Paper 4 examines issues related to the interpretation of the Mental Health Act 2001 and presents overall conclusions in relation to human rights and civil mental health law in Ireland.

Paternalism in the interpretation of the Mental Health Act 2001

While The Mental Health Act 2001 opened up the possibility of greater protection for the human rights and personal dignity of detained persons, interpretation of the Act by the Irish Courts, and the enactment of the Mental Health Act 2008, have demonstrated substantial evidence of a paternal approach to the mentally ill, similar to that in evidence under the Mental Treatment Act 1945. The High Court has made this explicit:

“In my opinion having regard to the nature and purpose of the Act of 2001 as expressed in its preamble and indeed throughout its provisions, it is appropriate that it is regarded in the same way as the Mental Treatment Act of 1945, as of a paternal character, clearly intended for the care and custody of persons suffering from mental disorder.”³⁵

The Supreme Court agrees that interpretation of the Mental Health Act 2001 “must be informed by the overall scheme and paternalistic intent of the legislation”,⁸⁰ as exemplified by the Act’s requirement that the “best interests of the person shall be the principal consideration” in relation to all decisions made under the Act, “with due regard being given to the interests of other persons” (section 4(1)). The High Court has stated that this section “infuses the entire of the legislation with an interpretative purpose”. 

Notwithstanding these judgments, however, there appear to be limits on the extent to which the Mental Health Act 2001, even when interpreted paternalistically, permits the High Court or mental health tribunals to overlook non-compliance with the precise requirements of the Act, according to the High Court:

“It is to be borne in mind that section 4 requires that where decisions are made under the Act concerning the care and treatment of person, the best interest of the person is to be the principal consideration. This requirement applies to mental health tribunals who must consider the validity or otherwise of renewal orders or admission orders. In my opinion the best interests of a person suffering from a mental disorder are secured by a faithful observance of and compliance with the statutory safeguards put into the 2001 Act, by the Oireachtas. That together with the restriction in section 18(1)(a)(ii) mean that only those failures of compliance which are of an insubstantial nature and do not cause injustice can be excused by a mental health tribunal.”⁴⁶

It is not possible to establish the extent to which mental health tribunals overlook such procedural aberrations or, indeed, act in a paternalistic fashion, owing to the fact that the Mental Health Commission does not collect data on reasons for revocations of detention orders by tribunals. Nor, regrettably, is it possible to draw clear conclusions about the extent to which tribunals are conducted in adversarial rather than inquisitorial fashions, even though at least some tribunal chairpersons recommend that tribunals should be inquisitorial rather than adversarial in nature.⁴³ Notwithstanding the absence of systematic data on this issue, there is now significant evidence that at least some mental health tribunals are adversarial in nature and have significantly negative effects on the doctor-patient relationship.^68,73,75 This is, broadly, inconsistent with the intention of the legislators that the “best interests of the person shall be the principal consideration” in relation to all decisions made under the Act (section 4(1)) and, indeed, with the generally paternalistic interpretation of the Act in the High and Supreme Courts.⁸⁸

The best interests of the patient

In addition to the general interpretative issues and trends discussed above, specific cases may shed further light on particular approaches to interpreting the legislation which are likely to find support in the emergent case law. In FW v Dept of Psychiatry James Connolly Memorial Hospital, for example, a consultant psychiatrist realised that a patient (FW) was unlawfully detained, when it emerged that FW had issued proceedings against her husband, the applicant, under the Domestic Violence Act 1996. The psychiatrist immediately advised the patient that she was free to go, but when the patient, some time later, chose to leave, staff of the hospital had arranged that members of the Gardaí were present at the door of the hospital to take her into custody and possibly commence new involuntary detention proceedings at once.⁹¹   

The patient challenged her detention in the High Court on the grounds that she had “never been released in reality from an admitted unlawful detention”.⁹¹ The High Court noted that the actions of the hospital were motivated by concern for the patient:

