The Mental Health Act 2001 introduced several important changes to Irish psychiatric services and, in particular, to involuntary psychiatric admission processes, including, most notably, automatic reviews of detention orders by independent mental health tribunals. The High Court recognises that the changes introduced by the Act are important in both legal and societal terms:

“These provisions are exacting and complex. They were designed, however, by the Oireachtas in order to replace the situation whereby it was potentially possible for a person to be certified and detained in a mental hospital and then forgotten. The need for period review and renewal, and the independent examination of these conditions, is not a mere bureaucratic layer grafted on to the previous law for the treatment of those who are seriously ill and a danger to themselves and others: it is an essential component of the duty of society to maintain the balance between the protection of its interests and the rights of those who are apparently mentally ill.”⁴⁸

Prior to the implementation of the Act, myriad concerns were expressed about the Irish psychiatric service’s apparent unreadiness for the legislation, including issues related to an apparent lack of general resources,^49,50,51 the potential effects of mental health tribunals on therapeutic relationships,⁵² legal representation at tribunals for psychiatrists,⁵³ staffing of tribunals,⁵⁴ disagreements about indemnity⁵⁵ and rates of payment⁵⁶ for psychiatrists at tribunals, and unclearness about responsibility for harm to patients resulting from lack of resources for implementing the new legislation.⁵⁷ Psychiatrists expressed particular concern about the potential effects of adversarial mental health tribunals on the therapeutic alliance, increased administrative activity, and the potential for the legislation disproportionately to divert resources from voluntary to involuntary patient services.^58,59

In 2005, prior to full implementation of the Act, the Irish College of Psychiatrists stated that the absence of funding to implement the legislation in a timely fashion had serious implications in terms of human rights, for both future and current patients, whose mental health services might be curtailed in order to divert resources towards the implementation of the new legislation: “This is a human rights issue. People are entitled to the increased safeguards which are central to the Act – and it is imperative that people already attending should not have their services curtailed so that the Act can be implemented.”⁶⁰

Following considerable discussion, some additional resources were made available for mental health services, including extra consultant psychiatrist posts and some additional funds,⁶¹ and the final elements of the legislation (related chiefly to mental health tribunals) were implemented on November 1, 2006. In the first 11 months following full implementation, approximately 12% of involuntary admission and renewal orders that were examined by mental health tribunals were revoked.⁶² There is no systematic information available about the precise reasons for revocation (eg. procedural aberrations, absence of mental disorder) because the Mental Health Commission does not record the reasons for decisions of mental health tribunals. The Mental Health Commission has, however, outlined the cost of tribunals: each tribunal costs approximately E3,377, including E1,319 for the patient’s legal representative.⁶³

Specific human rights issues stemming from the Act

Two years after full implementation of the legislation, it was apparent that the Mental Health Act 2001 had brought both benefits and perceived challenges to Irish mental health services.^64,65 Some of the perceived challenges related to the role of GPs in involuntary admissions, the timing of mental health tribunals, the conduct of some patients’ legal representatives and the availability of reports by independent psychiatrists prior to tribunals.⁶⁶ Psychiatrists, in particular, expressed concern about the resource effects of implementing the legislation, including increased workloads for medical staff (reported by 69% of psychiatrists); changes in relationships with patients, including the emergence of more legalistic, conflicted relationships (41%); and decreased time spent with patients as a result of increased administrative activities (27%).^67,68

Notwithstanding these reported problems, 73% of psychiatrists reported that the legislation had resulted in greater protection for the rights of involuntary patients.⁶⁹ Some of the precise effects of the legislation in relation to human rights can be considered in relation to a number of specific areas, including:

• Mental health tribunals for patients currently detained
• Mental health tribunals for discharged patients
• Capacity in relation to voluntary patients
• Other human rights issues.

Mental health tribunals for patients currently detained

The introduction of mental health tribunals to review all detention orders brings Irish legislation into greater accordance with article 5(4) of the European Convention on Human Rights, which states that: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

In judgments to date, the European Court of Human Rights has found that delays of 55 days⁷⁰ and 24 days⁷¹ are not sufficiently speedy, suggesting that a maximum delay of approximately two or three weeks is likely to be acceptable, in the absence of specific requests by the patient for deferral (eg. in order to seek independent medical opinion).⁷² In Ireland, the Mental Health Act 2001 requires that the Mental Health Commission arranges an independent medical examination prior to tribunal, and that tribunals are held within 21 days of the signing of an order.  

