scholarly journals Involuntary status and mental capacity for treatment decisions under Sections 4, 3, and 57 of Ireland’s Mental Health Act, 2001: analysis and recommendations for reform

2021 ◽  
pp. 1-6
Author(s):  
Katherine Reidy ◽  
Brendan D. Kelly
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Capacity ◽  
Best Interests ◽  
Health Law ◽  
Significant Progress ◽  
Mental Health Act ◽  
Human Rights Based Approach ◽  
Over Time ◽  
Made In

Although significant progress has been made in Irish mental health law in recent decades, the Mental Health Act, 2001 still falls short of properly protecting human rights. A consideration of human rights developments, both domestically and internationally, highlights the urgent need for reform. In this paper we consider Sections 4 (‘Best interests’), 3 (‘Mental disorder’) and 57 (‘Treatment not requiring consent’) of the 2001 Act and related recommendations in the 2015 Report of the Expert Group on the Review of the Mental Health Act, 2001, and suggest specific areas for reform. Just as medicine evolves over time, so too does our understanding of human rights and law. While embracing a human rights-based approach to the extent suggested here might be seen as aspirational, it is important to balance achievable goals with higher ideals if progress is to be made and rights are to be respected.

scholarly journals The proportionality principle and what it means in practice

2011 ◽  
Vol 35 (3) ◽  
pp. 111-116 ◽  
Author(s):  
Martin Curtice ◽  
Fareed Bashir ◽  
Sanjay Khurmi ◽  
Juli Crocombe ◽  
Tim Hawkins ◽  
...  
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Capacity ◽  
European Convention ◽  
Mental Health Act ◽  
Codes Of Practice ◽  
Principle Of Proportionality ◽  
Mental Capacity Act ◽  
The Uk ◽  
Human Rights Based Approach

SummaryThe Mental Health Act 2007 and the Mental Capacity Act 2005 have been made compatible with the European Convention on Human Rights (as enacted in the UK by the Human Rights Act 1998). The respective Codes of Practice have now embedded within them a human rights-based approach. Central to this is the principle of proportionality, which is regarded as the dominant theme underlying the Convention. This article explores the legal basis of proportionality, specifically analysing its use in relation to the Mental Health Act and the Mental Capacity Act. In doing so, it considers the use of the principle of proportionality in clinical practice.

scholarly journals Reform of the Mental Health Act 1983 – Convention Implications of the Green Paper

2014 ◽  
pp. 99
Author(s):  
Paul Bowen
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Green Paper ◽  
Mental Health Act ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Government ◽  
The Impact ◽  
The Devil ◽  
Made In

Assessing the Convention compatibility of the Government proposals for reform of the Mental Health Act 1983 set out in the Green Paper1 is largely an exercise in speculation, for three reasons.First, the proposals are very broad; the detail, where the devil may be found, is yet to come.Second, the Convention does not permit the Strasbourg authorities to review the legality of national legislation in the abstract, but only with reference to particular cases after the proceedings are complete2. Although that will not necessarily preclude a domestic court from reviewing the lawfulness of any provision of the new Mental Health Act after incorporation of the Human Rights Act 19983, the comments that can be made in this article are necessarily confined to the<br />general rather than the specific.Third, and perhaps most significantly, it is impossible to predict the impact of the Convention following the coming into force of the Human Rights Act 1998 on 2 October 2000.

scholarly journals Australia's mental health legislation

2013 ◽  
Vol 10 (2) ◽  
pp. 38-40
Author(s):  
Kenneth C. Kirkby ◽  
Scott Henderson
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Health Law ◽  
International Treaty ◽  
Mental Health Law ◽  
Mental Health Act ◽  
International Trends ◽  
Strong Emphasis ◽  
Mental Health Legislation ◽  
Health Legislation

Australia has a generally progressive approach to mental health law, reflective of international trends in human rights. Responsibility for most legislation is vested in the six States and two Territories, a total of eight jurisdictions, such that at any given time several new mental health acts are in preparation. In addition there is a model mental health act that promotes common standards. Transfer of orders between jurisdictions relies on Memoranda of Understanding between them, and is patchy. State and Territory legislation is generally cognisant of international treaty obligations, which are themselves the preserve of the Federal Parliament and legislature. UK legislation has had a key influence in Australia, the 1959 Mental Health Act in particular, with its strong emphasis on voluntary hospitalisation, prefacing deinstitutionalisation.

