/ / IHRC calls for Mental Capacity Legislation and review of Mental Health Act 2001 to protect rights of Incapacitated Persons and Wards of Court

IHRC calls for Mental Capacity Legislation and review of Mental Health Act 2001 to protect rights of Incapacitated Persons and Wards of Court

The Irish Human Rights Commission (IHRC) today recommended to Government to introduce Mental Capacity legislation and review the Mental Health Act 2001 (2001 Act) to ensure the rights of Incapacitated Persons and Wards of Court are protected. These measures should now be taken to strengthen, protect and uphold the human rights of Incapacitated Persons and Wards of Court under Irish law, in line with the State’s obligations under Article 5 (right to freedom from arbitrary detention) of the European Convention on Human Rights (ECHR) and Article 12 of the new United Nations Convention on the Rights of Persons with Disabilities.

Dr Maurice Manning, President of the IHRC, stated: "Currently, Irish law does not fully conform to international human rights standards relating to the rights of Incapacitated Persons, Wards of Court and some children. For some time, mental health practitioners have called on the Government to introduce Mental Capacity legislation. This legislation should allow for an assessment of a person’s capacity to consent or object to their admission to a psychiatric institution. It is now time for that Bill to be published. Its publication would also clear the way for Ireland to ratify the UN Convention on the Rights of Persons with Disabilities."

Dr Manning continued "it is vital that with the introduction of Mental Capacity legislation, the Government should review the definition of "voluntary patient" under the Mental Health Act 2001. This would allow all people who have been declared as lacking legal capacity to make medical decisions, and who are considered to be in need of psychiatric detention, to be admitted in a similar manner to involuntary patients under the 2001 Act with all the safeguards necessary to ensure their lawful detention under the Constitution and Article 5 of the ECHR."

IHRC Chief Executive, Mr Éamonn Mac Aodha, stated: "The findings of the European Court of Human Rights have led the IHRC to conclude that the rights of Incapacitated patients and Wards of Court is an issue where Irish law needs reform now. There must be clearly identified criteria by which a person’s legal capacity can be determined. At the same time, the IHRC recognises that the majority of people voluntarily consenting to their admission in psychiatric institutions would continue to be categorised as voluntary patients following amending legislation in line with international best practice."

Mr Mac Aodha continued, "it is recognised that any increase in Mental Health Tribunal referrals arising from more patients being categorised as ‘involuntary’ will by definition increase the workload of mental health professionals. Consequently care should be taken to ensure that this workload is taken into account when planning for the care and treatment of patients and the resourcing of mental health institutions in order to ensure that mental health professionals receive appropriate support and resources to carry out their work."

In its submission to Government, the IHRC recommend the following changes for Irish law to conform to international human rights standards relating to the rights of Incapacitated patients, Wards of Court and some children.

The IHRC recommends:

1. The definition of a voluntary patient in the 2001 Act should be amended to include only those persons who have the capacity to make such a decision and who have genuinely consented to their admission to a psychiatric institution and continue to consent to same. Ideally, such amendment should occur at the same time as the enactment of a comprehensive Mental Capacity Bill.

2. The introduction of Mental Capacity legislation is required now so that any question of the person’s capacity would be referred for determination pursuant to appropriate mental capacity legislation, under an expedited procedure if necessary.

3. In implementing the Mental Capacity legislation care should be taken in assessing a person’s capacity to ensure that there is a presumption of capacity (rather than incapacity) and that referrals to Mental Health Tribunals are avoided where possible.

4. All persons who have been declared to lack legal capacity to make medical decisions, and are considered to be in need of psychiatric detention, should be admitted to approved centres in a similar manner to involuntary patients under the 2001 Act with all the ensuing safeguards necessary to ensure their lawful detention under the Constitution and Article 5 of the ECHR.

5. The proposed Mental Capacity Bill should be extended to include provision for the situation arising in approved and non-approved centres to specifically cover the following:

(a) Methods of Assessment of Capacity.

(b) Identification of the Criteria to be used when determining Capacity.

(c) Qualifications and expertise of the Assessor(s) of Capacity.

