Medical practitioners, including psychiatrists, must manage numerous variables in order to satisfy medical ethics and to act legally. Differences between medicine and the law may lead to poor communication and/or misunderstanding.¹ Psychiatrists’ concerns revolve around human action and disposition, the complex amalgam of genetic, experiential, affective and cognitive inputs. Lawyers, on the other hand, assume the presence of free will and responsibility for actions. Medical values governing acceptable action include autonomy, beneficence and confidentiality (ABC). 

Courts generally prefer legal principles, or systems of principles, to medical ethical systems. Exceptions occur when statements of principles have been incorporated into legislation, when Constitutional principles apply, or when the State has adopted international conventions.

Exceptions to confidentiality

The Irish Medical Council’s exceptions to confidentiality are in cases where:²

• Ordered by a judge in a court of law
• Ordered by a tribunal established by Act of Oireachtas
• When necessary to protect interests of patient
• When necessary to protect welfare of society
• When necessary to safeguard welfare of a third party.

Ascertainment of information from third parties, such as relatives, is subject to the same rules of confidentiality. The practitioner should strive to get the informed consent of the patient. Relatives and friends do not have an automatic right to information.² Medical information may be passed to another doctor who is caring for the patient, normally with the patient’s knowledge and consent.³ Recourse to the provisions of mental health legislation should be had in the case of psychiatric patients who are incompetent to give consent.²

Important international legal cases

Tarasoff v Regents of the University of California, 1976, raised the ethical question of an obligation to disclose relevant information to a named potential victim of a patient.⁴

W v Egdell, 1990 (Britain): in the case of real risk of physical harm, confidentiality can be breached to those whom it is necessary to tell so as to protect the public interest.⁵

The Irish Medical Council 2009 guidance³ accepted the Tarasoff decision: disclosure without a patient’s permission can be undertaken if failure to disclose places others at risk of harm. Otherwise confidentiality should be maintained. In the presence of incapacity, consider what is in the patient’s best interest.

The protective disclosures provisions of the Health Act 2007⁶ (as of March 2009) protect against penalisation and civil liability for health service employees who disclose – in good faith and on reasonable grounds – matters about which they are concerned to an authorised person or regulatory authorities. 

Before the Mental Health Act 2001⁷ there was no automatic right to review of detention. The only route whereby detention might be challenged was by an application to the High Court (habeas corpus) under Article 40 of the Irish Constitution.⁸ The Act allowed for a Mental Health Commission (MHC) to oversee the Act, mental health tribunals (MHTs) to check on involuntary admissions, and an Inspector of Mental Health Services.⁷ Tribunals consist of practising barrister or solicitor in the Chair, a consultant psychiatrist and a lay person (other than from the foregoing categories: not a registered doctor or nurse).

The Mental Health Act, 2001⁷

• Admission under S.3.1.a is because of an immediate (what the man on the Clapham omnibus would consider imminent) danger posed by the patient (because of an abnormal mental state) to self and/or others
• Admission under S.3.1.b must be likely to alleviate or benefit the patient ‘to a material extent’
• The patient must be kept reasonably informed of what is going on (admission, treatment): S.16(2) Notification form must be given to an involuntary patient stating date when an order ends and the proposed treatment – it is important that a copy of this notice be placed in the case notes (otherwise delays will ensue)
• Personality disorder, social deviance and substance abuse are not grounds for involuntary admission per se
• MHTs cannot look into activities of Gardaí: such powers are invested in the courts
• Gardaí may enter premises by force to make contact with a patient about whom they have serious concerns 
• Gardaí can be requested to provide an escort in order to transport a (detainable) patient to an approved centre
• Certain officers of the HSE, among others, are authorised to act as applicants
• Form 1, application for admission made out by a spouse or relative, includes civil partner as of December 2011
• ‘Spouse’ does not include someone living apart from the patient or on who is the subject of an application under the Domestic Violence Act, 1996
• The applicant must have observed the patient within 48 hours of signing the application
• A registered medical practitioner makes a ‘recommendation’ for involuntary admission of the patient within 24 hours of the application being made and the patient must arrive at the approved centre within seven days of the recommendation (S.10(5))
• The admitting consultant psychiatrist makes an admission order within 24 hours (extended from 12 hours under the 1945 legislation) of the arrival of the patient at the approved centre
• While the Act states that a consultant psychiatrist shall make an admission order or refuse to make such an order, it also states that ‘nothing’ in the foregoing will prevent him/her offering voluntary admission to the patient, ie. it is a clinical decision (this has been misunderstood)
• There is no provision under the Act to transfer an involuntary patient abroad
• A MHT can ‘cure’ minor irregularities (eg. minor mistake in date) in the paperwork under S.18(1) as long as it is in the patient’s best interests (S.4) to do so and as long as no injustice was done as a result of the irregularity but the tribunal cannot bend the law to the degree that ‘violence’ is done ‘to the words of the Act itself’
• Where the patient’s legal representative is unable to get the patient’s competent permission to read his file such permission may be granted by the sitting tribunal or by ‘the hospital or treating psychiatrist therein’.⁹