In 2007, however, it emerged that mental health tribunals may have tended to be scheduled as late as possible in the 21-day period in order, apparently, “to minimise costs.”⁷³ This practice was strongly criticised by the Department of Health and Children⁷³ and the medical press,⁷⁴ and, in 2008, the Mental Health Commission⁷⁵ clarified that it was “fully committed to arranging the mental health tribunal hearing as early as possible in the involuntary admission”.

Before affirming an admission or renewal order, the mental health tribunal must be “satisfied that the patient is suffering from a mental disorder” (section 18(1)(a)) and appropriate procedures have been followed in making the order; if there has been a failure to follow appropriate procedures, the mental health tribunal can still affirm the order provided “the failure does not affect the substance of the order and does not constitute an injustice” (section 18(1)(a)(ii)). This provision allows mental health tribunals to overlook certain procedural anomalies but it is not at all clear to what extent such discretionary powers can be applied by tribunals or, indeed, the Irish courts. In Z v K and Anor,⁷⁶ for example, there was a series of apparent concerns raised regarding the procedures followed during a specific involuntary admission, including the following:

• The police took the individual in question into custody under section 12 of the Mental Health Act 2001, which requires that, following such detention, a member of the police force “shall make an application forthwith in a form specified by the Commission to a registered medical practitioner for a recommendation” (section 12(2)); in this instance, however, the police did not make such an application, and, instead, an application was signed by the patient’s brother (under section 9(1))
• The subsequent examination carried out by a GP comprised a “chat”⁷⁶ of 10 minutes’ duration during which both parties smoked cigarettes at the rear of a police station; in the High Court, the GP stated that he was not familiar with the definition of “examination” in the Mental Health Act 2001 and “was not even aware of what a mental state examination might entail” (page 4)
• A “delay of seven and a half hours” occurred between the arrival of the individual in question at the approved centre and the examination by the consultant psychiatrist; the patient submitted to the High Court that this did not accord with the requirement that “a consultant psychiatrist on the staff of the approved centre shall, as soon as may be, carry out an examination” (section 14(1)), although under the Act the individual can be detained at the approved centre for up to 24 hours for the purpose of such an examination (section 14(2))
• The detention order, when completed by the consultant psychiatrist in the approved centre, was not sent to the Mental Health Commission within the 24-hour time limit required by the Act (section 16(1)); the order was faxed to the Mental Health Commission approximately 45 hours after it was completed.

Having considered the matter in some detail, the High Court: (i) stated “that even though a somewhat unusual sequence of events occurred by the adoption of the section 9 procedure instead of continuing the procedures under section 12, there was nothing impermissible in what was done”⁷⁶; (ii) expressed “a certain disquiet” about the manner of the GP’s “examination” but “this complaint does not invalidate the applicant’s detention” (page 8) – the Mental Health Subcommittee of the Criminal Law Committee (2009) of the Law Society⁷⁷ subsequently noted that the judge had “endorsed, less than overwhelmingly”, this mental state examination; (iii) stated that the Act did not require the consultant psychiatrist “should immediately drop whatever he was doing and attend immediately or forthwith” (page 8-9), provided the examination was performed within 24 hours; and (iv) in relation to the failure to send the detention order to the Mental Health Commission within 24 hours, stated that “while there has been a breach of a technical requirement in this regard, it has not affected any right of the applicant in any fundamental way or at all” (page 9).

Regrettably, there are no centralised records of decisions reached by mental health tribunals so it is not possible to estimate the extent to which mental health tribunals overlook alleged or possible procedural irregularities or aberrations in their routine considerations of admission and renewal orders. Evidence from the High Court, such as the case above, clearly indicates a willingness, at the level of the High Court, to overlook purely technical concerns (such as the failure to submit forms to the Mental Health Commission within defined time-limits), but there is no mechanism to assess similar precedents at the level of mental health tribunals; while mental health tribunals may take guidance from High Court decisions, there is no way of knowing to what extent, if any, this shapes their decisions in practice.  

Similarly, in relation to other, less technical matters (such as the quality of the GP’s “examination”), there are no clear guidelines for either tribunals or the courts, raising the possibility of inconsistency in decisions regarding such matters. The absence of any centralised records of decisions reached by mental health tribunals both reflects and compounds this concern, removing the possibility of the accumulation of ‘case-law’ from mental health tribunals to guide future decisions and enhance consistency.

