Mental Health Commission improvements which might be made in light - PDF document

Outline � Introduction European Human Rights in the Mental � Mental Health Act 2001 Health Act 2001 and � Criminal Law (Insanity) Act 2006 the Criminal Law (Insanity) Act 2006 Darius Whelan Mental Health and Human Rights Seminar October 2007 2 Key Dates � 31 Dec. 2003 – European Convention on � The 2001 and 2006 Acts in general conform Human Rights Act 2003 came into force with the ECHR � 1 June 2006 – Criminal Law (Insanity) Act � Acts are vast improvement on the previous 2006 came into force law � 1 November 2006 – Main parts of Mental � ECHR had major influence on how ’01 and Health Act 2001 came into force ’06 Acts were drafted � ECHR also impacted on amendments made during Oireachtas debates 3 4 � Focus in this paper is on possible further Mental Health Commission improvements which might be made in light www.mhcirl.ie of ECHR � Note ECHR arguments will often be made in parallel with Irish constitutional law arguments 5 6 1

Mental Health (Criminal Law) Review Board www.mhclrb.ie 8 Mental Health Act 2001 Article 5 ECHR Winterwerp v Netherlands (1979) � Right to liberty. No one to be deprived of � Decision to detain must be based on finding liberty save in following cases and in of a true mental disorder determined by accordance with procedure prescribed by law objective medical expertise [art.5(1)] � Mental disorder must be of kind or degree � One case: lawful detention of “person of warranting compulsory confinement unsound mind” [art. 5(1)(e)] and � Right to information on “arrest” [art.5(2)] � Validity of continued confinement must be � Right to take proceedings for decision on based on the persistence of the disorder lawfulness of detention [art.5(4)] 11 12 2

De Facto Detention “Bournewood Gap” � Voluntary Patient who � R v Community and Mental Health NHS Trust, ex parte L. (1998) � does not have capacity to consent to admission, and/or � House of Lords: De Facto Detention justified by � wishes to leave centre but fears re-grading as common law doctrine of necessity involuntary patient � H.L. v United Kingdom (2004) � European Court of HR: Detention of this kind breaches Article 5 13 14 � Reform of law needed in Ireland to deal with “Bournewood gap” 16 Speed of Tribunal Reviews � See also Irish case: H. v Russell (2007) � Reviews must be within 21 days of admission or renewal order � Relevant period where a patient was, apparently, a “voluntary” patient was not in substance � As regards first review, this may not be voluntary “speedy” enough to satisfy ECHR � Detention held to be unlawful � L.R. v France (2002) – 24 days too long 17 18 3

Frequency of Reviews � Note views of Dept of H & C, 2007: � While automatic reviews are desirable, they do not necessarily fully comply with Article 5 � Tribunal hearings should take place at earliest possible opportunity � “The detainee’s access to the judge should � 14-day time period for second consultant’s report not depend on the good will of the detaining should be reduced authority.” � Rakevich v Russia (2003) 19 20 Definition of “unsound mind” Scope of Review � ECHR has not defined “unsound mind” � Tribunal has limited powers – only two main choices: confirm or revoke order � Irish case: R. v Byrne and Flynn (2007) � Arguable that Tribunals need to have more � S.3(1)(a) – serious likelihood of immediate and serious harm to self/ others – envisages a high extensive powers, e.g. to order conditional level of probability discharge; defer discharge until place � “Harm” – physical and mental injury are included available � “Serious” – Infliction of minor physical injury to person themselves could be regarded as not serious 21 22 Burden of Proof � Act is silent about burden of proof at Tribunal � UK: Postponing Release until suitable place stage in community available � On appeal to Circuit Court: Burden of proof � Johnson v UK (1997) on patient � J. no longer had a mental disorder � Unclear whether this complies with ECHR � Discharge must not be unreasonably delayed � R v MHRT, N. & E. London, ex parte H. (2001) � Is an appeal stage different from first instance stage? � Delcourt v Belgium (1970) – Appeal courts should comply with Art. 6 23 24 4

Impartiality Independence of executive � Patient appears to be only party to Tribunal � Minister appoints Mental Health Commission hearing based on criteria in s.35 � Normal triangular model of Tribunal has not � Commission appoints Tribunal members been established under s.48 � Tribunals need to take care in questioning patient not to act as if “against” patient 25 26 Article 6 � Fair and public hearing within reasonable � A v Refugee Appeals Tribunal (2006) time by independent and impartial Tribunal � Arguably selected previous decisions of � Applies to determination of civil rights Mental Health Tribunals need to be made available � Right to liberty is civil right � Aerts v Belgium (1998) � Equality of arms, reasons for decisions, reasonable time, etc. � Right to participate effectively 27 28 Article 3 � Restriction on right of access to court � Freedom from inhuman or degrading treatment � S.260 Mental Treatment Act 1945 � No successful case in Europe yet � ECHR upheld English equivalent – Ashingdane v UK (1985) � Possible challenges can be envisaged � Blehein v Minister for Health and Children (2004) � Where does Blehein leave s.73 Mental Health Act 2001? 29 30 5

Article 5 Criminal Law (Insanity) � No need for psychiatric report for 14-day Act 2006 detention for assessment [s.4(6) + s.5(3)] � Can be extended up to 6 months in insanity cases after consultation with psychiatrist [s.5(3)(b)] � Keys: This may breach Winterwerp principles 32 � Lack of clarity re personality disorders � Ní Raifeartaigh: � Minister McDowell: “It may or may not be � Courts should interpret s.4(6) in Convention- that [s.8 of the 2001 Act] is a tacit admission compliant fashion that mental disorder could include a personality disorder and, therefore, section 8 was necessary to take it out of that realm. Alternatively, the whole Act could be read as stating mental disorder under the 2001 Act was not intended to cover personality disorder.” (176 Seanad Debates 259.) 33 34 Reviews � Lack of clarity may breach requirement in art. � Initial detention involves judicial decision and 5 ECHR that detention be “in accordance therefore review not needed with procedure prescribed by law” � Subsequent reviews at least every 6 months � Human Rights Commission suggested 3 months � Period of time from application for review by patient to date of review – “as soon as may be” – s.13(8) + (9) 35 36 6

Procedures Powers of Courts and Review Board � Minister must consent to procedures of � More extensive than Mental Health Tribunals Review Board [s.12(6)] � But different powers for different categories of � Criticised as Ministerial “veto” case - � Unfit for trial cases: court may order out-patient treatment – s.4(5) � Insanity cases: court does not have this power – s.5(2) 37 38 Information Impartiality � No statutory right to information for patient � Only three members of Review Board have been appointed � Contrast Mental Health Act 2001 � How will RB deal with situation where � Care must be taken to comply with requirement of information on “arrest” member of RB has had previous dealings with patient? � What if successful Judicial Review? No alternative members available to re-hear case 39 40 Transfers from Prison Independence of executive � Aerts v Belgium (1998) � Minister appoints Review Board members. Very few criteria in Act for appointment � Court can have regard to nature of treatment available in prison � National Disability Authority feared this � In Mr A’s case, detention in prison breached Art. 5 breached ECHR as he had a mental disorder � Mental Health Commission: � Contrast Bizzotto v Greece (1996) � Questions about independence could be raised � Could be unfair that composition of RBs would vary 41 42 7

Article 6 References � A v Refugee Appeals Tribunal � www.irishlaw.org/mentalhealth/oct07paper/ � See earlier slide under Mental Health Act 43 44 8