What is a voluntary patient? 

In the EH case (Supreme Court, May 2009) he/she is defined as someone who is receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order. He/she is not defined as a person who freely and willingly gives consent to an admission order. In the same case the Supreme Court stated that appeals to the courts based on a defect in an earlier period of detention should only occur when there was a gross abuse of power or where fundamental requirements were not met.¹⁰

The standard of proof required at MHT has been defined as: “...to a standard of a high level of likelihood as distinct from simply being more likely to be true.”¹¹ This falls short of ‘beyond a reasonable doubt’. The likelihood of physical and/or mental harm occurring must be regarded as ‘immediate’. Minor injury to the self (eg. scratches or a cigarette burn to the arm) does not qualify as being ‘serious’ whereas the same injury to a third party would qualify.

The MHC must be informed of all involuntary admissions. Patients must be given a written statement of their rights (S.16(2)).⁷ The MHT can either affirm or revoke the admission order. A MHT has considerable leeway concerning the conduct of a tribunal. Submissions may (rarely) be heard under oath.

Basic decisional powers of tribunals

MHTs can discharge the patient, allow the admission order to run its course, or extend the order by periods of 14 days: such an adjournment extends the review of the existing order but not the life of the order; the responsible consultant psychiatrist (RCP) must still complete an extension order in order to hold the patient in the approved centre

The RCP cannot revoke an order once a MHT sits. 

A patient (or solicitor) can appeal the findings of a tribunal to the Circuit Court. Such an application must be in writing and within 14 days of receipt of the findings/decision of a MHT. The sole function of the Circuit Court is to decide if the patient suffers from a mental disorder within the meaning of the Act on the day of the hearing. The Court cannot deliberate on an extinct order (revoked, expired or superseded by renewal order).

The fact that a patient must indicate a wish to leave the approved centre before S.23 of the Mental Health Act 2001 can be used may give rise to clinical difficulties in certain circumstances, eg. severe dementia or catatonic mutism.⁷ The HSE can apply to the District Court for authorisation to detain a child.

In 2009 the Law Reform Commission suggested that persons admitted and treated under the 2001 Act should have access to an independent advocate and a MHT (rather than the District Court) should review their admission and treatment.¹²

Renewal orders

When renewing orders the RCP should subtract one day in order to comply with Interpretation Act.¹³ The latter Act defines the first day of any order as ending at 24.00am hours (not a 24-hour day!).

Admission orders last for 21 days and can be renewed for up to three months; they can then be renewed for up to six months and thereafter for periods of up to 12 months. 

However, the RCP should state shorter periods of detention on forms when feasible and, where not feasible, should describe reasons in the case file. The exact date of termination on forms should be noted.

When an order is revoked by the RCP before a MHT sits, the patient/legal representative can, within 14 days, write to the MHC asking for a tribunal under S.28 of the Mental Health Act 2001.⁷

A close reading of that section will reveal that the role of the MHT is hard to tie down. Is it simply an opportunity for the patient to have his/her case aired? The form to be completed by the MHT asks that it, the tribunal, revoke or affirm the order. The order, however, does not exist as it has been revoked. Experience suggests that views vary on procedures. 

