1. Treatment for Mental Disorders and Protection of Patients’ Rights Mary Donnelly Law Faculty, University College Cork Centre for Criminal Justice and Human Rights Mental Health and Human Rights Seminar 25 October 2007

2. Outline Treatment for Patients under the MHA 2001 Treatment for “voluntary” patients Constitutional Rights –Autonomy, Dignity, Bodily Integrity, Freedom from Inhuman and Degrading Treatment ECHR –Article 3 (Freedom from Inhuman and Degrading Treatment) –Article 8 (Right to Private and Family Life) –Article 5 (Right to Liberty)

3. International Principles –UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (General Assembly Resolution 119, 1991) –Recommendation 2004(10) of the Committee of Ministers to Member States Concerning the Protection of the Human Rights and Dignity of Persons with Mental Disorders –The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights)

4. The Statistics: MHC Annual Report 2006, p 51 Legal status MaleFemaleAll inpatients Voluntary82.0%88.5%84.9% Involuntary11.3%8.7%10.1% Wards of Court 2.5%2.4%2.5% Court Orders 4.2%0.2%2.5% Total54.5%45.5%100%

5. MHA: A Framework for Treatment Application: –because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons –because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could only be given by such admission and the treatment would be “likely to benefit or alleviate the condition

6. MHA Principles Best Interests (but note limit) Entitlement to be notified and to make representations “Due regard” to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy

7. Treatment Section 57: Patient consent required: [E]xcept where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent

8. Detail on Consent Requirement Requirement for Provision of Information “in a form and language the patient can understand” Decision re Capacity: –Patient’s Consultant Psychiatrist –No Review Mechanism –Therapeutic Pressures

9. Outside the Consent Requirement Electro-convulsive Therapy (ECT) (s 59) Medication for more than 3 months (s 60) Treatment may be provided where patient is unable or unwilling to consent Provided Approval of patient’s consultant psychiatrist Authorisation of second psychiatrist “following referral by the first consultant psychiatrist”

10. Other Situations Psychosurgery – Consent and Tribunal Approval –Only time Tribunals play a role in approving treatment Minors –Psychosurgery and ECT – Court approval –Ongoing Medication – Second Opinion

11. MHC Rules Rules Governing the Use of Electro- Convulsive Therapy (R-S59(2)/01/2006) Rules Governing the Use of Seclusion and Mechanical Means of Bodily Restraint (R- S69(2)/02/2006) Code of Practice on the Use of Physical Restraint in Approved Centres (COP- S33(3))

12. Improvements in the MHA Underlying principles Recognition of consent Requirement for Information Automatic right to a second opinion Periodic Review of Treatment Entitlement to an “individual care plan” (under Mental Health Act 2001 (Approved Centres) Regulations 2006 )

13. Unwilling Patients and Right of Autonomy Ss 59 and 60 Failure to protect autonomy of capable patients –Article 40.3.1 and Article 8 ECHR –Not absolute right –But inadequate review process – fails to justify departure

14. “Unwilling” and capacity “Unwilling” – not just legally capable –[T]he degradation of an incapacitated person shames us all even if that person is unable to appreciate it, but in fact most people are able to appreciate that they are being forced to do something against their will even if they are not able to make the decision that it should or should not be done Hale LJ in R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419

15. Freedom from Inhuman and Degrading Treatment Established Right –The State (C) v Frawley [1976] IR 365 –Herczegfalvy v Austria (1992) 15 EHRR 437 Minimum severity “actual bodily injury or intense physical or mental suffering” Therapeutic exception “convincingly shown” Inadequate review procedure

16. Right to Bodily Integrity Article 40.3.1 and Article 8 ECHR –“[E]ven a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8, if it is carried out against the individual’s will.” Storck v Germany [2005] ECHR 406

17. The Future Review of the Operation of the MHA (2007) –No change on review procedure for ECT but any MHC review to take account of international best practice –Acceptance in principle to review “unwilling” where patient has capacity –Continuation of 3 month reviews for ongoing medication – no “watering down” of right

18. Outside the MHA “Voluntary” – misnomer –“Bournewood” patients –Long Term patients 46% of patients over 65 - 5 years or more (MHC Annual Report 2006, p 57) –Agreement to admission to avoid formal process

19. Protections Regarding Treatment Common law rules –Consent if capable –Best Interests if incapable Right to a care plan (2006 Regulations) Quality Framework for Mental Health Services in Ireland (MHC) But no individual review mechanism unless arising as Ward of Court

20. Reform Priorities Need for Capacity Legislation But need to address particular issues for patients with mental disorders Need for treatment overview mechanism –For ECT –Long Term medication A “joined up” approach to reform