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Comments on An Bille Meabhair-Sláinte 1999 (Mental Health Bill 1999)

submitted on behalf of the Royal College of Psychiatrists Irish Division, 123 St Stephens Green, Dublin 2

The Royal College of Psychiatrists offers the following comments on the Mental Health Bill 1999. We trust that overall they will be accepted as both considered and helpful advice. The Royal College of Psychiatrists is pleased that the long overdue upgrade of the mental health legislation is being enacted.

Good mental health legislation is the guardian of civil rights

The omission of both Adult Care Orders, Chapter 8 and protecting mentally disordered patients, Chapter 10, of the White Paper is a serious omission (Department of Health, Government of Ireland, 1995).

The absence of proposed legislation in relation to mentally disordered offenders would appear to breach both the European prison rules - recommendation number R (87) 3 of the Committee of Ministers, Council of Europe, 1987, and the United Nations Standard Minimum Rules for the Treatment of Prisoners (resolution adopted 30 August 1955, at the first UN Congress of the Prevention of Crime and the Treatment of Offenders).

The Department of Health states that :

"The [prison] medical services should be organised in close relation with the health administration of the community or nation".

Adult Care Orders

The College is seriously concerned that there are no comments in the Bill in relation to Adult Care Orders. This absence affects the most vulnerable patients with a mental disorder living in the community. It is necessary to provide appropriate care and protection for those who may be vulnerable from abuse, exploitation or neglect. We hope this matter will be addressed.

Some legal mechanism needs to be established for guardianship, such as a Court of Protection and an official solicitor. There is also an absence of legislation in relation to the establishment of community care and the direction of Government policy in this area.

Mentally disordered offenders

We are concerned at the absence of any referral to mentally disordered offenders as contained in Chapter 7 of the White Paper A New Mental Health Act 1995. We need to know what alternative legislation is being considered to address this serious omission.

Definition of mental disorder

Part 1, Section 3
We understand that the definition of ‘mental disorder’ relates primarily to involuntary admission to an ‘approved centre’ as defined in the Mental Health Bill.

The College would advise that the term "significant mental handicap" is both incorrect and not acceptable under current international classification of diseases. We would suggest that "significant mental handicap" be renamed ‘significant mental impairment’.

For the purposes of mental disorder in children, it is the view of the College that conduct disorder should be excluded from involuntary admission similarly to the exclusion of personality disorder in adults.

Involuntary admission

Part 2
Paragraph 11, Section 1 : The phrase "The member may either" would be better worded as "the member shall either".

In addition the College has concerns about the recommendation that ‘approved centres’ send staff in to the community for the purpose of admitting involuntary patients. This is both therapeutically and clinically inappropriate.

It would be useful if each step of the process of involuntary admission be both separate and distinct. The last step being the acceptance of the patient by the admitting ‘approved centre’.

Part 2, Section 8 (1)(a)
The application for involuntary admission by a spouse or relative of a patient does not address the issues of ‘disqualifications of spouses in dispute’ as contained in paragraph 3.1.3 of the White Paper. This stated that

"the Government would propose a new legislation to disqualify a spouse from making an application for the detention of his/her partner where the couple separated or is in the process of separating or where an order has been sought or granted under Family Law (Protection of Spouses and Children) Act, 1981."

Part 2, Section 8(8)
‘Authorised Officer’ : it is unclear who the ‘authorised officer’ may be, or whether they should hold an appropriate professional qualification.

Second opinions

Section 22 : The College would advise that there may be practical difficulties on occasions, in rural areas especially, in obtaining a second consultant opinion within the 24-hour period referred to in the Act.

Relationship between Mental Health Commission and Inspector of Mental Health Services

Part 3
We understand that the Inspector will be employed by the Commission and are therefore puzzled that the Inspector's Annual Report can be independent of the Commission. The roles and division of responsibilities between the Mental Health Commission and the Inspector of Mental Health Services is unclear and needs clarification.

The College is concerned that members may have to take ‘an oath’ before appearing before the Mental Health Commission.

Mental Health Commission

Part 3, Section 31
The powers of the Commission need to be clearly defined.

We note the proposed membership of the Commission but would request that consideration be given in view of the onerous task of the Commission to include four medical practitioners, three of whom should be consultant psychiatrists.

The College would request that consultant psychiatrist members be nominated by the Irish Division of the Royal College of Psychiatrists which is the largest representative body of psychiatrists in Ireland.

The College strongly recommends that the Chair of the Commission, at least in the first instance, should be a consultant psychiatrist.

Mental health tribunals

Part 3, Section 47
We note that the proposed tribunal consists of two members, a medical member and a legal member. We would advise that the tribunal would be better balanced, if there were three members, the third member being a ‘lay member’.

Clinical directors

Part 6, Section 70
The College is concerned at the briefness of reference both to clinical directors and their appointment.

Clarification is required as to whether clinical directors are appointed only to carry out functions as required by the mental health legislation.

The relationship of the clinical directors as defined in the Mental Health Bill and their relationship to existing resident medical superintendents and clinical directors is unclear.

The College would advise that the importance of these appointments is such that they be made by the Local Appointments Commission subject to the approval of Chief Executive Officers of Health Boards.

The College recommends that these appointments should be renewable for a formal period of term of office.

Child and adolescent psychiatric services

The College has concerns about the following aspects of the proposed legislation as it relates to children and adolescents.

