Ms Kathleen Lynch T.D., Minister for Primary Care, Social Care (Disabilities & Older People) and Mental Health today, Thursday 5 march 2015, published the Expert Group Review of the Mental Health Act, 2001. The completion of this review is in line with a commitment in the Programme for Government which promised to have the review carried out in consultation with service users, carers and other stakeholders while being informed by human rights standards.
The Expert Group, which began its work in August 2012, took as its starting point an initial report undertaken by a Steering Group which scoped out the main issues for further review. The Group has made 165 recommendations, the bulk of which relate to changes to our mental health legislation. In particular, the changes seek to move away from the often paternalistic interpretation of the existing legislation, to one where insofar as is possible, the individual has the final say in what he/she deems to be in his/her best interests and receives the best possible quality of service required to attain the highest standard of mental health. In addition, the recommendations provide a practical and realistic way forward, which can ensure that the safeguards necessary for mental health legislation are robust and fully compliant with international best practice, as well as ensuring that those vulnerable people who need care and treatment can avail of it in the most appropriate environment.
Welcoming the thrust of the review’s recommendations, Minister Lynch said, “While the 2001 Act has served us well, we must remember that it was enacted five years before the publication of A Vision for Change, and six years before the publication of the Convention on the Rights of People with Disabilities. Both of these landmark documents have set standards based on the concept of recovery and on individuals with mental health problems having autonomy to the greatest extent possible to make their own admission and treatment decisions."
The Minister continued "I particularly welcome the recognition that, in line with our proposed capacity legislation, every effort must be made to respect decisions made by individuals with capacity who have mental health problems. In the past, we have too often and too easily resorted to a ‘best interests’ approach where others made key admission and treatment decisions on behalf of individuals with mental health problems. The review now charts a way forward which aims to give a stronger voice to the individual and an acknowledgement that such individuals may need support to exercise their wishes. In addition, I am pleased to see that the strengthening of existing safeguards provided under the Act for those who require involuntary admission and treatment is recommended. I know only too well, from speaking with service users, that the importance of having robust and effective safeguards surrounding detention and treatment without consent cannot be overstated because of their significant contribution to the dignity of the person."
"I have instructed my officials to proceed, on the basis of the road map which this review provides, to draw up the general scheme of a bill to reflect these changes in revised legislation. I also wish to confirm that I intend to deal separately and within a shorter timeframe with a change in legislation regarding the use of ECT. At present a course of ECT can be administered to a patient even if that patient has capacity and refuses such treatment. I believe that such a refusal of ECT treatment (where a person has capacity) must be respected, and I will bring forward early proposals in this regard."
"Finally, I wish to thank the members of the Expert Group for their commitment to reshaping our mental health legislation and ensuring that, those who may be regarded as among the more vulnerable people in our society, have robust safeguards enshrined in our mental health legislation in line with international best practice".
The Report of the Expert Group on the Review of the Mental Health Act 2001 is attached below.
Summary of some of the main recommendations suggested
for inclusion in the proposed General Scheme of a Bill
· Interpretation of revised mental health legislation will be informed by the inclusion of sets of Guiding Principles (one for adults and a separate one for children) which will replace the current legislative principal consideration of best interests. This will change the focus of the Act from one that has been viewed as paternalistic in nature to one that focuses on the autonomy of the person. (Section 2.1)
· It will no longer be possible to detain someone purely because he or she has a significant intellectual disability. (Section 2.2)
· The definition of mental illness will explicitly acknowledge that it is a complex and changeable condition. In addition, the report acknowledges the importance of giving due respect to a person’s own understanding of their mental illness. (Section 2.2)
· To acknowledge the change on the ground from a Consultant Psychiatrist delivered service to one that is now delivered by a multi-disciplinary team led by a Consultant Psychiatrist, we are providing that certain key decisions under the revised legislation such as admission of involuntary patients should involve an assessment by at least two Mental Health Professionals. (Section 2.10)
· While capacity is, in the first instance, to be presumed for all individuals, where a formal capacity assessment determines that a person lacks capacity, this should now be monitored on an ongoing basis by the treating clinicians to ensure that as soon as a person regains capacity, he or she is afforded the opportunity to make his or her own treatment decisions. The Assisted Decision-Making (Capacity) Bill has significant proposals for all individuals in terms of capacity, including the provision of support for a person to make their own decisions whenever possible, and where mental health is concerned, assessment of whether a person has a mental illness will, in future, be clearly separated from assessment of capacity. (Section 2.6)
· A voluntary patient will be defined as a person who has capacity to make his or her own decisions regarding admission and treatment and who gives informed consent to that admission and treatment. The current Act regards a patient as voluntary only if that person is not subject of an admission or renewal order. (Section 2.7)
· A new category of intermediate patient will be introduced to ensure that people who may not warrant detention but do not have the capacity to give informed consent may be admitted for treatment in a ‘voluntary’ capacity with all the safeguards available to involuntary patients applying to this category of patient. (Section 2.8)
· An expanded Authorised Officer service to play a more prominent role in examining alternatives to in-patient treatment if available and required, and where appropriate to initiate applications for involuntary admission. (Section 2.9)
· Mental Health Tribunals (now to be renamed Mental Health Review Boards) are to review detention of patients after 14 days rather than 21 days as is the case at present. In future a psychosocial report will also be carried out by a member of the multi-disciplinary team for the Review Board. (Section 2.13)
· Renewal Orders will be for 3 or 6 months only – 12 month orders will no longer be possible. (Section 2.14)
· It will no longer be possible to administer ECT to a person who has capacity and does not consent to such treatment. ECT may still be administered in future, but in all cases where a person has capacity, he/she must consent to such treatment. Where a person lacks capacity a substitute decision-maker appointed under the proposed Assisted Decision-Making (Capacity) Bill can also authorise such treatment. Where a patient does not have capacity and a decision-making representative does not give consent to ECT, such treatment may only take place where it is required as a life-saving treatment, for a patient where there is a threat to the lives of others or where the condition is otherwise treatment resistant, and such ECT may then only be administered subject to approval by a Mental Health Review Board which must convene within 3 days of the decision being taken. (Section 2.19)
· Children to have a stand-alone section of the Act with child appropriate guiding principles. Children aged 16/17 shall be presumed to have capacity to consent to or refuse admission and treatment. (Section 2.23)
· On a phased basis, introduce the registration of all community mental health teams and inspect against an increasing proportion of the services now being provided in the community, such as Day Hospitals, Day Centres and other facilities in which mental health services are provided, in addition to making residential services including High, Medium and Low Support Hostels as well as Crisis and Respite Houses subject to inspection. Only in-patient services in Approved Centres are registered at the moment. (Section 2.24)
· Revised legislation to proactively encourage and support patients to involve family/carers in the admission process and in the development of care and treatment plans including discharge planning. (Section 2.26)