot be so admitted solely on the grounds that the person “(a) is suffering from a personality disorder, (b) is socially deviant, or (c) is addicted to drugs or intoxicants” (section 8(2)). The Act does not provide a definition of the term ‘socially deviant’. An application for involuntary admission of a person can be made by a spouse, relative, ‘authorised officer’ (section 9(8)) or member of the Garda Síochána; in circumstances where no-one in these categories can be found to make an application, an application can be made by anyone else, subject to certain conditions (section 9(2)). In all cases, the applicant must have observed the patient within 48 hours of making the application (section 9(4)).

The next step involves examination of the patient by a registered medical practitioner (eg. general practitioner). This examination “shall be carried out within 24 hours of the receipt of the application and the registered medical practitioner concerned shall inform the person of the purpose of the examination unless in his or her view the provision of such information might be prejudicial to the person’s mental health, wellbeing or emotional condition” (section 10(2)). If the GP makes a ‘recommendation’ for involuntary admission, a copy of the recommendation “shall be sent by the registered medical practitioner concerned to the clinical director of the approved centre concerned and a copy of the recommendation shall be given to the applicant concerned” (section 10(4)). Such a recommendation “shall remain in force for a period of seven days” (section 10(5)).

Following the ‘recommendation’ for involuntary admission, “the applicant concerned shall arrange for the removal of the person to the approved centre” (section 13(1)). If the applicant is unable to do so, “the clinical director of the approved centre or a consultant psychiatrist acting on his or her behalf shall, at the request of the registered medical practitioner who made the recommendation, arrange for the removal of the person to the approved centre by members of staff of the approved centre” (section 13(2)). Owing to long-standing industrial relations issues, the HSE initially outsourced the transport of patients to approved centres to a private company; however, following judicial review proceedings in relation to one such ‘assisted admission’, the Irish High Court stated that, under the Mental Health Act 2001, removal of persons to approved centres must be performed by staff of the approved centre and not by independent contractors.³⁶

Returning to the involuntary admission process outlined in the Mental Health Act 2001 itself, the Act states: if “there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist the members of the staff of the approved centre in the removal by the staff of the person to that centre and the Garda Síochána shall comply with any such request” (section 13(3)). Under such circumstance, the Garda Síochána can, if necessary, enter the person’s dwelling by force and ensure the removal of the person to the approved centre.

After receiving a recommendation for involuntary admission, a consultant psychiatrist on the staff of the approved centre “shall, as soon as may be, carry out an examination of the person” and shall either (a) complete an ‘admission order’ if “he or she is satisfied that the person is suffering from a mental disorder” or (b) refuse to make such an order (section 14(1)). The patient cannot be detained for more than 24 hours without such an examination taking place and such an order being made or refused. If an admission order is made it authorises “the reception, detention and treatment of the patient concerned and shall remain in force for a period of 21 days” (section 15(1)); this period may be extended by a ‘renewal order’ for a period of up to three months (section 15(2)); this may be further extended by a period of up to six months; and this may be further extended by a period of up to 12 months (section 15(3)).  

Each new period of detention commences on the expiry of the previous period, once the renewal order has been completed prior to the expiry of the previous order.^37,38 The renewal orders should be completed by the consultant psychiatrist responsible for the care and treatment of the patient; more than one consultant psychiatrist may meet that description (eg. if a detained patient is under the care of a psychiatrist in the Central Mental Hospital but their catchment-area psychiatrist is also involved in their treatment).^39-41

Following the completion of an involuntary admission order, the consultant psychiatrist must inform the Mental Health Commission of the order and the Mental Health Commission shall then (a) refer the matter to a mental health tribunal (MHT); (b) assign a legal representative to the patient, “unless he or she proposes to engage one”; and (c) direct that an independent psychiatrist examine the patient, interview the patient’s consultant psychiatrist and review the patient’s records (section 17(1)). Within 21 days of an involuntary admission, a MHT shall review the detention of the patient and, “if satisfied that the patient is suffering from a mental disorder” and that appropriate procedure has been followed, shall affirm the order; if the tribunal is not so satisfied, the tribunal shall “revoke the order and direct that the patient be discharged from the approved centre concerned” (section 18(1)).  