“She was clearly a highly vulnerable person who needed care. The psychiatric hospital was not responsible for the fact that her admission had been invalidly made and in fact had discovered this fact themselves. The hospital had then acted promptly to obtain legal advice to clarify the situation and had notified the applicant that she was free to go. [The consultant psychiatrist] and her staff however remained deeply concerned for the applicant’s safety and wellbeing in the light of her mental problems which were well known to them. [The consultant psychiatrist] tried unsuccessfully to persuade the applicant to remain voluntarily. Rather than allow her depart into the night with no arrangements made to ensure her safety or continuing care, [the consultant psychiatrist] contacted the Gardaí with a view to having them act under section 12 of the Mental Health Act. They delayed her departure until the Gardaí could come and when she left the hospital, she was immediately taken into custody by them under section 12(1)(a)” (p3). 

The Court drew particular attention to the actions of the hospital and members of the police force in detaining the patient immediately after she left the hospital:

“I consider the action of [the consultant psychiatrist] and her staff to be highly creditable in the circumstances. Dealing with a very difficult situation, their predominant interest was the care and safety of the applicant. Their action ensured as best they could that when the applicant did leave their care, she did not depart into the night with no arrangements to ensure her safety and wellbeing. The actions of [the consultant psychiatrist] and her staff and those of the Gardaí at Blanchardstown Garda Station may well have prevented a tragic outcome to the day’s event” (p3).

On the basis of this case, it is apparent that practitioners need to bear the best interests of the patient in mind when making all decisions relating to the Mental Health Act 2001, especially as they relate to involuntary admission and discharge from approved centres.

Overall assessment: human rights and the Mental Health Act 2001

The Mental Health Act 2001 introduced many important changes to mental health services and legislation in Ireland, most notably in relation to involuntary admission procedures and independent reviews of involuntary detention orders. A majority of stake-holders in mental health services (service-users, service-providers and others) believe the introduction of the Act has supported the protection of human rights.^75,69 More specifically, the Act has resulted in the removal of indefinite detention orders (“person of unsound mind”) that existed under the Mental Treatment Act 1945 (section 14; chapter 1); the articulation of new involuntary admission procedures (part 2); the introduction of automatic, independent review of detention orders by mental health tribunals (section 48); the provision of free legal representation (section 17(1)(b)) and independent psychiatric opinions (section 17(1)(c)) for patients prior to mental health tribunals; and the establishment of the Mental Health Commission to oversee implementation of the Act and standards of psychiatric care (section 32).

The implementation of the Act, and its subsequent case law, has, however, raised a series of additional human rights issues including, most notably, issues related to:

• The absence of systematic data collection about decisions of mental health tribunals, leading to uncertainty about reasons for revocations (eg. procedural aberrations, absence of mental disorder); unclearness the extent to which procedural aberrations are over-looked by tribunals (section 18(1)(a)(ii)); and an absence of cumulative tribunal “case law” to guide tribunal decisions
• Restrictions on the acceptable grounds for civil proceedings in the Circuit (section 19(1)) and High Courts (section 19(16)), and the fact that the burden of proof lies with the patient in the Circuit Court (section 19(4)(a)) 
• Unclearness about the precise matters at issue in mental health tribunals for discharged patients (section 18(5)) 
• The definition of voluntary patient, which does not include a requirement for capacity (section 2(1)) 
• The enactment of the Mental Health Act 2008, which appears to have stemmed from a poorly worded statutory form and resulted in the retrospective declaration that detentions based on the flawed form had been lawful all along, and were to remain so for up to five working days⁸⁷
• Substantial evidence of paternalism in the implementation and interpretation of the Mental Health Act 2001 by the Irish courts.⁸⁸

