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Mental Health Act 2001:  Themes from Recent Case-Law

Mental Health Act 2001: Themes from Recent Case-Law






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Mental Health Act 2001:  Themes from Recent Case-Law Mental Health Act 2001: Themes from Recent Case-Law Presentation Transcript

    • Themes from Recent
    • Mental Health
    • Case-Law
    Darius Whelan UCC Mental Health Law Conference 26 Feb. 2010
    • Legal challenges only to be made if in patient’s best interests?
    • Voluntary Patients
    • Removals to Approved Centres
    • Power of Garda
    • Lack of interview by independent psychiatrist of responsible psychiatrist
    • Burden of Proof
    • Appeals to Circuit Court
    • Reviews if Order already revoked
    • Re-admission soon after discharge by MHT
  • Mental Health Commission Summary
    • Summary of Judgments delivered by the Superior Courts on the Interpretation of the Mental Health Act 2001
      • www.bit.ly/mhc-15
  • Legal challenges only to be made if in patient’s best interests?
    • The fact that s.17 of the 2001 Act provides for the assignment …of a legal representative for a patient …should not give rise to an assumption that a legal challenge to that patient’s detention is warranted unless the best interests of the patient so demand
      • E.H. v Clinical Director of St. Vincent's Hospital (2009) Kearns J.
  • Voluntary Patients
  • E.H. v St. Vincent’s (2009)
    • Patient initially admitted on involuntary basis, then remained in centre after involuntary detention ended
    • 12 days of detention in issue (Dec. 10-22)
    • Supreme Court – Patient was “voluntary” within meaning of s.2 of 2001 Act during that period
    • Act merely requires that person be receiving care and treatment in the approved centre
    • Kearns J.: H.L. v UK not relevant as in that case the patient was voluntary at the outset
  • M.McN. V Health Service Executive (2009)
    • Very similar to E.H. Case
    • Peart J. also emphasised hospital’s duty of care:
    • It would be grossly negligent for the hospital to bring patients to front door of hospital and say “off you go”
    • Doors could be locked for safety of patients
    • H.L. v UK was different as L. had been admitted on voluntary basis at outset
  • Removals to Approved Centres
    • S.13
    • If applicant unable to arrange person’s removal to approved centre, doctor may request clinical director to arrange for removal by approved centre staff [or by authorised persons]
      • Reference to authorised persons added by s.63 Health (Miscellaneous Provisions) Act 2009
    • Known as “assisted admission”
    • R.L. v St. Brendan’s (2008) Supreme Court
      • Application under Art.40.4 of Constitution
      • If s.13 had been breached by use of independent contractors, later detention would still be lawful.
    • E.F. v St. Ita’s (2009) O’Keeffe J.
      • Judicial Review
      • Judgment 2 years after removal
      • Removal was effected by independent contractors – Nationwide Health Solutions Ltd.
      • O’Keeffe J. declared that 2001 Act had been breached
      • Led to 2009 amendment of Act (see previous slide)
  • Power of Garda
    • S.12 – Garda may take person into custody if has reasonable grounds for believing person has Mental Disorder and there is serious likelihood of serious harm to self/others
      • (Note harm ground only – “need for treatment” ground cannot be used)
    • He/she or another Garda must apply forthwith to a doctor for a recommendation
    • M.Z. v Khattak (2008) Peart J.
      • Applicant had been taken into custody by Garda under s.12 but application for admission made by brother
      • Held lawful. Application commenced fresh procedure under s.9.
    • F.W. v James Connolly Hospital (2008) Hedigan J.
      • Detention by Gardaí made on being phoned by psychiatrist
      • Held lawful
    • S.C. v St. Brigid’s (2009) Dunne J.
      • Gardaí took applicant into custody under s.12
      • Psychiatrist later detained under “need for treatment” ground rather than “harm ground”
      • Detention held lawful. Gardai had reasonable grounds.
  • Lack of interview by independent psychiatrist of responsible psychiatrist
