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Minister Lynch publishes Interim Report on the Review of the Mental Health Act 2001

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.