The time that the renewal order commences was addressed by the High Court and thereafter by the Supreme Court case of MD v St Brendan’s Hospital, MHC, MHT of 27 July, 2007.¹⁴ The court confirmed that a renewal order takes effect on the expiration of the previous order and not the date on which the order is signed. 

The Mental Health Act, 2008¹⁵ was pushed through the Dáil at the end of October 2008 because extensions of detention as stated on Form 7 (renewals) were deemed to be too imprecise (eg. a full 12 months might not be required to treat the patient) – precise periods with termination dates are required (even if guesstimates). 

A woman (SM) who had been admitted to St Patrick’s Hospital in Dublin challenged her detention in the High Court stating that she was being detained because of lack of suitable accommodation outside of hospital. Her legal team stated that the period of renewal was too imprecise: “not in excess of 12 months.” The judge found that she was not well enough to leave hospital. In response, a new Form 7 was created by the MHC. 

Cummings and O’Conor have suggested that the direct costs of the case (€993,377) could have provided supported accommodation for SM for 37 years!¹⁶

A tribunal’s decision concerning an admission must be made within 21 days.

If a defect in an order is not complained of at the relevant MHT it cannot subsequently be used in argument at a later MHT.

The RCP should normally ensure that his/her patients give free and informed consent to treatment – however, treatment can be given without consent if the patient is incapable of giving consent. Blood samples may be taken without the detained patient’s permission if considered essential for the patient’s care.¹⁷ The case involved tests required to safeguard against potentially lethal side-effects in a patient with paranoid schizophrenia and borderline personality disorder.

Psychosurgery requires written consent from the patient and authorisation from a MHT.

Experiences and attitudes post-Mental Health Act 2001

1.  A postal survey of 238 consultant psychiatrists in the Republic of Ireland (70% response rate ) found that:¹⁸

• 48% felt care of voluntary patients had deteriorated
• 32% felt care of involuntary patients had improved
• 69% stated involuntary patient status was being changed to avoid a tribunal
• 14% re-admit patients involuntarily just after a tribunal revocation
• 57% of placements saw reduced training of junior doctors
• 87% reported an increase in on-call service workload
• 23% reported an increase in service consultant complement.

A majority worry about not admitting patients with personality disorders or substance abuse per se as involuntary patients.

2.  A review of 2,254 admissions to the Waterford Mental Health Services from November 2006 to October 2009 found:¹⁹ 

• 130 or 5.8% involuntary admissions from the outset
• 66 (51%) of involuntary admission orders revoked by treating consultant
• 64 (49%) of involuntary admission orders reviewed by MHT
• Of those reviewed by MHT: 87.5% affirmed and eight (12.5%) revoked. Revocations were all on grounds other than absence of a mental disorder, eg. recommendation preceded application.

3. A national survey of 735 MRCPsych holders in the Republic of Ireand²⁰ examined views one year after full implementation of the 2001 Act (only 43.7% response rate) and found that:

• 84% were satisfied with training 
• 69.1% experienced an increase in workload 
• 26.8% reported reduced time with service users 
• 40.7% reported changed relationship with service users 
• 27.4% did not believe Act could be implemented. 

Other issues: adversarial tribunals, effects on doctor-patient relationship, and issues regarding minors.

4. A study of the impact of the 2001 Act on involuntary admissions in one unit in Ireland found:²¹

• No significant change in rate or duration of such admissions
• Involuntary admissions spend longer as voluntary patients than heretofore.

(Presumably status is changed before tribunals meet in many cases – such is the author’s experience.)

GP experiences of involuntary admissions under the Act²²

A national random sample provided by the Irish College of General Practitioners sent a questionnaire to 1,000 GPs. There were 568 returns (56.8%), 564 being usable. Out of these:

• 25% had not used the Act
• 50% felt confident completing paperwork
• 33% believed that the Act improved experience of admission for patient, family and GP.

The survey found that GPs were generally unhappy with patient transport arrangements (long delays).

Capacity to refuse treatment

In Fitzpatrick & Anor v K & Anor (2008) IEHC 104 (Irish High Court)²³ a female Jehovah’s Witness (K) booked into the Coombe Hospital as a Catholic and gave birth to a baby boy in September 2006. She suffered a postpartum haemorrhage but refused a blood transfusion. The High Court order allowed the hospital to give the transfusion. The hospital sought (at the court’s behest) a declaration that it was entitled to seek the order. 

