Ms Kathleen Lynch T.D., Minister for Disability, Equality, Mental Health & Older People today (21 June 2012) published the Interim Report of the Steering Group on the Review of the Mental Health Act 2001. The Minister said that this review is a commitment in the Programme for Government and is one to which the Government attaches great importance.
In welcoming the completion of the Interim Report, the Minister said, “The 2001 Act, the key parts of which came into operation in 2006, was a major advance in how we legislated for those individuals who required detention in approved centres. That said, with the publication since 2001 of the Government policy on mental health, A Vision For Change, and the Convention on the Rights of People with Disabilities, it is timely to have a comprehensive review of this important legislation.”
A Steering Group chaired by the Department was tasked with providing an Interim Report which would initially consult with service users, carers and other stakeholders and identify the key areas of the Act to be examined in the second and substantial phase of the review.
The Minister went on to say, “I fully endorse the recommendation of the Steering Group that a rights based approach to mental health law should be adopted. A move away from the paternalistic approach of the 2001 Act was a strong feature of the views expressed in the consultation process. It is important that each person should have a right to determine and participate as much as they possibly can in their own care and treatment. The imminent publication of the Assisted Decision-Making (Capacity) Bill 2012 will also be a significant improvement in this regard.
The Interim Report also emphasises the need for revised mental health legislation to support the objectives of A Vision for Change especially in relation to the promotion of community based mental health services. I also welcome the various changes recommended which aim to improve procedures regarding the detention of individuals and the necessary safeguards proposed to ensure that they receive the maximum appropriate protection in this regard.
The recommendation that provisions relating to children should be included in a standalone Part of the Act and that children should be given a greater say in their care and treatment are also to be welcomed.
Having now received the Interim Report, it is my intention to put in place an Expert Group to carry out the second and substantive phase of the review. I would expect that this group can begin its work in the coming weeks and that it would conclude its deliberations in early 2013.”
ENDS
The Interim Report of the Steering Group on the Review of the Mental Health Act 2001 is available on the Department’s website at: http://www.dohc.ie/publications/int_report_sg_reviewMHA.html
Note for the Editor
Background to the Review
The Mental Health Act 2001 is the key legislation in this country regarding the involuntary admission of people deemed to be suffering from a mental disorder. At the time of its introduction, the Mental Health Act 2001 was acknowledged as a very significant legislative step in advancing human rights protections for people admitted involuntarily to approved centres in this country. However since the Act was passed there have been a number of important developments in mental health. Among these developments was the publication in 2006 of ‘A Vision for Change’ (AVFC). AVFC emphasised the importance of community based services, the adoption of a recovery approach in every aspect of service delivery and the involvement of service users as partners in their own care and in the development of the service. Another important development occurred on 30 March 2007 when the Government signed the Convention on the Rights of Persons with Disabilities. The Convention provides for a rights based approach to disability and in this context, the potential implications of some of the Articles of the Convention for our mental health legislation require further consideration.
Terms of the Review
The Programme for Government includes a commitment to review the Mental Health Act 2001, “informed by human rights standards and in consultation with service users, carers and other stakeholders”. In 2011 Minister Lynch established the Steering Group to review the provisions of the Act having regard to:
(a) its general operation since its commencement;
(b) the extent to which the recommendations of ‘A Vision for Change’ could or should be underpinned by legislation;
(c) the provisions of the UN Convention on the Rights of People with Disabilities,
and
(d) the current economic environment.
Key Recommendations of the Interim Report
1. Human Rights and Paternalism
A rights-based approach to our mental health legislation, which would be refocused away from ‘best interests’ in order to enhance patient autonomy, is recommended. It is proposed that the revised legislation should set out a hierarchy of rights with Autonomy and Self determination being the key principles.
2. A Vision for Change
The Steering Group believes that Recovery should also be one of the guiding principles of the revised Act, with greater emphasis being placed on individual care plans. Inspection of community based services by the Inspector of Mental Health Services is also recommended.
3. Children
The Steering Group recommends that the provisions relating to children should be included in a standalone Part of the Act. Children aged 16 or 17 should be presumed to have capacity to consent / refuse mental healthcare and treatment. The child should also have the automatic right to an independent review of their detention and the Steering Group sees merit in the introduction of child friendly Tribunals for children detained by the Court.
4. Voluntary, Involuntary Patients and Capacity
The scope of the Mental Health Act should be expanded to include voluntary patients and the protections provided for involuntary patients should where appropriate and necessary apply equally to voluntary patients. The Act should include a statement that a person is presumed to have capacity to make decisions in relation to admission and treatment. However, where a person is believed to lack the capacity to make a decision, supports should be established to assist them in making the decision. Any new legislation should recognise that decisions on admission and treatment for persons who lack or have fluctuating capacity should be made in the context of the proposed capacity legislation. The definition of voluntary patient should be amended to emphasise the importance of their consent to care and treatment for mental illness.
5. Consent To Treatment
Having already recommended that the guiding principles of the revised legislation should be human rights focused, with the right to Autonomy and Self Determination being the key principles, the Steering Group further recommends that the Act should explicitly provide that patients should be supported to make informed decisions regarding their care and treatment. The provisions of Sections 59 and 60 in regard to patients, who are ‘unable’ to give consent, should be revised to take account of these principles.
6. Detention
The Steering Group accepts that a person should only be detained for treatment as a last resort and that the Act should be underpinned by the least restrictive principle, stressing that a patient should not be detained longer than absolutely necessary. Significant intellectual disability should no longer be grounds for involuntary detention. Changes to procedural issues relating to length of the initial detention period and renewal orders are put forward while changes to the role of independent psychiatrists in the context of Tribunals are also suggested and recommended for further review.
7. Authorised Officers
The Steering Group believes that the implementation of a full authorised officer service would have considerable benefits as such officers are best placed to consider alternatives to detention, can offer specific advice and mobilise support for the service user and the family.