    • S.17 – Independent psychiatrist must interview responsible consultant psychiatrist (RCP)
    • D. v HSE [2009] IEHC 488
      • Independent psychiatrist attempted to telephone psychiatrist at centre but got no answer; he was told that she was ill
      • MHT was informed of this but decided that, as it had no doubt as to patient’s mental disorder, detention would be affirmed
      • Peart J. - Failure to interview the RCP before submitting report to tribunal was not such as to render report invalid for purpose of s. 17
      • Defect in report is not so fundamental as to invalidate report to extent that the tribunal could not be entitled to have regard to it.
  • Burden of Proof
    • Act does not deal specifically with question of burden of proof
    • Act state s Mental Health Tribunal must be satisfied of certain matters if it is to affirm order
    • Arguable s.18 effectively places burden of proof on approved centre to show that patient’s detention is justified.
    • If patient presented no evidence, his / her detention could not be continued unless evidence from hospital justifying detention
    • However, there will be an independent psychiatrist’s report, and so even if patient chose not to participate, MHT could detain him / her if psychiatrist’s report provided sufficient grounds
    • English legislation required patients seeking discharge to demonstrate to the tribunal that they did not meet the standard of confinement (s.72(1)(b) MHA ’83)
    • English courts held s.72(1)(b) was incompatible with the European Convention
      • R v MHRT N & E London ex p H ( 2001 )
    • Mental Health Act 1983 (Remedial) Order 2001: It is for those opposing the discharge to prove, or the tribunal to be satisfied, that the patient is suffering from mental disorder.
    • On appeal to Circuit Court: Burden of proof on patient – s.19(4)
    • Unclear whether this complies with ECHR
      • R v MHRT, N. & E. London, ex parte H. (2001)
      • Is an appeal stage different from first instance stage?
      • Reid v UK (2003) – Appeal courts should comply with Art.5(4)
        • See also Toth v Austria (1991); Navarra v France (1994); Rutten v Netherlands (2001)
    • T.S. v Mental Health Tribunal (2008) O’Keeffe J.
      • S.19(4) merely states that appellant must prove his/her case
      • However, this interpretation is questionable
      • Re ECHR case-law, O’Keeffe J. stated that all cases concerned first instance rather than appeals
      • However, once an appeal is available, the proceedings must ensure equality of arms
  • Appeals to Circuit Court
    • If patient has been released by time of hearing of appeal to Circuit Court, court cannot hear appeal
      • Han v President of the Circuit Court (2008), Charleton J.
      • Legislative purpose behind s.19 is to allow those patients who are still detained to have the condition of their mental health reviewed before the Circuit Court
      • Purpose is not to engage in an historical analysis
  • Reviews if Order already revoked
    • If patient discharged before MHT hearing, psychiatrist must notify patient of right to continue review (s.28)
    • If patient wishes to continue review, he/she must indicate this within 14 days of discharge
      • (16 patients did this in 2007)
    • Otherwise review will be discontinued
    • Unclear what purpose of s.28(5) is
    • Charleton J., obiter, in Han case:
      • Seems to involve historical review of whether patient had MD when admission order was made
    • Another issue: how can a patient who lacks capacity decide to seek a review within 14 days?
      • Referred to in passing by Peart J. in M.McN. v HSE
  • Re-admission soon after discharge by MHT
    • C.C. v Clinical Director St. Patrick’s (No.2) (2009) Hedigan J.
    • 5 January – MHT revoked admission order
      • (During tribunal hearing, patient indicated she would be willing to remain in centre on voluntary basis)
    • Jan. 15 – Patient re-detained under re-grading procedure in ss.23 & 24.
    • Hedigan J:
      • A MHT decision is not a bar for some indeterminate period to bona fide clinical judgements
      • Highly desirable that another tribunal should sit as soon as possible
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