In resource terms, there are also significant opportunity costs associated with the new legislation, including increased workloads for medical staff and decreased time spent with patients, owing to increased administrative activities and attendance at court proceedings.^67,68 Ironically, one especially influential High Court case, which focused initially on allegedly inadequate levels of mental health service resources (provision of hostels), ended up focusing on a poorly worded statutory form, sparking emergency legislation in parliament, triggering approximately 209 additional mental health tribunals, and costing the state at least E993,377 in direct costs, in addition to indirect costs which are estimated to amount to double direct costs.⁸⁷ These resource and opportunity costs are all the more significant owing to the Act’s failure to reflect the earlier advice of the Irish Law Society, which suggested that, among other reforms, “a right to a minimum level of psychiatric service provision be introduced by statute.”²⁵

As a result, while there is significant agreement that the Act has enhanced protections of the right to liberty for individuals detained in psychiatric facilities,^75,69 there is little evidence that it has enhanced the quality of psychiatric services and some evidence that the resource and opportunity costs of the legislation may have even eroded “the right to treatment”.^68,69 When questioned in Dáil Éireann about mental health services during the period when the Act was being rolled out (2001-2006), the government Minister with responsibility for mental health responded that “a constant reiteration and repetition of the problems in the mental health service is becoming a bit tiresome to many organisations...”  

“Tiresome” as these issues may be to some, they are likely to come into increasing focus in future years owing not only to pressure resulting from delays implementing Ireland’s 2006 mental health policy, A Vision for Change, but also international pressure resulting from Ireland’s public commitment to the World Health Organization’s Mental Health Declaration for Europe and Mental Health Action Plan for Europe, both of which emphasise the importance of adequate resourcing of mental health services in individual states. 

Moreover, in addition to these general statements of mental health policy, the World Health Organization has made specific and robust recommendations in relation to mental health law in individual states, placing particular emphasis on protecting the human rights of individuals with mental illness. This complex, critical relationship between human rights and mental health law both merits and requires close attention in the years to come: hopefully, the Mental Health Act 2001 was simply the first step of many, which will ultimately result in the robust protection of the right to liberty, right to treatment, and maintenance of personal dignity, for individuals with mental illness in Ireland.

See part 1 of this paper here.

See part 2 of this paper here.

See part 3 of this paper here.

Declaration of interest: none.

