A talk at a Royal Academy of Medicine in Ireland event, Cork, February 2013. This talk concentrates on selected case-law from 2010 to early 2013.

1. IMPLICATIONS FOR PSYCHIATRISTS OF
CASE-LAW ON THE MENTAL HEALTH ACT
2001
1 Darius Whelan, Faculty of Law, UCC
RAMI, Cork, Feb. 2013

2.  Cases 2010-2013:
 “Voluntary” or not?
 Can blood samples be taken?
 Consent Issues
 Re-grading: Voluntary to Involuntary
 “Examination” by doctor prior to admission
 Leave for civil proceedings – s.73
 Interim Report of Steering Group on Review of
Mental Health Act
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3. “VOLUNTARY” OR NOT?
P.L. v Clinical Director of St Patrick’s University Hospital – 2
judgments in 2012
 Mr. L. was involuntary, then voluntary
 Special Care Unit – locked ward
 Expressed a desire to leave on a number of occasions,
 Tried to jump over garden wall on three occasions.
 Forcibly restrained 30 times.
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4.  First judgment :
 Peart J. - “Voluntary” patient need not have consented
to their admission.
 Even if patient indicates wish to leave, that doesn‟t
mean that patient must be re-graded under ss.23/24.
 Consultant or other staff can talk to patient; reassure
him; encourage him to stay
 Clinicians must be permitted a wide margin of
appreciation in how they might consider bets interests of
patient served
 Very deferential to medical opinion
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5.  Second judgment:
 Mr L. sought to raise issues under European
Convention on Human Rights (ECHR)
 Peart J. – Mr L. had capacity to consent, and did
consent, to his voluntary status in the hospital
 Therefore he did not have standing to challenge Act on
basis of how it might apply to other persons who did not
have capacity
 This case was different from H.L. v UK and M. v Ukraine
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6. CAN BLOOD SAMPLES BE TAKEN?
Health Service Executive v M.X. (2011)
 Ms. X. was an involuntarily patient at the CMH.
 The treating staff sought to obtain blood samples, to
ensure the medication did not have adverse side effects
 Ms X resisted the attempts by staff to obtain these blood
samples.
 Medical evidence – she did not have the capacity to
make decisions with regard to her medical treatment.
 Mac Menamin J. - Section 3 – in referring to “treatment”
(defined in s.2) - allows for a medical procedure which
“is ancillary to and part of the procedures necessary to
remedy and ameliorate [the patient‟s] mental illness or
its consequences”
… Cont‟d …. >>>
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7.  Word “ treatment‟ is ambiguous and is capable of
being interpreted broadly or narrowly.
 Purposive interpretation of Mental Health Act.
 Intent of Oireachtas in Act is to give priority to
patient‟s life and health (see s.57).
 It would be absurd that those treating the patient to
restore her health would be precluded from taking
measures necessary to safeguard her life.
 As Ms X lacked the capacity to make decisions in
accordance with Act, Court must apply an objective
test as to what is in her best interest.
 No evidence that her wishes would be otherwise if
she had full capacity. 7

8. APPLIED TO A CHILD
 The finding was applied to a child detained under s.25 in Health Service
Executive v J.M. (2013)
 15-year-old girl who had been detained under s.25 of 2001 Act in Merlin Park
hospital, Galway.
 She was being administered medication without her consent. Could a blood
sample also be taken?
 Blood sample was needed to test for possible side-effects of medication.
 HSE sought court order authorising the taking of the blood sample.
 Girl's parents supported the taking of the sample.
 Birmingham J. granted the order sought.
 He relied on HSE v MX and extended this to a child.
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9. 2ND M.X. JUDGMENT – CONSENT ISSUES
 In November 2012, Mac Menamin J. issued a second
judgment in the M.X. case
 He found that s.60 of the 2001 Act was not unconstitutional
and did not breach ECHR.
 In light of the Convention on the Rights of Persons with
Disabilities (CRPD), s.60 must be interpreted in a manner
which grants the person a right to an assisted decision
making process.
 He acknowledged that paternalistic nature of Act had been
emphasised in cases such as E.H., but he said this case was
different as it was about treatment rather than liberty
(para.59).
 Key paragraph -
 "73. I believe a constitutional reading of s. 60 of the Act of
2001 now requires that this range of rights must be
recognised at the constitutional as well as the legal level,
especially if the present application of that legal provision
does not vindicate those rights „as far as practicable‟ ….” 9