In terms of procedural compliance, the MHT assesses compliance with sections 9 (application), 10 (recommendation), 12 (powers of police to take someone into custody), 14 (admission order by consultant psychiatrist), 15 (duration of admission and renewal orders) and 16 (provision of information to the patient); the MHT does not assess compliance with section 13 (removal of persons to approved centres) (section 18(1)(a)(i).⁴²

The tribunal hearing may be deferred “by order by the tribunal concerned (either of its own motion or at the request of the patient concerned) for a further period of 14 days and thereafter may be further extended by it by order for a period of 14 days on the application of the patient if the tribunal is satisfied that it is in the interest of the patient and the relevant admission order, or as the case may be, renewal order shall continue in force until the date of the expiration of the order made under this subsection” (section 18(4)). This does not mean that the duration of detention under a renewal order is extended, just that the tribunal is deferred.^39,43

The patient “may appeal to the Circuit Court against a decision of a tribunal to affirm an order made in respect of him or her on the grounds that he or she is not suffering from a mental disorder” (section 19(1),⁴⁴ ie. there is no possibility of appeal to the Circuit Court on other grounds (eg. procedural aberrations). Following an appeal in the Circuit Court, the patient may, if they wish, appeal to the High Court but not on grounds related to whether or not they suffer from a mental disorder; they may appeal to the High Court solely “on a point of law” (section 19(16)).

Part 2 of the Mental Health Act 2001 goes on to address a range of other areas, including provisions for transfer of detained patients between approved centres either (a) at the request of the patient or applicant (section 20(1)) or (b) when the clinical director “is of opinion that it would be for the benefit of a patient detained in that centre, or that it is necessary for the purpose of obtaining special treatment for such patient, that he or she should be transferred to another approved centre” (section 21(1)); in either case, the clinical director may arrange for the transfer of the patient to the other approved centre if the clinical director sees fit. In the case of proposed transfer to inpatient forensic psychiatric care, it is necessary that the clinical director of the approved centre notify the Mental Health Commission of the proposed transfer; the Commission shall refer the matter to a mental health tribunal which shall review the proposal within 14 days; and the MHT shall either: (i) if it is satisfied that it is in the best interest of the health of the patient concerned, authorise the transfer of the patient concerned; or (ii) if it is not so satisfied, refuse to authorise it (section 21(2)).

Part 2 of the Mental Health Act 2001 also permits the clinical director to “arrange for the transfer of a patient detained in that centre for treatment to a hospital or other place and for his or her detention there for that purpose” and the “detention of a patient in a hospital or other place under this section shall be deemed for the purposes of this Act to be detention in the centre from which he or she was transferred” (section 22(1)). The legislation states that such transfers must be arranged by the clinical director, but the High Court found that, in cases of medical emergency, it would be “manifestly absurd and contrary to the whole spirit and intention of the Act” to potentially jeopardise the health of a detained patient owing to the non-availability of the clinical director to personally ‘arrange’ such transfer to a medical facility; other staff may do so under such circumstances.⁴⁵

Regarding voluntary patients, the Mental Health Act 2001 states that when a voluntary patient “indicates at any time that he or she wishes to leave the approved centre, then, if a consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the approved centre is of opinion that the person is suffering from a mental disorder, he or she may detain the person for a period not exceeding 24 hours” (section 23(1)). The individual must express a desire to leave for this procedure to be evoked; other expressions of disagreement with treatment plans (eg. declining medication) do not appear to constitute grounds for detention under this section.⁴⁶

During this 24-hour period, the consultant psychiatrist responsible for the care of the patient “shall either discharge the person or arrange for him or her to be examined by another consultant psychiatrist” (section 24(1)) and, if that second psychiatrist “is satisfied that the person is suffering from a mental disorder, he or she shall issue a certificate in writing” to that effect (section 24(2)(a)); then, the consultant psychiatrist responsible for the care of the patient shall make a 21-day admission order (section 24(3)) which will be subject to review by a MHT within 21 days (and all the other conditions pertaining to involuntary admission orders) (section 24(4)).