1. Involuntary admission
   Section 24 sets out the procedures for involuntary admission of children and the circumstances in which this provision is used.
   Section 24(1) does not state what examinations are necessary before an application is made to the court for the involuntary admission of a child. Neither does it state who in the Health Board can make the application to the court. It is not clear whether parents can apply for assistance in circumstances where they are willing to give consent to treatment of their child (under 18) but where the child is resisting being brought for admission.
   Children must be afforded the same rights as adults. That is the right to an examination by a registered medical practitioner (in the same fashion that is available to adults) to determine whether or not they have evidence of a mental disorder which would require admission. The examining consultant psychiatrist should be the psychiatrist who works in the unit where the child will be admitted.
   Section 24(2) should specify what other type of evidence may be placed before the Court. There is no reference to the role of either the clinical director or treating consultant Psychiatrist in this process.
   
2. Interim care and custody
   Section 24(6)
   Interim care and custody (between the application and the determination of an order) is at the discretion of a judge. This raises the question of whether a judge could direct that an ‘approved centre’ be used for this purpose prior to a psychiatric examination of a child. It is a worrying situation that the courts may direct an ‘approved centre’ to house a child prior to psychiatric admission. The College recommends an emergency care facility under the auspices of the Health Board, for example, children's homes should be available.
   Sections 24(7) and (8) provide for extensions of the involuntary order. Under Section 24(9) there should be an explicit requirement for a report from the treating consultant psychiatrist for this purpose (cf. renewal orders for adults).
   Sections 24(12) and (13) reference the provisions of the Child Care Act 1991 which will apply to children who are subject to the involuntary admissions orders, for example, free legal aid ; access to solicitors ; guardian ad item, etc.
   
3. Consent to treatment - children and adolescents
   The most significant change proposed is that which raises the age of consent from 16 years to 18 years of age. This would appear to preclude this age group from access to mental health tribunals as provided for adults under the terms of the Bill.
   Neither can this age group give consent following involuntary admission under Section 24 (see Sections 59 and 60). This appears to be a retrograde step and not in line with international trends regarding the age of consent to treatment. Under the 1998 Non-Fatal Offences Against the Person Act a 16-year-old can consent to medical treatment without parental input.
   It is remiss in not allowing the views of a 16-or 17-year-old to be given in relation to consent to treatment while the anomaly exists that if they were married that they would be allowed to do so.
   The concerns of the College centre around : (a) the raising of age of consent from 16 to 18 years ; (b) the legal safeguards afforded to children vis-à-vis adults in relation to involuntary admission ; and (c) the lack of resources.
   
4. Resources for child and adolescent psychiatric services
   At present, resources for child and adolescent psychiatric services provide for the under 16-year-old age group. Six of the eight Health Boards have no inpatient facilities. The Eastern Health Board and Western Health Board have limited in-patient facilities in open units and these do not operate under mental health legislation. This raises the prospect of children who need involuntary admission under the Mental Health Bill 1999 only having access to adult psychiatric services.
   The College would encourage development of resources for adolescent/young adult psychiatry.
   

Overall, the College welcomes the introduction of mental health legislation to address the needs of children and adolescents, especially in our rapidly changing and increasingly complex society. We consider it appropriate that as psychiatrists we can look forward to working under mental health legislation rather than the current situation whereby the Child Care Act 1991 is the only provision available. The introduction of separate legislation must have the benefit of distinguishing between psychiatric treatment and child care issues. The proposed legislation deals with the legalities of involuntary admission and not with the organisation or availability of services. However, the issue of resources will need to be addressed.

Resources

The College is mindful of the operating costs of the new Mental Health Commission and Inspectorate and would request that the level of resources in both financial and manpower terms be adequate.

We are also concerned about the absence of any statutory minimal standards for mental health care and treatment but are hopeful that these will be identified and published by either the Mental Health Commission and/or the Inspector of Mental Health.

Psychiatric services overall need further financial input both to raise the present standard and also to enable the Mental Health Bill to work smoothly. In particular please note the above paragraph on resources contained under the Section of Child and Adolescent Psychiatric Services.

Concerns and advice

1. We would advise that under the Health Board Act 1989 the terminology ‘mental handicap’ was changed to ‘intellectual disability’.
   
2. Informed consent
   
   1. Both the adult ‘mentally handicapped’ and some elderly patients such as those with dementia are unable to give ‘informed consent’ to undergo various psychiatric and medical/surgical treatments. Many will be in ‘approved centres’ and although deemed ‘voluntary admission’ they are de facto detained as they have not the capacity to have given their informed consent.
      
   2. We advise that the Mental Health Commission would have responsibility for monitoring psychiatric care and treatment of all psychiatric in-patients, (even though they are not ‘legally detained’) both voluntary and detained as the rights of voluntary and de facto detained patients are not addressed.
      
   3. The role of the Inspector of Mental Health Services should be widened to monitor all residential health centres where patients with mental disorders are receiving medical treatment without ‘informed consent’.
      
   
   
3. Advocacy system
   Consideration for a system of advocates, independent of the mental health services, for patients both involuntary, detained and de facto detained would be welcomed.
   
4. Advance directives
   Consideration might also be given to issues posed by the use of ‘advance directives’.
   
5. Approved centres
   The College is concerned that a number of facilities may not be suitable to be registered ‘approved’. This applies particularly to units outside the Eastern Health Board admitting children and adolescents for in-patient treatment.
   
6. Northern Ireland reciprocal arrangements
   The College is concerned that Paragraph 11.19 of the White Paper has not been included in the Bill. This paragraph suggested new legislation would provide the closest possible coordination of the two systems of law for the detention of those with a mental disorder and need for treatment of these patients between Northern Ireland and the Republic of Ireland. In view of the Anglo-Irish Agreement and North/South bodies perhaps this omission could be rectified.
   

References

DEPARTMENT OF HEALTH, GOVERNMENT OF IRELAND (1995) A New Mental Health Act 1995. White Paper. Dublin : The Stationery Office.

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