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Mental Health and the Law   April 2012 / Darius Whelan
Ill   ?                              Insane ?Oslopolitidistrikt CC BY ND
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Mental Health Act 2001• E.g. establishes Mental Health Tribunals• Rights-based focus• Influenced by European Convention on...
Issues with 2001 Act• “Voluntary” patients• Paternalistic interpretation by courts• Sections on treatment are weak• Does n...
Mental Health Tribunals       Consultant            Chairperson:              Another       Psychiatrist        Barrister ...
Functions of MHTs• Main function: automatic review of detention of  patients detained involuntarily• Other functions:  – R...
Limited Powers• Tribunal has limited powers – only two  main choices: confirm or revoke order• Arguable that Tribunals nee...
Representation• Patient normally uses services of legal  representative assigned by Commission• Important protection for p...
Statistics• 1,771 MHT hearings in 2011• 145 (8%) revoked at hearing  – “Revoked” means MHT ordered patient’s release• 3,16...
Frequency of Reviews• While automatic reviews are desirable,  they do not necessarily fully comply with  Article 5• “The d...
http://mhc.thelearningcentre.ie
• Tribunal must confirm or revoke admission or renewal  order• Section 18 – Excusing Procedural Failings:• To affirm order...
Two schools of thought• One school: S.18 can only be used to excuse  minor failures of an insubstantial nature• Other scho...
MHTs – Proposals for Reform                              21
Amnesty - examples• Should be audits of MHT hearings• Person subject to detention > 3 months should  have right to apply t...
Mental Health and the Law (April 2012)
Mental Health and the Law (April 2012)
Mental Health and the Law (April 2012)
Mental Health and the Law (April 2012)
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Mental Health and the Law (April 2012)

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A general overview-level talk on mental health law from April 2012

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Transcript of "Mental Health and the Law (April 2012)"

  1. 1. Mental Health and the Law April 2012 / Darius Whelan
  2. 2. Ill ? Insane ?Oslopolitidistrikt CC BY ND
  3. 3. 3
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  7. 7. Mental Health Act 2001• E.g. establishes Mental Health Tribunals• Rights-based focus• Influenced by European Convention on Human Rights 1950• “Best interests” of service user (patient)• Autonomy / privacy / dignity / bodily integrity / information rights
  8. 8. Issues with 2001 Act• “Voluntary” patients• Paternalistic interpretation by courts• Sections on treatment are weak• Does not solve issues of wards of court and other issues of mental capacity• UN Convention on Rights of Persons with Disabilities 2006
  9. 9. Mental Health Tribunals Consultant Chairperson: Another Psychiatrist Barrister / Solicitor Person• Chairperson must have 7 yrs practice immediately before appointment• Psychiatrist may be retired psychiatrist employed by HSE or Approved Centre provided retired within 7 years. s.48(2)• Other person must not be in previous categories or be a doctor or nurse 12
  10. 10. Functions of MHTs• Main function: automatic review of detention of patients detained involuntarily• Other functions: – Role in decisions concerning psycho-surgery – Role in transfers to Central Mental Hospital• No role in following – Treatment / medication decisions – Criminal matters – separate Review Board 13
  11. 11. Limited Powers• Tribunal has limited powers – only two main choices: confirm or revoke order• Arguable that Tribunals need to have more extensive powers, e.g. to order conditional discharge; defer discharge until place available 14
  12. 12. Representation• Patient normally uses services of legal representative assigned by Commission• Important protection for patient’s rights• Training• Legal Aid Scheme + Terms and Conditions• Fees 15
  13. 13. Statistics• 1,771 MHT hearings in 2011• 145 (8%) revoked at hearing – “Revoked” means MHT ordered patient’s release• 3,163 involuntary admissions / renewals/ regradings• 1,397 (44%) revocations before hearing by Responsible Consultant Psychiatrist 16
  14. 14. Frequency of Reviews• While automatic reviews are desirable, they do not necessarily fully comply with Article 5• “The detainee’s access to the judge should not depend on the good will of the detaining authority.” – Rakevich v Russia (2003) 17
  15. 15. http://mhc.thelearningcentre.ie
  16. 16. • Tribunal must confirm or revoke admission or renewal order• Section 18 – Excusing Procedural Failings:• To affirm order, MHT must be satisfied that – patient is “suffering from a mental disorder” and – certain procedures have been complied with, or, “if there has been a failure to comply with [these procedures], that the failure does not affect the substance of the order and does not cause an injustice.” s.18(1)(a)(ii)• If revokes order, must direct that patient be discharged 19
  17. 17. Two schools of thought• One school: S.18 can only be used to excuse minor failures of an insubstantial nature• Other school: MHTs can excuse virtually any procedural defect, unless it is in reckless disregard of the statutory scheme 20
  18. 18. MHTs – Proposals for Reform 21
  19. 19. Amnesty - examples• Should be audits of MHT hearings• Person subject to detention > 3 months should have right to apply to MHT for review• If individual re-graded from involuntary to voluntary before hearing, MHT hearing should be held• Act should state that only minor failures of compliance … will be excused• Patient should have right to nominate person to attend MHT with them• Legal Rep should be appointed within 24 hours• Legal reps should have access to client records 22
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