6. The proposed Mental Capacity Bill should include appropriate mechanisms to empower those with limited capacity to be involved in decisions regarding their mental health in as far as possible, in line with international standards including Ireland’s obligations under the Convention on the Rights of Persons with Disabilities and the ECHR.

7. The definition of "child" under section 2 of the 2001 Act be amended to refer to a person under sixteen years, such that a minor of sixteen years or over could be considered an involuntary patient within the meaning of the Act if they have capacity and object to their admission to an approved centre (see note on children below).

8. Section 25 of the 2001 Act be amended to ensure that a child, the subject of an application under the section, is given a full opportunity in accordance with their age and capacity, to participate in the proceedings and make their views known, with appropriate representation as needs be.

ENDS/

A spokesperson is available for comment.

For further information please contact

Fidelma Joyce, IHRC

Mob: 087 783 4939

Notes to Editor

As Ireland’s national human rights institution, the IHRC has a statutory remit to endeavour to ensure that the human rights of all persons in the State are fully realised and protected, in law, in policy, and in practice. Its functions include keeping under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights, and making such recommendations to the Government as it deems appropriate in relation to the measures which the IHRC considers should be taken to strengthen, protect and uphold human rights in the State under Section 8(d) of the Human Rights Commission Act 2000 including with reference to the State’s obligations under the ECHR.

Mental Health Act 2001

The Mental Health Act 2001 was enacted further to the "friendly settlement" agreement reached between the State and the applicant in the proceedings Croke v Ireland1 before the European Court of Human Rights. The case had challenged the provisions of the Mental Treatment Act 1945 and the Long Title to the 2001 Act thus refers to the introduction of a range of new protective mechanisms which it was felt would bring the State into substantial conformity with its obligations under the ECHR. This is recognised by the Mental Health Commission where it states;

“In fulfilment of civil liberty requirements the Mental Health Act 2001 provides for the establishment of Mental Health Tribunals….The important safeguards recognised and enshrined in international protocols are now provided for in Irish law."2

In general terms, the 2001 Act provides for a periodic independent review of all involuntary admissions to psychiatric units (approved centres) by Mental Health Tribunals.3 In addition the Act provides for the development of quality standards for psychiatric care, and the monitoring of compliance with those standards by an Inspector of Mental Health Services. Both the Inspector and the Tribunals are established under the auspices of the Mental Health Commission, which is an independent statutory body.

However, under the 2001 Act, voluntary patients do not have their admission to an approved centre independently reviewed. This approach complies with the common sense understanding that a voluntary patient is not being detained against their will, and has given consent to their treatment and so do not require an independent mechanism to protect their right to liberty. However the IHRC is concerned that the definition of a voluntary patient under the 2001 Act is not sufficiently precisely drawn to protect the right to liberty of all those who may be admitted to an approved centre.

Section 2 of the Mental Health Act 2001 defines a voluntary patient as follows:

“a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order".

The Act therefore defines a voluntary patient by way of default; by what he or she is not, rather than assessing the capacity of the patient to consent to the admission.

In 2004 in the case of HL v The United Kingdom4, the European Court of Human Rights signalled that psychiatric patients who were "incapacitated compliant patients" should receive similar protections as involuntary patients to guard against unlawful detention. Following this Judgment, the UK amended its law to allow for additional safeguards for such patients. It also introduced the Mental Capacity Act 2007.

In April 2009, the Irish Supreme Court dismissed a habeas corpus application that an incapacitated compliant patient had been held in unlawful detention.

Wards of Court

Jurisdiction over Wards of Court is exercised by the President of the High Court and by the Circuit Court. The powers of the High Court in relation to wards and their estates are set out in the Lunacy Regulation (Ireland) Act 1871 and the procedure in relation to applications is governed by Orders 65 and 67 of the Rules of the Superior Courts. The Wards of Court system originated in the crown prerogative for the purpose of acting as guardian of persons with disabilities – the parens patriae or guardian of the people.

