Treatment for Mental Disorders and Protection of Patients

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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
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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)

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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)

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The Statistics MHC Annual Report 2006, p 51
Legal status Male Female All inpatients
Voluntary 82.0 88.5 84.9
Involuntary 11.3 8.7 10.1
Wards of Court 2.5 2.4 2.5
Court Orders 4.2 0.2 2.5
Total 54.5 45.5 100
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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

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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

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Treatment

• Section 57 Patient consent required
• Except 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

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Detail on Consent Requirement

• Requirement for Provision of Information in a
  form and language the patient can understand
• Decision re Capacity
• Patients Consultant Psychiatrist
• No Review Mechanism
• Therapeutic Pressures

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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 patients consultant psychiatrist
• Authorisation of second psychiatrist following
  referral by the first consultant psychiatrist

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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

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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))

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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)

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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

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Unwilling and capacity

• Unwilling not just legally capable
• The 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

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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

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Right to Bodily Integrity

• Article 40.3.1 and Article 8 ECHR
• Even 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 individuals will.
• Storck v Germany 2005 ECHR 406

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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

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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

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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

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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