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  IESC 46) Mental Capacity: Less supportive of Lunacy Regulation (Ireland) Act 1871 (see Re Francis Dolan  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
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  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  EWCP 1377 (COP) No specific protections on treatment
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