Requirements involved in determining capacity were re-stated by the court: 

Adults have capacity to refuse treatment, but this is a rebuttable presumption. Cognitive ability has to be so impaired that patient doesn’t sufficiently understand the nature, purpose and effect of the treatment and the consequences of accepting/rejecting it in light of all available choices. Cognitive ability is so impaired that patient is incapable of making the decision to refuse because he/she does not understand and retain (briefly) the information about the treatment and consequences likely to follow refusal; does not believe the information given (especially that death is a likely outcome); and has not weighed the information, alternative choices and likely outcomes ‘in the balance’ in arriving at his/her decision. The doctor must tell the patient about the appropriate treatment, its risks/consequences, and available choices. The doctor must recognise (and note) if misunderstanding or misperception of the information might represent lack of capacity. An irrational decision or decision made for irrational reasons is NOT relevant to the assessment. Regard must be had to the gravity of the decision and the likely consequences.

Incapacity in the Republic of Ireland

Wardship (ward of court) 

Wardship was originally exercised by the Court of Exchequer, later passing to the Lord Chancellor, and now lies with the President of the High Court under the Lunacy Regulation (Ireland) Act 1871. Application (usually by a relative with two supporting medical affidavits) may be made to have the court appoint a representative to manage the affairs and provide for the welfare of a mentally incapacitated person (of unsound mind and unable to handle his/her affairs, eg. dementia). Wards of court are not subject to the ‘reception, detention and treatment regime’ of mental health legislation.²⁴ Medical interventions in such cases require the permission of the High Court.

However, emergency interventions are allowed, permission being retrospectively sought (via The Office of Wards of Court) as soon as is feasible: 3rd Floor, 15/24 Phoenix Street North, Smithfield, Dublin 7; Tel (01) 888 6189; Fax (01) 872 4063 (see www.citizensinformation.ie/categories/justice/courts-system/office_of_wards_of_court).

The Irish Medical Council (www.medicalcouncil.ie) states that if a patient with disability lacks capacity the clinician should consult parents/guardians/carers and, when relevant, consider getting a second opinion.³

Irish Mental Capacity Bill 2008²⁴

The main purpose of the Irish Mental Capacity Bill was to replace the existing wards of court system for adults with a modern statutory framework governing decision-making on behalf of people who lack capacity. The Bill replaces the Lunacy Regulation (Ireland) Act 1871, currently the chief legislation in this area. The biggest change in the new Bill is in relation to what exactly constitutes a lack of capacity. Its main points can be summarised as follows:

• Replaces wards of court system
• Only applies to adults
• Evidence level – balance of probabilities
• Capacity is the ability to understand nature/consequences of a decision in the context of available choices at the time the decision has to be made
• Lack of capacity signified by inability to understand/retain/weigh information relevant to the decision or to communicate decision – must be tested for in relation to the decision in question
• Doctor’s overriding duty – act in patient’s best interests
• Must presume capacity is present (even if person makes unwise decisions)
• Intervene only if necessary in particular circumstances
• Must make all practical steps to help patient decide first (supported decision-making is a right)
• Use least restrictive intervention
• Respect dignity, privacy, and autonomy
• Take account of known past/present wishes and views of interested (in patient’s welfare) others (no hierarchy of relationships/authority given)
• A patient’s decision can be transmitted to the treating clinician is any manner that suits the patient (gestures, sign language, written, verbal, a third party)
• If a person cannot be supported to make a decision the High Court or Circuit Court appoints a personal guardian to act as substitute decision-maker regarding property/affairs
• Certain decisions are reserved to the High Court, eg. withdrawal of artificial life-support, non-therapeutic sterilisation, and organ donation
• Independent Office of Public Guardian supervises court-appointed guardians – if no one is able or willing to be a guardian the office acts as guardian of last resort.

The capacity required to make medical decisions depends on the decision to be made.

According to Roberts et al: “Capacity, which must be subjected to a targeted assessment, cannot be assumed only from the diagnosis or from illness severity. Capacity may change over time (eg. mania settles) so that capacity may need to be reassessed. 