Mental health tribunals for discharged patients

If a detained patient has their detention order revoked prior to their mental health tribunal, the tribunal is cancelled and a tribunal “shall not be held unless the patient indicates by notice in writing addressed to the Commission within 14 days of his or her discharge that he or she wishes such a review to be held” (Mental Health Act 2001; section 28(5)). If the individual requests such a tribunal, it shall be held in accordance with the usual tribunal procedures for patients who are currently detained but “with any necessary modifications” (section 28(5)). The specific purposes of tribunals are to determine whether or not (a) correct procedure was followed in instigating the detention and (b) “the patient is suffering from a mental disorder” (section 18(1)(a)).  

If the tribunal occurs following discharge, the procedural question (a) can be examined just as it is for a patient who is still detained at the time of the tribunal (through examining documents, witnesses, etc.). The clinical question (b), however, is still phrased in the present tense, suggesting that the tribunal must determine whether or not “the patient is suffering from a mental disorder” on the day of the tribunal, even though the individual in question is no longer a “patient” within the meaning of the Act (ie. no longer detained under the Act, as per section (2)) and it is likely that no parties will argue that the individual still has a mental disorder, because the individual has already been discharged.⁷⁸

The High Court has placed considerable emphasis on the use of the present tense in the phrase “the patient is suffering from a mental disorder” (section 18(1)(a).⁴⁸ More specifically, when a patient who is discharged prior to tribunal requests a tribunal, and then wishes to appeal to the Circuit Court, the High Court has ruled that there is no statutory justification for such an appeal to be heard, because the only ground for such an appeal is that the patient “is not suffering from a mental disorder” (section 19(1)).  

In the case of the already-discharged patient, the issue of whether or not the individual had a mental disorder at time of detention is an historical one and therefore does not represent grounds for appeal to the Circuit Court, which are “that he or she is not suffering from a mental disorder” (section 19(1)).⁴⁸ On this basis, while a patient discharged prior to tribunal can have a tribunal, he or she cannot appeal that decision to the Circuit Court.

Capacity in relation to voluntary patients

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)). Throughout 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. This definition of “voluntary patient” is a broad one and does not make any reference to capacity and apparently can, therefore, include individuals who are not detained and lack capacity. 

The High Court has supported this broad definition of “voluntary patient”, noting that “the definition was cast in the wide terms used in order to provide for the variety of circumstances wherein a person is in an approved centre receiving care and treatment, but not subject to an admission order or a renewal order, including, in my view, the type of situation which has indeed arisen in this case, namely, where a detention pursuant to an admission order or a renewal order breaks down, but where the patient is suffering from a mental disorder and receiving care and treatment”.⁷⁹ This position was upheld by the Supreme Court.^80,81,82

The Act, however, is generally focused on involuntary rather than voluntary patients, and, while issues of capacity are not considered in relation to voluntary patients, they are considered in relation to consent to treatment for involuntary patients: “In this Part ‘consent’, in relation to a patient, means consent obtained freely without threats or inducements, where: (a) the consultant psychiatrist responsible for the care and treatment of the patient is satisfied that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment; and (b) the consultant psychiatrist has given the patient adequate information, in a form and language that the patient can understand, on the nature, purpose and likely effects of the proposed treatment” (section 56).

On this basis, the Act explicitly requires that an involuntary patient has capacity to provide “consent to treatment” but does not explicitly require capacity for an individual to become or remain a voluntary patient, or for a voluntary patient to provide consent to treatment. Arguably, this could conceivably result in a situation in which individuals without capacity may be de facto deprived of their liberty without the protections of effective capacity or mental health legislation⁷⁸ similar (in certain respects) to the situation outlined in the Bournewood case which was found to be incompatible with the European Convention on Human Rights.^83,84,85

Other human rights issues

• In addition to the above, the Mental Health Act 2001 has raised a series of other human rights issues, including issues related to:
• The grounds for the initiation of civil proceedings in the Circuit Court and High Court, in connection with the Mental Health Act 2001
• The relationship between the “leave” provisions of the Mental Health Act 2001 and possible compulsory community treatment⁸⁶
• Issues contributing to, and arising from, the Mental Health Act 2008.⁸⁷

Even though it is not possible to examine all of these issues in the present series of papers, it is readily apparent these kinds of human rights issues present significant cause for clinical, administrative and legal attention. Consistent with these concerns, Paper 4 in this series will examine more general issues related to the interpretation of the Mental Health Act 2001 and present some overall conclusions in relation to human rights and civil mental health law in Ireland.  

Declaration of interest: none.