Reference

1. Robins, J. Fools and Mad: A History of the Insane in Ireland, Dublin: Institute of Public Administration, 1986
2. Kelly BD. Mental illness in nineteenth century Ireland: a qualitative study of workhouse records, Irish Journal of Medical Science, 2004; 173: 53-55
3. Psychiatrist, Insanity in Ireland, The Bell, 1944; 7: 303-310.
4. Finnane, P, Insanity and the Insane in Post-Famine Ireland, London: Croon Helm, 1981
5. Hallaran, W.S., An Enquiry into the Causes producing the Extraordinary Addition to the Number of Insane together with Extended Observations on the Cure of Insanity with hints as to the Better Management of Public Asylums for Insane Persons, Cork: Edwards and Savage, 1810
6. Kelly, BD, Dr William Saunders Hallaran and psychiatric practice in nineteenth-century Ireland, Irish Journal of Medical Science, 2008; 177: 79-84
7. Williamson, A, The Beginnings of State Care for the Mentally Ill in Ireland, Economic and Social Review, 1970; 10: 280-291
8. O'Neill, A-M, Irish Mental Health Law, Dublin: First Law, 2005
9. Wright, D, Moran, JE, Gouglas, S, The confinement of the insane in Victorian Canada: the Hamilton and Toronto asylums, c. 1861-1891 in Porter, R. and Wright, D. (eds), The Confinement of the Insane: International Perspectives, 1800-1965, Cambridge: Cambridge University Press, 2003: 100-128
10. Coleburn, C., Passage to the asylum: the role of the police in committals of the insane in Victoria, Australia, 1848-1900, in Porter, R. and Wright, D. (eds), The Confinement of the Insane: International Perspectives, 1800-1965, Cambridge: Cambridge University Press, 2003: 129-48
11. Gasser, J, Heller, G, The confinement of the insane in Switzerland, 1900-1970: Cery (Vaud) and Bel-Air (Geneva) asylums, in Porter, R. and Wright, D. (eds), The Confinement of the Insane: International Perspectives, 1800-1965, Cambridge: Cambridge University Press, 2003: 54-78
12. Prestwich, PE, Family strategies and medical power: evoluntaryí committal in a Parisian asylum, 1876-1914 in Porter, R. and Wright, D. (eds), The Confinement of the Insane: International Perspectives, 1800-1965,  Cambridge: Cambridge University Press, 2003: 79-99
13. Prior, P.M., Dangerous lunacy: The misuse of mental health law in nineteenth-century Irelandî, Journal of Forensic Psychiatry and Psychology, 2003; 14: 525-541
14. Inspectors of Lunatics, The Forty-Second Report (With Appendices) of the Inspector of Lunatics (Ireland), Dublin: Thom & Co. for Her Majestyís Stationery Office, 1893.
15. Lyons, F.S.L., Ireland Since the Famine, London: Fontana, 1985
16. Healy, D, Irish psychiatry in the twentieth century, in, Freeman, H, Berrios, GE (eds), 150 Years of British Psychiatry. Volume II: The Aftermath, London: Athlone Press, 1996: 268-91
17. Shorter, E, A History of Psychiatry: From the Era of the Asylum to the Age of Prozac, New York: John Wiley and Sons, 1997
18. US Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, Bicentennial Edition, Part 2, Washington DC: GPO,1975
19. Kelly, BD, Mental health law in Ireland, 1945 to 2001: Reformation and renewal? Medico-Legal Journal, 2008; 76: 65-72
20. Kelly, BD, The Mental Treatment Act 1945 in Ireland: an historical enquiry, History of Psychiatry 2008, 19: 47-67
21. Cooney, T, O'Neill, O, Kritik 1: Psychiatric Detention: Civil Commitment in Ireland, Delgany, Wicklow: Baikonur, 1996
22. Spellman, J, Section 260 of the Mental Treatment Act, 1945 Reviewed, Medico-Legal Journal of Ireland, 1998, 4: 20-24
23. B v. The Minister for Health & Children and others [2008] IESC 40
24. Madden, E., Section of Mental Health (sic) Act was unconstitutional, Irish Medical Times, 2009; 30: 15
25. Law Reform Committee, Mental Health: The Case for Reform, Dublin: The Law Society, 1999
26. United Nations, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, New York: United Nations, Secretariat Centre For Human Rights, 1991
27. Department of Health, White Paper: A New Mental Health Act, Dublin: The Stationery Office, 1995
28. C v. Ireland [2000] EHRR, application number 33267/96