Independent review of detention

The Mental Health Act 2001 makes provision for the appointment of a ‘Mental Health Commission’, the principal functions of which are “to promote, encourage and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services and to take all reasonable steps to protect the interests of persons detained in approved centres under this Act” (section 33(1)). Specifically, the Commission will:

• Appoint persons to serve on MHTs
• Establish a panel of psychiatrists to perform independent medical examinations
• Assist in organising free legal aid for patients
• Provide appropriate advice to Minister for Health 
• Prepare and review periodically, after consultation with such bodies as it considers appropriate, a code or codes of practice for the guidance of persons working in the mental health services.

The Commission shall comprise 13 members, including:

• One barrister or solicitor (of not less than 10 years’ experience)
• Three registered medical practitioners (two psychiatrists)
• Two representatives of registered psychiatric nurses
• One representative of social workers
• One representative of psychologists
• One person representative of the general public
• Three persons representing relevant voluntary groups (including two who suffer, or have suffered, from mental illness)
• One person to represent the chief executives of the health boards (section 35(2)).

No fewer than four members shall be women; no fewer than four members shall be men (section 35(2)(i)); and members will hold office for no more than five years (section 36(1)).

One of the central functions of the Commission is to appoint MHTs “to determine such matter or matters as may be referred to it by the Commission” (section 48(1)). One of the chief functions of tribunals is to review the detentions of patients involuntarily admitted to approved centres under the Act. Each tribunal shall comprise three members, including one consultant psychiatrist, one barrister or solicitor (of not less than seven years’ experience) and one other person (section 48(3)). Decisions will be made by majority voting (section 48(4)). A tribunal can direct a patient’s treating psychiatrist that the patient must appear at a tribunal at a given place and time; direct any persons to appear at a tribunal to give evidence; direct any person to produce any documents relevant to the work of the tribunal; and “give any other directions for the purpose of the proceedings concerned that appear to the tribunal to be reasonable and just” (section 49(2)).

The Mental Health Commission shall direct that an independent psychiatrist examine each patient detained under the Act, interview the patient’s consultant psychiatrist and review the patient’s records. Then, within 21 days of the making of an admission order, a MHT shall review the detention of the patient and, “if satisfied that the patient is suffering from a mental disorder” and that appropriate procedure has been followed, shall affirm the order; if the tribunal is not so satisfied, the tribunal shall “revoke the order and direct that the patient be discharged from the approved centre concerned” (section 18(1)). Similarly for renewal orders, a tribunal must be held within 21 days of the making of the renewal order; this 21-day period commences on the date of the making of the renewal order, even if the renewal order itself does not come into effect on that day (ie. if it has been made some days in advance of the expiry of the existing detention order).⁴⁷

The Mental Health Act 2001 also established an Inspector of Mental Health Services, to replace the existing Inspector of Mental Hospitals (section 50(1)). The functions of the Inspector of Mental Health Services are “to visit and inspect every approved centre at least once in each year and to visit and inspect any other premises where mental health services are being provided as he or she thinks appropriate” (section 51(1)(a)). Each year, the Inspector shall “carry out a review of mental health services in the State” and “furnish a report in writing to the Commission” (section 51(1)(b)).

Consent to treatment

The 2001 Act provides detailed guidelines in relation to “consent obtained freely without threats or inducements” (section 56) and specifies that “the consent of a patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent” (section 57(1)).

Psychosurgery can only be carried out if the patient consents in writing and if authorised by a MHT (section 58(1)). Electroconvulsive therapy shall be administered only if either (a) the patient consents in writing (section 59(1)(a)), or (b) if the patient is “unable or unwilling” to provide consent, the treatment is approved by the treating consultant psychiatrist and one other psychiatrist (section 59(1)(b)). Similarly, if “medicine has been administered to a patient for the purposes of ameliorating his or her mental disorder for a continuous period of three months, the administration of that medication shall not be continued” unless either (a) the patient consents in writing, or (b) if the patient is “unable or unwilling” to provide consent, the treatment is approved by the treating consultant psychiatrist and one other psychiatrist (section 60).

Overall, the implementation of these, and the various other provisions of the Mental Health Act 2001, has both addressed and raised various important issues relating to the human rights of individuals with mental illness. Paper 3 will focus specifically on human rights issues stemming from the Mental Health Act 2001.  

Declaration of interest: none.

See part 1 of this paper here.

See part 3 of this paper here.

See part 4 of this paper here.