“While a patient might display an understanding of facts he/she may not appreciate that they apply to him/her, eg. ‘I am God and therefore it will not harm me – therefore I do not need treatment’.”²⁶

The decision arrived at is less important than the rationality of the process whereby the individual arrives at the decision. Should a patient defer completely to the physician’s (or other’s) judgement he/she should have his/her capacity to make such a waiver assessed and documented.

‘The Bournewood gap’ refers to the absence of procedural safeguards in UK law for a patient who lacked capacity and where carers and professionals disagreed as to correct management.

In R v Bournewood Community and Mental Health NHS Trust Ex PL an intellectually disabled man was taken into hospital informally (voluntary) against his carer’s wishes. The case eventually ended up in the European Court of Human Rights which ruled that the detention constituted deprivation of liberty under Article 5 of the European Convention on Human Rights.

It would have been better to have used the mental health legislation if the patient had a mental illness and not to admit as a voluntary patient when the person lacks capacity.²⁷

A similar dilemma exists in Ireland in the case of dementia sufferers who lack capacity who do not qualify (or cease to qualify) for involuntary admission under the Mental Health Act 2001 but who cannot be allowed to simply walk out of the hospital. Can they be placed in a nursing home without their consent (as often happens) or kept on as a ‘voluntary’ patient in a psychiatric facility (as sometimes happens)? 

S.4 (best interests) of the Act only applies to involuntary patients. In a retrospective study of 115 consecutive psychiatric admissions of people who lacked capacity to make treatment decisions, Owen et al found that 83% of those who regained capacity agreed retrospectively with the decisions made on their behalf.²⁸

References

1. Casey P, Craven C. Psychiatry and the Law. Dublin: Oak Tree Press, 1999
2. (Updated: Casey P et al. Psychiatry and the Law. Dublin: Blackhall Publishing, 2010
3. Medical Council. A Guide to Ethical Conduct and Behaviour. Sixth ed. Dublin: The Medical Council, Ireland, 2004
4. Tarasoff v Regents of the University of California, 1976
5. W v Egdell, 1990 (Britain) 
6. Medical Council. A Guide to Professional Conduct and Ethics for Registered Medical Practitioners. (www.medicalcouncil.ie) Dublin: The Medical Council, Ireland, 2009
7. The Health Act 2007. Protective disclosures. www.irishstatutebook.ie
8. The Mental Health Act 2001. www.irishstatutebook.ie
9. www.taoiseach.gov.ie/attached_files/.../Constitution%20of%20Ireland.pdf
10. EJW case, Peart J, November 2008)
11. EH case (Supreme Court, May 2009)
12. MR Case, High Court, 2007
13. 2009 Law Reform Commission 2009 
14. The Interpretation Act
15. MD -v- St. Brendan’s Hospital, MHC, MHT, 2007
16. Mental Health Act, 2008. www.irishstatutebook.ie
17. Cummings E, O’Conor O. Ir Med J 2009; 102: 234
18. High Court, July 2011 (McMenamin J).
19. O’Donoghue B, Moran P. Ir J Psychol Med  2009; 26: 23-26
20. Umedi APC et al. Ir Psychiatrist 2010; 11: 8-10 
21. Jabbar F et al. Ir J Med Sci 2010; 179: 291-294
22. Nwachukwu I et al. The Psychiatrist 2010; 34: 436-440
23. Kelly M et al. Ir Med J 2011; 104: 273-275
24. Fitzpatrick & Anor v K. & Anor (2008) IEHC 104 (Irish High Court)
25. O’Neill A-M. Wards of Court in Ireland. Dublin: First Law, 2004
26. Irish Mental Capacity Bill 2008. http://www.oireachtas.ie
27. Roberts LW et al. In: The American Psychiatric Publishing Textbook of Psychiatry. 5th ed. Hales RE et al, eds. Washington, DC: American Psychiatric Publishing, Inc, 2008
28. R v Bournewood Community and Mental Health NHS Trust Ex P.L. (1998)
29. Owen GS, David AS, Hayward P et al. Br J Psychiatry 2009 195(5): 403-407