Treatment for Mental Disorders and Protection of Patients’ Rights

Dr Mary Donnelly

Law Faculty

UniversityCollegeCork

Mental Health and Human Rights Seminar

Centre for Criminal Justice and Human Rights

Law Faculty

UniversityCollegeCork

25 October 2007

This paper will consider a range of human rights issues arising in the context of treatment for a mental disorder. For this reason, its focus is not just on patients who have been compulsorily admitted under the Mental Health Act 2001 (“MHA”) and who come within the treatment framework set out in the MHA but also on those patients in psychiatric facilities (the vast majority) whose treatment is not covered by the MHA and which, currently is subject to the most minimal legal oversight.

The paper begins with a reminder of the current statistics regarding patients in psychiatric facilities. It then considers the MHA and the framework for treatment provision contained in the Act. Although recognising the MHA as an important development and an undoubted improvement on the prior legal framework, the paper identifies a number of ways in which, in my view, the MHA fails to accord with appropriate human rights standards. The paper then considers the position of the majority of patients in psychiatric facilities, so-called “voluntary” patients. Many of these patients may be in an exceedingly vulnerable position - they may lack legal capacity; they may have nowhere else to go; they may be “voluntary” only in the sense of having agreed to admission only in order to avoid formal admission. For these patients, the only current model of legislative protection, the wardship jurisdiction, is contained in the Lunacy Regulation (Ireland) Act 1871. It hardly needs to be stated that this Act provides a wholly inadequate protection for patients’ rights and the Law Reform CommissionReport on Vulnerable Adults and the Law (LRC 86-2003) has appropriately recommended the introduction of a new framework for adult guardianship. While endorsing this position, I will argue that the specific consequences of the reform process for “voluntary” patients with mental disorders must be considered. In particular, I will be arguing about the need for “joined up thinking” – a necessary linkage between the MHA and any new legal framework developed.

The main human rights provisions upon which I will be drawing arise under the Irish Constitution (in particular, the unenumerated rights to autonomy, to bodily integrity, to dignity and to protection from inhuman and degrading treatment arising under Article 40.3.1) and under the European Convention on Human Rights – in particular, Article 3 (the absolute right to protection from torture inhuman and degrading treatment) and Article 8 (the right to private and family life) and Article 5 (the right to liberty) which may be implicated in the administration of sedation if this is to such a degree as to amount to a “deprivation of liberty”.

In addition, I will be drawing on international and Council of Europe human rights principles, including the UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care(General Assembly Resolution 119, 1991); Recommendation 2004(10) of the Committee of Ministers to Member States Concerning the Protection of the Human Rights and Dignity of Persons with Mental Disordersand the right to the highest attainable standard of health as recognised by Article 12 of the International Covenant on Economic, Social and Cultural Rights.

Treatment for Mental Disorders in Ireland: The Statistics

Since its inception, the Mental Health Commission (“MHC”) has improved greatly the available statistics regarding patients in psychiatric facilities. In its Annual Report 2006, the MHC provides detailed breakdowns in terms of catchment areas and various other differentials. For current purposes, the table below serves to remind us of the breakdown in terms of patients’ legal status. In reviewing the table, one point to note is that simply because a patient is not recorded as a ward of court does not mean that he or she has legal capacity. The wardship provisions may not be activated unless there is a need to do so, typically where property issues arise. Interestingly, also, the statistics show a marked chance from the previous year regarding status: in 2005, 80.3% of patients were voluntary and 14.9% were involuntary.

Resident inpatients 2006 (MHC Annual Report 2006, p 51)

Legal status categories / Male / Female / All inpatients in each legal status category
Voluntary Patient / 1,488 (82.0%) / 1,342 (88.5%) / 2,830 (84.9%)
Patient (Involuntary Patient) / 206 (11.3%) / 132 (8.7%) / 338 (10.1%)
Ward of Court / 45 (2.5%) / 37 (2.4%) / 82 (2.5%)
Court Orders / 76 (4.2%) / 6 (0.4%) / 82 (2.5%)
Total (row %) / 1,815 (54.5%) / 1,517 (45.5%) / 3,332 (100%)

The MHA: the Framework for Treatment

Application

As noted above, the MHA applies only to patients who have been “admitted” under the Act. In order for a patient to be admitted, he or she must suffer from a mental disorder as defined in section 3 as “mental illness, severe dementia, or significant intellectual disability.” Further, one of two possible conditions must apply:

  • because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons (a risk-based criterion) (section 3(1)(a))
  • because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could only be given by such admissionand the treatment would be “likely to benefit or alleviate the condition (a therapeutic criterion) (section 3(1)(b)

In relation to the second condition, it is important to note that there is no statutory definition of “impaired judgment” and no indication of how this relates to the “capacity” requirement which applies in relation to treatment. Although the condition in section 3(1)(a) has been the subject of judicial comment (O’D v Kennedy and ors [2007] IEHC 129), there has been no further development at a judicial level of what the term “impaired judgment” in fact means in a legal sense.