29. Shanahan, C, He stabbed me five times and had a direct hit on my lung, Irish Examiner 2008, 19 January.
30. Kelly, BD, Viewpoint: The Mental Health Act 2001, Irish Medical Journal, 2002; 95: 151-152
31. Kelly, BD, The Irish Mental Health Act 2001, Psychiatric Bulletin, 2007, 31: 21-24
32. Kennedy, H, The Annotated Mental Health Acts, Dublin: Blackhall Publishing, 2007
33. Keys, M, Annotated Legislation: Mental Health Act 2001, Dublin: Round Hall, Sweet and Maxwell, 2002
34. Leahy, T, Challenges with new mental health lawî, Forum, 2007; 24: 14-15
35. MR v. CB, administrator, and Dr FF, clinical director, Sligo Mental Health Services, Ballytivnan, Co. Sligo [2007] IEHC 73
36. EF v. The Clinical Director of St Ita's Hospital [2007] JR 816
37. MD v. Clinical Director of St Brendanís Hospital & Anor [2007] IEHC 183
38. Madden, E, Involuntary detention found admissible in the High Courtî, Irish Medical Times, 2007, 28, 20.
39. JB v. The Director of the Central Mental Hospital and Dr RH and the Mental Health Commission and the Mental Health Tribunal [2007] IEHC 201).
40. MM v. Clinical Director Central Mental Hospital [2008] IESC 31
41. Madden, E, Supreme Court rules of Mental Health Act, Irish Medical Times, 2008; 22: 26
42. C v. Clinical Director of St Patrick's Hospital & Anor [2009] IEHC 13
43. Lee, G, Far from the madding crowd, Law Society Gazette, 2008; 6: 40-43
44. Mills, S, The Mental Health Act 2001: involuntary psychiatric treatment and detention, Irish Psychiatrist, 2004; 5: 49-55
45. PMcC v. The Medical Director of the Mater Misericordia Hospital in the City of Dublin, and the Clinical Director of St. Aloysius Ward Psychiatric Unit of the Mater Misericordia Hospital in the City of Dublin and the Health Service Executive and, by order, the Mental Health Tribunal [2007] SS 1413
46. Q v. St Patrick's Hospital [2006] OíHiggins J, ex tempore, 21 December 2006
47. AMC v. St Lukes Hospital, Clonmel [2007] IEHC 65
48. D H v. The President of the Circuit Court and Doctor MG and Doctor RB and Doctor CF and Professor PMcK and the Mental Health Commission and the Mental Health Tribunal [2008] IEHC 160
49. Barnes, J-A, Mental health chief confident HSE will meet legal obligations, Irish Medical News, 2006; 40: 24
50. Shannon, J, Getting one's Act together, Medicine Weekly, 2006; 43: 20
51. Wrigley, M, A State of unpreparedness, Irish Medical Times, 2006; 40: XI
52. Whelan, D, Mental health tribunals: A significant medico-legal challenge, Medico-Legal Journal of Ireland, 2004; 10: 84-89: 87.
53. McGuinness, I, Tribunals to decide on legal representation, Irish Medical Times, 2006; 45: 1
54. O'Brien, C, Reviews for mental patients in detention, The Irish Times, 2006; 1 November
55. McGuinness, I, Consultants not to apply for mental health tribunal positions, Irish Medical Times, 2005; 10: 1
56. Vize, E, Pay threat to psychiatrists over mental health tribunals, Medicine Weekly, 2005; 41: 1
57. O’ Cionnaith, F, Consultants not responsible for harm under Act, Medicine Weekly, 2006; 43: 1
58. Ganter, K, Daly, I, Owens, J, Implementing the Mental Health Act 2001: What should be done? What can be done?, Irish Journal of Psychological Medicine, 2005; 22: 79-82
59. Kelly, BD, Lenihan, F, Attitudes towards the implementation of the Mental Health Act 2001, Irish Journal of Psychological Medicine, 2006; 23: 82-84
60. Ganter, K, Funding for Mental Health Act is a human rights issue, Medicine Weekly, 2005; 13: 26
61. Barnes, J-A, Red-letter day for mental health?, Irish Medical News, 2006; 41: 4
62. McGuinness, I, Tribunals revoke 12 per cent of detentions, Irish Medical Times, 2007; 43: 3
63. Barnes, J-A, Mental health tribunals cost €2.56m, Irish Medical News, 2007; 22: 12
64. Kelly, BD, The Mental Health Act 2001, Irish Medical News, 2009; 20: 29
65. NÌ Mhaol·in Kelly, BD, Irelandís Mental Health Act 2001: where are we now?, Psychiatric Bulletin, 2009; 33: 161-164
66. Lynch, P, GPs in revolt over psychiatric admissions, Irish Medical News, 2007; 39: 1
67. Baker, N, Psychiatrists seek to readmit patients released by tribunals, Irish Examiner, 2009; 7 April
