Falling through the gaps, Dr Mary Donnelly
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Transcript of Falling through the gaps, Dr Mary Donnelly
M e n t a l H e a l t h L a w Re f o r m : N e w Pe r s p e c t i v e s a n d C h a l l e n g e s
C e n t r e f o r D i s a b i l i t y , L a w a n d Po l i c y , N a t i o n a l U n i v e r s i t y o f I r e l a n d , G a l w a y
J u n e 2 3 , 2 0 1 2 D r M a r y D o n n e l l y ,L a w Fa c u l t y , U n i v e r s i t y C o l l e g e C o r k
FALLING THROUGH THE GAPS?:
FORMULATING REFORM IN A DUAL-
MODEL SYSTEM
1992: Paper on Mental Health 1999: White Paper: A New Mental Health Act 2001: Enactment of Mental Health Act April 2002: Commencement of Part of MHA and Establishment of
Mental Health Commission 2003: Law Reform Commission Consultation Paper: Law and the
Elderly 2005: Law Reform Commission Consultation Paper: Vulnerable
Adults and the Law: Capacity Nov 2006: Commencement of Mental Health Act 2001 in full Dec 2006: Law Reform Commission Report: Vulnerable Adults and
the Law 2008: Scheme of Mental Capacity Bil l 2011: Announcement of Review of Mental Health Act 2001 2012: Publication of Mental Capacity Bil l – Promised 22 June 2012 (yesterday!): publication of Interim Report of
Steering Group on the Review of the Mental Health Act
‘PROCESS’ TO DATE
Expansion of ECHR jurisprudence
Convention on the Rights of Persons with Disabilities Inception Drafting Negotiations Agreement Commencement Signature
By Ireland (and 152 other states) Ratification
By 114 states (not including Ireland)
IN THE MEANTIME … THE WORLD MOVES ON
Polit ical Wil l
Other distractions – but only from 2008
Few votes in mental health reform
Absence of high profi le ‘law and order’ case
Judicial Att itudes
Mental Health: Generally supportive of ‘the overall scheme and paternalistic intent of the legislation’ (Kearns J. in EH v St Vincent’s Hospital [2009] IESC 46)
Mental Capacity: Less supportive of Lunacy Regulation (Ireland) Act 1871 (see Re Francis Dolan [2007] IESC 26) but no decisive kick
Reluctance to engage with ECHR
SUPPORTING INERTIA
Mental Health1992: Green Paper on
Mental Health1999: White Paper: A
New Mental Health Act2001: Mental Health Act April 2002: MHC2006: MHA commences2011: Review of MHA2012: Publication of
Interim Review Report
Mental Capacity
2003: LRC: Law and the Elderly
2005: LRC: Vulnerable Adults and the Law: Capacity
2006: LRC Report2008: Scheme of Bill2012: Publication of
Bill????????????????
AN ALTERNATIVE VIEW OF THE PROCESS
Mental Health Act
‘Patients’: Compulsorily Admitted
~2,000 people p.a.