10.  [Remainder is paraphrased here : ]
 Constitutional protections must act as counterweight to nature
of incursion into fundamental constitutional rights.
 Professor Kennedy‟s evidence establishes that every effort is
made to engage a patient in the decision-making process, and
that when a patient regains sufficient mental capacity, they will
again be empowered to make decisions regarding their
treatment, including regained ability to give or withhold
consent.
 Why then should the voice of a patient not be heard, and if not
by the patient, then through a representative?
 This was not a situation where the plaintiff had family
members to speak for her. Such a situation may arise in other
cases.
 What is necessary is to achieve the maximum protection
which is 'practicable'.
 If patient lacks capacity, it follows that patient should, where
necessary, be assisted in expressing their view as part of the
decision-making process?
 It cannot be said that such a process is impractical.
 Constitutional duty involved here is a positive one. 10

11.  Mac Menamin J. - Form 17, which deals with
medicine for longer than three months, may need
to be reviewed as it does not contain a space to
record the patient's views.
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12. RE-GRADING – VOLUNTARY TO INVOLUNTARY
 B.F. v Clinical Director of Our Lady’s Hospital,
Navan (2010)
 Voluntary patient may be discharged with a view to re-
admission using involuntary procedure
 Mr F. did not indicate intention to leave, so ss.23/24
could not be used
 Hospital wanted to change status to involuntary so that
he could be transferred to CMH, which only takes
involuntary patients
 Peart J.: Staff acted in F‟s best interests
 Once criteria in s.3 are satisfied, person may be
admitted on involuntary basis even if they wish to stay
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on voluntary basis

13. “EXAMINATION” BY DOCTOR PRIOR TO ADMISSION
X.Y. v Clinical Director of St Patrick’s University Hospital (2012)
 Doctor observed woman in a school park at a distance.
 It was argued that her detention was unlawful as examination
was inadequate.
 Hogan J. - the subsequent examination by the psychiatrist at
the hospital had been adequate, and if that examination is
adequate, it forms the basis for the detention rather than the
one by the doctor.
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14.  But he said:
 The fact that s. 10(2) envisages that a registered medical practitioner can carry out
an examination without informing the patient where the doctor concludes that this
"might be prejudicial to the person's mental health, well-being or emotional
condition" necessarily suggests that an observation of the patient from a distance
can - at least in some circumstances - also constitute a "personal examination" for
this purpose, not least where (as here) the registered medical practitioner is very
familiar with the patient's clinical presentation.
 It was unnecessary to decide this question
 Comment: s.10(2) requires that there must be a face to face
examination as defined in s.2(1); the doctor just doesn‟t have to say why
the examination is taking place.
 Hogan J. glosses over the wording of s.10(2) as it only talks about not
telling the person the purpose of the examination; it does not talk about
carrying out an examination without telling them in a general sense.
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15.  S.73
 Leave (permission) of the High Court is required before
civil proceedings are brought in respect of an act
purporting to have been done in pursuance of the Act
 Section is now of doubtful constitutionality following a
ruling concerning a similar section (with different
wording) in the 1945 Act – Blehein v Minister for Health
& Children (2008)
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16. LEAVE TO SUE HOSPITAL GRANTED
A.L. v Clinical Director of St. Patrick’s
Hospital (2010)
 Mental Health Commission had failed to
convene tribunal and therefore patient had
no review for six months.
 Administrative error. Renewal order faxed
to Commission but nobody in Commission
had taken proper action.
 Could hospital be sued as well?
 Ms L. argued – Hospital was on notice that
there was a problem as no tribunal took
place
 Clarke J – Ms L. had an arguable point
that hospital had been negligent as well
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17. LEAVE NOT GRANTED
M.P. v HSE (2010)
 Ms P. said she was subject to torture by the doctors and
ward nurses; Department of Justice had contacted her
landlord and her neighbours with the intention of turning
them against her; national broadcasters were conspiring
with HSE etc. to “stitch-up” diagnosis of schizophrenia.
 Mac Menamin J. found on facts that leave should not be
granted
 S.73 should be interpreted in proportionate manner
 Reviews case-law on “frivolous or vexatious” claims
 Finds Ms P‟s case to be both frivolous & vexatious and
lacking evidence of bad faith / want of reasonable care 17

