Falling through the gaps, Dr Mary Donnelly

FALLING THROUGH THE GAPS?: FORMULATING Mental Health Law Reform: New Perspectives and Challenges Centre for Disability, Law REFORM IN A DUAL- and Policy, National University of Ireland, Galway June 23, 2012 Dr Mary Donnelly, MODEL SYSTEM Law Faculty, University College Cork

‘PROCESS’ TO DATE 1992: Paper on Mental Health 1999: White Paper: A New Mental Health Act 2001: Enactment of Mental Health Act April 2002: Commencement of Par t 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 Repor t: Vulnerable Adults and the Law 2008: Scheme of Mental Capacity Bill 2011: Announcement of Review of Mental Health Act 2001 201 2: Publication of Mental Capacity Bill – Promised 22 June 201 2 (yesterday!): publication of Interim Repor t of Steering Group on the Review of the Mental Health Act

IN THE MEANTIME … THE WORLD MOVES ON 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)

SUPPORTING INERTIA Po l it ic al Wi l l  Other distractions – but only from 2008  Few votes in mental health reform  Absence of high profile ‘law and order’ case Judi c i a l At t i t ude s  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

AN ALTERNATIVE VIEW OF THE PROCESS Mental Health Mental Capacity 1992: Green Paper on  2003: LRC: Law and the Mental Health Elderly 1999: White Paper: A New Mental Health Act  2005: LRC: Vulnerable 2001: Mental Health Act Adults and the Law: April 2002: MHC Capacity 2006: MHA commences  2006: LRC Report 2011: Review of MHA  2008: Scheme of Bill 2012: Publication of  2012: Publication of Interim Review Report Bill????????????????

PERIMETERS OF THE DUAL MODEL Mental Health Act Everyone else ‘Patients’: Compulsorily  ‘Voluntary’ inpatients Admitted  ~ 17,000 people p.a. ~2,000 people p.a. ~6,000 lacking capacity Tribunal Review of  High proportion long-stay Detention patients Second Opinion on  No reviews of detention Treatment or treatment

REFORMING IN A DUAL MODEL SYSTEM

THE RISKS

POLICY DRIVERS Mental Health Mental Capacity Best interests/rights  Rights Protection Public protection  Supported Decision- making Overtly limiting  Good on language Strong on procedural protections  Weak on delivery

FORMULATING REFORM: THE HUMAN RIGHTS PERIMETERS 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

REFORM OPTIONS 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

APPLYING THE MHA Advantages Disadvantages Neat  Limited suitability for non-objecting people (Probably) ECHR  Question re value of compliant - although tribunal hearing if person question re alternatives lacks capacity to instruct lawyer  Treatment protections come very late - 3 months for medication

DEPRIVATION OF LIBERT Y SAFEGUARDSQualifying Requirements Assessments Ove r 1 8 ; Suf fe r fro m a m e n t a l di s o rde r;  An age assessment La c k c a pa c i t y to de c i de a bo ut  A mental health a dm i ssion Adm i ssion m us t be i n h e r be s t assessment; i n te rest s;  A mental capacity S/ h e m us t n ot be i n e ligible fo r a dm i ssion be c a us e t h e a dm i ssion assessment; c o n fl ic t s w i t h a pre - ex i s t ing c o m pul sor y powe r un de r t h e M H A  A best interests S/ h e m us t n ot o bj e c t to a dm i s sio n o r to t re a t m e n t ( i n c luding t h ro ug h assessment; a n a dva n c e de c i s ion to t h i s e f fe c t o r t h ro ug h a c o ur t - a ppo i n te d  An eligibility assessment; de put y o r t h e do n n e e o f a l a s t i ng powe r o f a t to rn ey ) .  A no refusals assessment.

DOLS: THE PROBLEMS 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 Near y [2011] EWCP 1377 (COP) No specific protections on treatment

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

THE MHA INTERIM REPORT: KEY RECOMMENDATIONS 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 Directives Consider expansion of Advocacy – inc for children Stand alone provisions on children Removal of ‘unwilling’ from ss. 59 and 60 Procedural Recommendations around Tribunals

INTERIM REPORT: DEALING WITH THE DUAL MODEL 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

DEFINING ‘VOLUNTARY’ PATIENTS ‘Voluntary’ means: person who consents on his/her own behalf or with the support of others to admissionor On whose behalf a Personal Guardian appointed under the proposed capacity legislation consents to such admissionKey issue: what will the Personal Guardian’s powers/obligations be under the MCB?

PROTECTIONS FOR 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 suf ficient protection of the rights of individual Patients with fluctuating capacity: level of external oversight Inspectorate power of referral to Tribunal Information provision re legal rights

CHANGING STATUS: VOLUNTARY TO INVOLUNTARY 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

CONSENT AND INCAPACIT Y 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 suf ficient and no further protections will be required under mental health legislation’

END GAME 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

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Falling through the gaps, Dr Mary Donnelly

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