68. Jabbar, F, Kelly, BD, Casey, P, National survey of psychiatrists' responses to implementation of the Mental Health Act 2001 in Ireland, Irish Journal of Medical Science, 2009, Mar 31 [Epub ahead of print] [DOI 10.1007/s11845-009-0320-x].
69. O'Donoghue, B, Moran, P, Consultant psychiatrists' experiences and attitudes following the introduction of the Mental Health Act 2001: a national survey, Irish Journal of Psychological Medicine, 2009; 26: 23-26
70. E v. Norway [1990] 17 EHRR 30
71. LR v. France [2002] Application No. 33395/96
72. Bartlett et al, 2007
73. Department of Health and Children, Review of the Operation of the Mental Health Act 2001: Findings and Conclusions, Dublin: Department of Health and Children, 2007
74. McGuinness, I., Penny-pinching delays, Irish Medical Times, 2007; 25: 1
75. Mental Health Commission, Report on the Operation of Part 2 of the Mental Health Act 2001, Dublin: Mental Health Commission, 2008
76. Z v. K and Anor [2008] IEHC 262
77. Mental Health Subcommittee, Practice note: Advising a mentally disordered client, Law Society Gazette, 2009; 103: 44-45
78. Eldergill, A, The best is the enemy of the good: The Mental Health Act 2001î, Journal of Mental Health Law, 2008, May: 21-37
79. H v. Clinical Director of St Vincent's Hospital & Ors [2009] IEHC 69
80. EH v. St. Vincent's Hospital & Ors [2009] IESC 46
81. Shannon, J, Mental Health Act is in breach of human rights, Medicine Weekly, 2006; 45: 1
82. Madden, E, Supreme Court critical of case taken against St Vincent's Hospital, Irish Medical Times, 2009; 28: 18
83. Eastman, E, Peay, J, Bournewood: an indefensible gap in mental health law, British Medical Journal, 1998; 317: 94-95
84. Morris, F, Mental health law after Bournewood: some legal and practical implications, Journal of Mental Health Law 1999, February: 41-47.
85. HL v UK (Bournewood) [2004] 40 EHRR 32
86. Kelly, BD, Community treatment orders under the mental Health Act 2007 in England and Wales: What are the lessons for Irish mental health legislation? Medico-Legal Journal of Ireland, 2009; 15: 43-48
87. Cummings, E, O'Conor, O, The SM Judgement and The Mental Health Act 2008, Irish Medical Journal, 2009; 7: 234
88. Craven, C, Signs of paternalist approach to the mentally ill persist, The Irish Times, 2009, 27 July
89. TOíD. v. HK and Others [2007] IEHC 129
90. WQ v. Mental Health Commission [2007] IEHC 154
91. FW v. Dept. of Psychiatry James Connolly Memorial Hospital [2008] IEHC 283
92. Madden, E, Judge commends action of hospital staff in detention, Irish Medical Times, 2008; 37: 28
93. McGuinness, I, More court appeals, Irish Medical Times, 2007; 24: 3
94. Blumenthal, S, Wessely, S, The cost of Mental Health Review Tribunals, Psychiatric Bulletin, 1994; 18: 274-276
95. Fitzsimons, K, Right to treatment should not be forgotten in psychiatry, Irish Medical News, 2007; 45: 4
96. Expert Group on Mental Health Policy, A Vision for Change: Report of the Expert Group on Mental Health Policy, Dublin: The Stationery Office, 2006
97. Guruswamy, S, Kelly, BD, A change of vision? Mental health policyî, Irish Medical Journal, 2006; 99:164-166
98. World Health Organization Ministerial Conference on Mental Health, Mental Health Action Declaration for Europe: Facing the Challenges, Building Solutions, Helsinki: World Health Organization, 2005
99. World Health Organization Ministerial Conference on Mental Health, Mental Health Action Plan for Europe: Facing the Challenges, Building Solutions, Helsinki: World Health Organization, 2005
100. Mudiwa, L, Ireland signs WHO declaration on mental health, Medicine Weekly, 2005, 3: 18
101. World Health Organization, Guidelines for the promotion of human rights of persons with mental disorders, Geneva: World Health Organization, 1996
102. World Health Organization, Mental health law: Ten basic principles, Geneva: World Health Organization, 1996
103. World Health Organization, WHO Resource Book on Mental Health, Human Rights and Legislation, Geneva: World Health Organization, 2005