MH4 Pathway

Social Work, 2012

2018

International Journal of Mental Health and Capacity Law, 2014

2003

2012

"The authors provide a number of recommendations that will better protect patient rights, whilst providing a framework to better protect people who are vulnerable in certain circumstances. This will be achieved by legislation that is centred around a presumption of decision­‐making capacity, facilitates supported decision‐making wherever decision-­‐making capacity is impaired, and encourages voluntary treatment wherever possible. Where people are unable to make their own decisions, even with support, substituted decision­‐making should be permissible in circumstances where the will and preference of the person is the paramount consideration, with the goal of supporting and enhancing the person’s overall wellbeing. The recommendations also take account of community concerns about the safety of others where people with mental illness are thought to present a risk of violence to persons."

Australasian Psychiatry, 2013

BMJ General Psychiatry, 2021

In England and Wales, the Mental Health Act (MHA) 1983 provides the legal framework for the detention of individuals suffering from a mental disorder if they are judged to present a risk of harm to self or others. The MHA removes from certain psychiatric patients civil liberties otherwise inherent in our legal system. Through both statute and common law, it balances a patient’s right to autonomy with psychiatrists' duty of care by reference to the health and safety of the patient. It also balances the civil rights of individual patients against the right of society to protection. The 2018 Independent Review of the Mental Health Act (1983) set out recommendations for the government on how the MHA and associated practice needed to change in its final report ‘Modernising the Mental Health Act’. This led to the development of the government’s plans to reform the Act, together with the associated policy and practice, as set out in the white paper. The proposals take forward the recommendations made by the Independent Review and the full government response. The government is now consulting on its proposals before bringing forward a bill to amend the act. This commentary highlights the white paper’s marginalisation of patients detained under part III of the MHA.

Book Chapter: • Darius Whelan, ‘Protecting Rights in Mental Health Law: The Relationship Between the Courts and Mental Health Tribunals’ in: Mary Donnelly and Claire Murray (eds.), Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester University Press, 2016), pp.208-221. Mental health law, and in particular the law concerning involuntary detention, has been a subject of protracted debate in Irish society. Ireland’s Mental Health Act 2001 requires that all involuntary admissions for mental disorder be reviewed within twenty-one days by a three-person Mental Health Tribunal (MHT). The tribunals review both procedural and substantive aspects of the person’s detention. Under section 18 of the 2001 Act, they also have the power to waive or ‘cure’ a procedural defect which may have occurred, provided the defect does not affect the substance of the order and does not cause an injustice. The tribunal system became operational in 2006, and there are hundreds of hearings each year. Inevitably, there has been a significant amount of litigation about the exact parameters of the tribunals’ powers and the relationship between the tribunals and the courts. This litigation has been an important opportunity for the courts to establish principles and standards for the tribunals. As a person’s liberty is at stake, it would be expected as a matter of policy that courts would subject the tribunal process to very strict scrutiny. However, there is strong evidence that the Irish courts are, in general, extremely deferential to the decisions of Mental Health Tribunals. The courts’ approach raises serious questions about their commitment to the rights of persons detained under mental health legislation. In this chapter, the focus is on key written judgments of the High Court and Supreme Court where the courts have in some way reviewed a decision of a Mental Health Tribunal. The issues are considered under five headings: an examination of the remedies of applications under Article 40 and judicial reviews; the MHTs’ power to review procedural matters; the power to waive procedural irregularities; statements from the courts concerning the importance of MHTs following procedures correctly and the relevance of the ECHR and the Convention on the Rights of Persons with Disabilities (CRPD). Despite some statements to the contrary, the general picture which emerges is that the courts have not engaged in robust supervision of mental health tribunals. Instead, the general tenor of the case-law has been to endorse decisions of tribunals to affirm detentions, and to limit access to the courts to the most extreme violations of procedural rights. This is a disappointing outcome, in light of the supposed rights-based focus of the Mental Health Act 2001. Full text: https://cora.ucc.ie/handle/10468/2533