scholarly journals Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales

2009 ◽  
Vol 195 (3) ◽  
pp. 257-263 ◽  
Author(s):  
Gareth S. Owen ◽  
George Szmukler ◽  
Genevra Richardson ◽  
Anthony S. David ◽  
Peter Hayward ◽  
...  
Keyword(s):  
Mental Health ◽  
Assessment Tool ◽  
Structured Interview ◽  
Cross Sectional Study ◽  
Mental Capacity ◽  
Best Interests ◽  
Cross Sectional ◽  
England And Wales ◽  
Mental Health Act ◽  
Mental Capacity Act

BackgroundIn England and Wales mental health services need to take account of the Mental Capacity Act 2005 and the Mental Health Act 1983. The overlap between these two causes dilemmas for clinicians.AimsTo describe the frequency and characteristics of patients who fall into two potentially anomalous groups: those who are not detained but lack mental capacity; and those who are detained but have mental capacity.MethodCross-sectional study of 200 patients admitted to psychiatric wards. We assessed mental capacity using a semi-structured interview, the MacArthur Competence Assessment Tool for Treatment (MacCAT–T).ResultsOf the in-patient sample, 24% were informal but lacked capacity: these patients felt more coerced and had greater levels of treatment refusal than informal participants with capacity. People detained under the Mental Health Act with capacity comprised a small group (6%) that was hard to characterise.ConclusionsOur data suggest that psychiatrists in England and Wales need to take account of the Mental Capacity Act, and in particular best interests judgments and deprivation of liberty safeguards, more explicitly than is perhaps currently the case.

scholarly journals Safeguards for informal patients

2014 ◽  
pp. 71
Author(s):  
Aswini Weereratne
Keyword(s):  
Mental Health ◽  
Mental Disorder ◽  
Residential Care ◽  
Elderly Person ◽  
Mental Capacity ◽  
Best Interests ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

<p>In light of the plethora of new provisions safeguarding patients who might previously have been cared for and treated informally, it may be instructive to consider who may now be considered a truly informal patient, i.e. one for whom neither process nor formality is needed. When applied to an incapacitated<br />patient requiring treatment for mental disorder, the word “informal” may now seem oxymoronic and possibly redundant. Can such a patient ever be truly informal? Part IV of the model statute suggests that an informal patient is one who lacks capacity and does not object to proposed treatment which is in their best interests, or a patient who may be treated without the use of compulsory powers; but even such a patient must now be subject to some formality if their care or treatment is to be long term or they are to be deprived of their liberty in order to ensure proper safeguards are in place.</p><p>Currently the boundary between the Mental Capacity Act 2005 (“MCA”) and Mental Health Act 1983 (“MHA”) is essentially one determined by whether the patient objects to treatment and is defined with formidable complexity in schedule 1A to the MCA. A patient eligible for MCA deprivation of liberty (“DOL”) safeguards, who could be an elderly person in long term residential care, is now subject to formal<br />processes. There is little true informality for a patient lacking treatment capacity. It is questionable whether even a capacitated patient with mental disorder, who is by definition vulnerable, may be treated informally under the MHA4 if they feel suborned into consenting by the possibility of coercion. The terminology offers a slightly deceptive impression of a benign approach with concomitant levels of<br />autonomy, but while it is appropriate to highlight a difference from compulsory process and keep formality to a minimum for the sake of informality, it is also important not to overplay formality in the name of safeguards. The latter appears to be the vice in which the MCA and MHA is now arguably gripped.</p>

scholarly journals Best interests and the raison d’être of health care

2015 ◽  
Vol 34 (4) ◽  
pp. 271-273
Author(s):  
V. Riordan
Keyword(s):  
Mental Health ◽  
Health Care ◽  
Human Rights ◽  
Intrinsic Value ◽  
Best Interests ◽  
Expert Group ◽  
Best Interest ◽  
Instrumental Value ◽  
Mental Health Act ◽  
The Individual

The report of the expert group on the review of the Mental Health Act has recommended that the requirement to consider the best interests of the person be replaced by a list of guiding principles, which focus on the autonomy of the individual. The implied rationale for this is that acting in our patients’ best interests may be a violation of their human rights. Dignity is being proposed as an alternative way of capturing ‘the positive aspects associated with best interests’, but it is not clear how dignity is preferable to best interests. Both approaches may help protect the most vulnerable from exploitation. However, unlike best interests, dignity can be used as a synonym for autonomy. Valuing autonomy as a means to an end (instrumental value) should be distinguished from valuing autonomy as an end in itself (intrinsic value). As the ultimate end of instrumental autonomy is invariably the person’s best interests, abandoning that principle renders instrumental autonomy obsolete, leaving intrinsic autonomy as the supreme value. As best interest, dignity and autonomy rarely conflict, the proposed changes may appear minor, but they are not. When such values do conflict, acting against our patients’ interests may become inevitable.