18. LEAVE GRANTED
A.M. v Kennedy (2013)
 In 2006, detention had been extended (under 1945 Act) for six months from
18/8/06.
 (Expired on 17/2/07.)
 But on 19/2/07 renewal order was made (based on mistaken interpretation of
law).
 It was believed that order made on 18/8/06 could not take effect until 24/2/06 [as last
order had started on 24/2/06] and would then last six months. To avoid overlaps.
 2007 – This was found to be unlawful
 Ms. M. now suing for damages
 HSE and others argued: the renewal was a deliberate act, made bona fide
(based on mistaken interpretation of law). So not negligent.
 O‟Malley J. did not accept this argument. Would confer broad immunity in
these cases.
 O‟Malley J. granted leave.
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19.  Interim Report of the Steering Group on the Review of
the Mental Health Act 2001 (2012)
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20.  Act should be re-focused away from best interests in order to
enhance patient autonomy
 Key principle should be autonomy and self-determination
 Admitting clinician should be required to certify that it is not
possible for the person to receive the necessary care and
treatment in the community [implementing the least restrictive
principle]
 Significant intellectual disability should not be grounds for
involuntary detention
 Treatability should perhaps apply across the board [principle of
reciprocity]
 “Or” between s.3(1)(a) and (b) should be changed to “and/or”
 24 hour initial detention should be reduced to 12 hours. A
psychiatrist would need to examine the person within 12 hours.
There should be no treatment during those 12 hours.
 Longest renewal order should be 9 months (down from 12 20
months)

21.  Patient should be able to nominate another person
to attend the tribunal with them, e.g. a family
member, friend or advocate
 If the patient has capacity to refuse a tribunal, this
should be respected. [Who decides on capacity? ]
 Review of role of independent psychiatrist is
needed.
 Voluntary patients should be voluntary in all
respects – should be informed of their common law
rights to give or withhold consent and to leave the
centre
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22.  Sections 23 and 24:
 UN Committee against Torture – 2011 – more clarity needed
on this.
 On admission as a voluntary patient the informed consent of
the patient to admission and a course of treatment should be
required.
 If patient refuses, the admission should not proceed. Where
voluntary patient refuses all treatment they should be
discharged.
 If voluntary patient wishes to leave, they should be allowed to
do so. However if staff believe he/she is a risk, the person
should be detained for 12 hours. Authorised Officer (AO)
should be called. If AO wishes, can then make application for
involuntary admission in normal way to medical practitioner
who is not member of staff of approved centre.
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23.  Act should state person is presumed to have capacity to make
decisions in relation to admission and treatment.
 Where reasonable grounds to believe patient lacks capacity,
capacity should be assessed.
 Person may either have capacity, have fluctuating capacity
(requires support) or lack capacity (Consent can be provided by
Personal Guardian).
 Person should get supports necessary to assist them in making
their decision. (applying proposed capacity legislation).
 Substituted decision making should be applicable only as last
resort.
 Have regard to patient‟s known will and preferences.
 Assessment of capacity should be by an independent mental
health professional.
 For patients with a Personal Guardian, capacity legislation will
provide sufficient protection.
 Where Inspector has concerns regarding a voluntary patient,
he/she should be able to refer the case to a tribunal
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24.  UN Convention on Rights of Persons with Disabilities (2006) - CRPD
 Art.14 – Existence of a disability shall in no case justify a deprivation of
liberty
 Office of High Commissioner for Human Rights: Grounds for detention
must be de-linked from disability
 When UK ratified Convention, it did not change its mental health
legislation
 Note ECtHR has referred to CRPD as basis for existence of European
and universal consensus on need to protect persons with disabilities
from discriminatory treatment
 Glor v Switzerland (2009)
 Affected reasoning in M.X. v HSE (second judgment)
 How will conflict between art.5 ECHR and art.14 CRPD be resolved?
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25. d.whelan@ucc.ie
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