The 1871 Act does not confer jurisdiction to take a person into wardship but rather regulates it. The 1871 Act, while it recognises that wardship may be necessary because the person is considered to be incapable of managing his person or property, deals mainly with the power of the court over property issues. For example, it does not deal with the issue of withholding of medical treatment. There is no legislation dealing with how the court is to determine issues related to the person, as opposed to the property, of the ward. However the effect of wardship is to deprive the person of their legal capacity to make decisions, whether in relation to property or their own private person. In the Matter of a Ward of Court (Withholding Medical Treatment) (No. 2)5 Chief Justice Hamilton gave a summary of the effect of wardship on the person:

“When a person is made a Ward of Court, the Court is vested with jurisdiction over all matters relating to the person and estate of the Ward and then the exercise of such jurisdiction is subject only to the provisions of the Constitution; there is no statute which in the slightest degree lessens the court’s duty or frees it from the responsibility of exercising that parental care… In the exercise of this jurisdiction the court’s prime and paramount consideration must be the best interest of the ward."6

As stated a Ward of Court is legally deprived of all decision making capacity by virtue of that status, and in relation to treatment in an approved centre, they are essentially in a similar position to an incapacitated compliant patient, in that they are excluded from the procedural protections in relation to involuntary detention under the 2001 Act.7

In 2008, the Scheme of the Mental Capacity Bill 2008 was published and the IHRC provided its Observations to Government on the Scheme in November 2008. The main purpose of the 2008 Scheme is to reform the existing Wards of Court system, insofar as it applies to adults, and replace it with a modern statutory framework governing decision making on behalf of persons who lack capacity.8 This would allow the State to move forward to ratification of the United Nations Convention on the Rights of Persons with Disabilities which it has signed.

As matters currently stand, wards of court still remain outside the protections of the Mental Health Act 2001, and the proposed capacity legislation, although signifying a considerable improvement in human rights terms on the wards of court system, may still not fully address the concerns outlined by the IHRC as set out in its policy paper published today. The recommendations in this paper should be read in conjunction with the recommendations in the IHRC’s Observations on the Scheme of the Mental Capacity Bill 2008.

Children

Under section 2 of the Mental Health Act 2001, "child" is defined as a person under 18 years of age. Section 25 of the Act sets out the procedure for the involuntary admission of children and it is clear from the scheme of the Act that children are deemed to lack capacity until they reach eighteen years of age.

In relation to the definition of voluntary and involuntary patient in the Mental Health Act 2001, it appears that children, irrespective of their stage of maturity or capacity also fall outside these strict definitions. As section 25 only refers to the HSE making an application, it is otherwise within the discretion of the child’s parent or guardian whether they will be admitted as a voluntary patient, and whether or not the child objects to such an admission is not a consideration. In addition, where it is the HSE that makes the application for an involuntary admission Order, although the possibility of hearing the child is not excluded by the terms of the legislation, it is unclear what safeguards are in place to ensure that the views of the child are taken into account by the Court. There were eight involuntary admissions of children to approved centres in 2008, which was an increase of four from the previous year. Of the eight admissions, six were to adult units. In 2007 all involuntary admissions of children were to adult units. Two hundred and forty seven (247) of 392 overall admissions of children in 2008 were to adult units and 278 of those admissions concerned children of 16 and 17 years of age. Within that category, 223 were admitted to adult units.9

Footnotes

  1. Croke v Ireland (Application No. 33267/96) 21 December 1996.
  2. Reference Guide Mental Health Act 2001, Mental Health Commission at p.3.
  3. Children are dealt with separately under section 25 of the Act.
  4. HL v The United Kingdom (application no. 45508/99) 5 October 2004.
  5. In the Matter of a Ward of Court (Withholding Medical Treatment) (No. 2) 1996 SC 2 IR 100.
  6. At page 106.
  7. For a further discussion of capacity and the law see; Law Reform Commission, Report on Vulnerable Adults and the Law, (LRC 83 – 2006), 2006. This Report provided detailed recommendations for the enactment of new capacity legislation.
  8. Press Release of the Department of Justice, Equality and Law Reform, "Minister Ahern Announces Proposals for a Mental Capacity Bill", (15 September 2008), available at www.justice.ie.
  9. Mental Health Commission Annual Report 2008, at pp. 29-31.