scholarly journals Mental Health Act Guardianship and the Protection of Children

2014 ◽  
pp. 186
Author(s):  
Ralph Sandland
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Social Services ◽  
Learning Difficulties ◽  
Health Law ◽  
Mental Health Law ◽  
Mental Health Act ◽  
Straightforward Application ◽  
The Face ◽  
Court Of Appeal

<strong><strong></strong></strong><p align="left">Re F (Mental Health Act: Guardianship) [2000] 1 FLR 192, CA<br />Court of Appeal (30th September 1999). Evans, Thorpe, and Mummery LJJ. Judgment of the Court given by Thorpe LJ.</p><p align="left">This case arose as a spin-off from what on the face of it was a relatively straightforward application for care orders, made by the Social Services Department of the London Borough of Hackney (‘LBH’), in respect of eight siblings. The case is of interest to mental health lawyers by reason of the attempt of LBH to use creatively elements of the Mental Health Act 1983 (‘the 1983 Act’) regime to plug apparent gaps in the powers available to local authorities and the courts in the<br />Children Act 1989. This entailed the court’s consideration of various provisions of the 1983 Act, as they relate to persons with learning difficulties. This case will also be of interest to family lawyers, as the boundary between family law and mental health law, such as it is, was also considered by the Court of Appeal. Moreover, it is worth remembering that the backdrop to all judicial activity in the field of mental health law at present is the on-going root-and-branch reform of this area of law. As will be discussed below, this case adds to a growing number that highlight<br />deficiencies in the operation of the current regime as it applies to adults with learning difficulties. Finally, although there is little direct discussion to be found in the law report of the judgment of the Court of Appeal, this case raises broader issues of human rights; a topic that none can afford to ignore in light of the Human Rights Act 1998.</p>

scholarly journals Mental Health and Compulsion

2014 ◽  
pp. 16
Author(s):  
Margaret Pedler
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
European Convention ◽  
Green Paper ◽  
Health Law ◽  
Mental Health Law ◽  
Mental Health Act ◽  
The Government

<p>This article looks at the role of compulsion in mental health law as it applies to civil patients. It starts by setting out the existing position and the Government’s proposals for reform as set out in the current Green Paper “Reform of the Mental Health Act 1983”. It goes on to consider principles which might be relevant to this area of law and the application of these to the Government proposals. Finally, it looks at the relevance of the European Convention on Human Rights.</p>

Human rights implications of introducing a new mental health act – principles, challenges and opportunities

2020 ◽  
Vol 28 (2) ◽  
pp. 167-170 ◽  
Author(s):  
Neeraj S Gill ◽  
John A Allan ◽  
Belinda Clark ◽  
Alan Rosen
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Persons With Disabilities ◽  
Mental Health Act ◽  
Mental Health Legislation ◽  
Positive Rights ◽  
Challenges And Opportunities ◽  
Human Rights Act ◽  
Health Legislation ◽  
Made In

Objective: The United Nations Convention on the Rights of Persons with Disabilities (CRPD), 2006 has influenced the evolution of mental health legislation to protect and promote human rights of individuals with mental illness. This review introduces how the human rights agenda can be systematised into mental health services. Exploration is made of how some principles of CRPD have been incorporated into Queensland’s Mental Health Act 2016. Conclusion: Although progress has been made in some areas, e.g. heavier reliance on capacity assessment and new supported decision-making mechanisms, MHA 2016 has continued to focus on involuntary treatment. A Human Rights Act 2019 has been passed by the Queensland parliament, which may fill in the gap by strengthening positive rights.

scholarly journals Newly introduced deprivation of liberty safeguards: anomalies and concerns

2010 ◽  
Vol 34 (6) ◽  
pp. 243-245 ◽  
Author(s):  
Ajit Shah ◽  
Chris Heginbotham
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Capacity ◽  
European Convention ◽  
Mental Health Act ◽  
European Court ◽  
Mental Capacity Act 2005 ◽  
Care And Treatment ◽  
Mental Capacity Act

SummaryThe European Court of Human Rights found that the care and treatment of HL in the ‘Bournewood case’ constituted infringement, in the form of deprivation of liberty, of his rights under Articles 5 (1) and 5 (4) of the European Convention on Human Rights. To prevent the infringement, the Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007. The recent implementation of the Deprivation of Liberty Safeguards on 1 April 2009 has exposed some anomalies and higlighted some difficulties in its implemention and application, and these are described in the paper.

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