Tribunal Review of Detention
Second Opinion on Treatment
Everyone else
‘Voluntary’ inpatients
~ 17,000 people p.a.~6,000 lacking capacity
High proportion long-stay patients
No reviews of detention or treatment
PERIMETERS OF THE DUAL MODEL
REFORMING IN A DUAL MODEL SYSTEM
THE RISKS
Mental Health
Best interests/rights
Public protection
Overtly limiting
Strong on procedural protections
Mental Capacity
Rights Protection
Supported Decision-making
Good on language
Weak on delivery
POLICY DRIVERS
ECHR: Deprivation of Liberty Procedural mechanism required: HL v United Kingdom
[2005] 40 EHRR 32 Positive Obligation on State: Stork v Germany (2005) 43
EHRR 96 Requirement to consider alternatives: Stanev v Bulgaria
(2012) ECHR 36760/06
CRPD Equal right to liberty and security of the person: Art 14 Equal right to Live in the Community: Art 19 Right to Equal Recognition before the law: Art 12
Includes a Right to supported decision-making
FORMULATING REFORM: THE HUMAN RIGHTS PERIMETERS
Apply the MHA to all admissions of people lacking capacity
Imitate England/Wales Deprivation of Liberty Safeguards
Normative shift to patient-centred assessment of reform
REFORM OPTIONS
Advantages
Neat
(Probably) ECHR compliant - although question re alternatives
DisadvantagesLimited suitability for
non-objecting people
Question re value of tribunal hearing if person lacks capacity to instruct lawyer
Treatment protections come very late - 3 months for medication
APPLYING THE MHA
Qualifying Requirements
Over 18; Suff er from a mental disorder; Lack capacity to decide about
admission Admission must be in her best
interests; S/he must not be inel igible for
admission because the admission confl icts with a pre-existing compulsory power under the MHA
S/he must not object to admission or to treatment ( including through an advance decision to this eff ect or through a court-appointed deputy or the donnee of a lasting power of attorney).
Assessments
An age assessmentA mental health
assessment; A mental capacity
assessment; A best interests
assessment;An eligibility
assessment;A no refusals
assessment.
DEPRIVATION OF LIBERTY SAFEGUARDS
A technical solution to a human rights problem
Complex, confusing, lack of understanding
New gaps created
Limited role for representative - Clear power imbalance: see London Borough of Hillingdon v Neary [2011] EWCP 1377 (COP)
No specific protections on treatment
DOLS: THE PROBLEMS
STANDPOINT
SOME SUGGESTIONS
Seek to avoid the dangers of technicalities
Enhance the functions of the representative: Everyone needs someone in their corner
Introduce specific oversight measures on ECT/long term medication
Develop support framework
Rights-Based Approach with Right of Autonomy/Self-determination as key
Increase in focus of inspectorate – including community based care
Recovery as a guiding principle Introduction of Mental Health Advance DirectivesConsider expansion of Advocacy – inc for childrenStand alone provisions on childrenRemoval of ‘unwilling’ from ss. 59 and 60Procedural Recommendations around Tribunals
THE MHA INTERIM REPORT: KEY RECOMMENDATIONS
Anticipation that many of shortcomings of MHA 2001 re capacity will be addressed
Steering Group ‘met with’ Department of Justice and Equality Two meeting: 16 Sept 2011 and 20 Jan 2012
Shared Recognition of need to ‘dovetail’ with Mental Capacity Bill
INTERIM REPORT: DEALING WITH THE DUAL MODEL
‘Voluntary’ means:
person who consents on his/her own behalf or with the support of others to admission
or On whose behalf a Personal Guardian appointed under the proposed capacity legislation consents to such admission
Key issue: what will the Personal Guardian’s powers/obligations be under the MCB?
DEFINING ‘VOLUNTARY’ PATIENTS
No need for external oversight where patient has capacity and consents
Patients with a Personal Guardian: Protections provided under capacity legislation will provide suffi cient protection of the rights of individual
Patients with fl uctuating capacity: level of external oversight
Inspectorate power of referral to Tribunal
Information provision re legal rights
PROTECTIONS FOR VOLUNTARY PATIENTS
Should not be undertaken lightly
Acceptance of need for treatment should be implicit in voluntary admission
Voluntary patients should be allowed leave – subject to 12 hour holding power
CHANGING STATUS: VOLUNTARY TO INVOLUNTARY
Patients who are ‘unable’ to give consent – needs examination light of capacity legislation
‘The Group is hopeful that the protections provided to patients under that legislation will be suffi cient and no further protections will be required under mental health legislation’
CONSENT AND INCAPACITY
Beware empty rhetoric
Details matter
What is going to be delivered?
Importance of holding elected representatives to account
Law reform is not the end – Monitoring Matters
END GAME