The Principles

Section 4 of the MHA requires a number of core principles to be upheld. These include:

  • the requirement to act in the person’s best interests (although note the limitation in section 4(1))
  • the patient’s entitlement to be notified and to make representations regarding a recommendation, an admission order or a decision to administer treatment
  • all decisions must have “due regard” for the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy

The Treatment Provisions in the MHA

The treatment provisions are contained in s 25 and ss. 56-61. At first sight, these appear protective of patient rights, in particular, appearing to endorse a capable patient’s right to refuse treatment.

Section 57 states that patient consent is required:

[E]xcept where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent

Thus, unless the patient is incapable of giving consent, it appears that his or her consent is needed for treatment and that, accordingly, that he or she has the right to refuse treatment. Furthermore, the definition of consent in s.56 imposes a requirement on consultant psychiatrists to provide adequate information to patients in “a form and language the patient can understand”.

An interesting procedural detail is that the person who determines whether or not the patient is capable is the consultant psychiatrist who prescribes the treatment in the first place (s.56) and who, presumably, has a therapeutic concern to ensure that the consent is provided.A patient has no legal entitlement to a second opinion in this regard.

This gives rise to concerns regarding the independence of the capacity assessment process. In considering whether this in fact poses a real difficulty, it is noteworthy that in two leading UK policy papers on mental health law (Report of the Expert Committee Review of the Mental Health Act 1983 (Department of Health, HMSO, 1999) (the Richardson Report), para 2.9 and the Review of the Mental Health (Scotland) Act 1984:New Directions (Edinburgh: Scottish Executive, 2001) (the Millan Report)), contributions from psychiatrists identified this as a cause for concern (in the context of a debate about moving to a capacity-based treatment model in the UK).

Closer consideration shows that for most treatments, this requirement for consent is overridden. Thus, for ECT (s. 59) and for the ongoing administration of medication for more than 3 months, treatment may be provided where the patient is “unable or unwilling to give consent” provided it receives the approval of the patient’s own consultant psychiatrist and the authorisation of a second consultant psychiatrist.” This gives rise to a number of human rights issues which will be discussed further below. Two further points to note are first, that for psycho-surgery (an extremely rare procedure in modern times), both the consent of a capable patient and the approval of a Mental Health Tribunal are required (s.57). This is notable because it is the only role played by the Tribunal system in the treatment context. Secondly, for minor patients (defined in the MHA as “under the age of 18 years”), court approval is required before psychosurgery may be performed or a programme of ECT administered (s. 25) and ongoing medication (more than 3 months) requires the authorisation of a second consultant psychiatrist (s.61).

The MHC Rules

The statutory provisions are supplemented byCodes of Practice and Rules drawn up by the MHC. Of particular interest to the current discussion are the Rules Governing the Use of Electro-Convulsive Therapy (R-S59(2)/01/2006 and the Rules Governing the Use of Seclusion and Mechanical Means of Bodily Restraint (R-S69(2)/02/2006)) and the Code of Practiceon the Use of Physical Restraint in Approved Centres (COP-S33(3) (the latter two are relevant because the administration of treatment to an unwilling patient may well require the use of restraint).

The ECT Rules provide detailed medical guidance regarding methods of administration, use of anaesthetic, materials and equipment, staffing, documentation. However, on the issue of administration of ECT to unwilling patients, the Rules do nothing more than repeat the provision in the MHA. The Rules on Mechanical Restraint (defined as “the use of devices or bodily garments for the purpose of preventing or limiting the free movement of a patient’s body”) require that mechanical restraint may only be used in the best interests of the patient; where the patient poses an immediate threat of serious harm to himself, herself of others and where all alternatives to manage unsafe behaviour have been considered. The Code of Practice on Physical Restraint has as a key principle that the use of physical restraint shall be used only as a last resort and shall not be prolonged beyond the period of time necessary for its purpose.

Assessing the MHATreatment Framework from a Human Rights Perspective

As a preliminary, it is important to note that from a human rights perspective, the MHA represents an important step forward when compared with the position prior to its introduction. Among the developments to be welcomed are the establishment of the MHC, the statement of underlying rights-based principles and the procedures for review of admission. In the treatment context, the improvement wrought by the MHA is most clearly evident in relation to the requirement for consent, the requirement that appropriate information be provided and the fact that all patients subject to the MHA, including patients who lack legal capacity, for the first time, have a right to have a second opinion regarding treatment decisions which involve ECT or ongoing medication. With ongoing medication, this review takes place at periodic intervals of ever three months. I will argue below that, from a human rights perspective, this review procedure is insufficiently independent (the patient’s own consultant psychiatrist chooses the psychiatrist who provides the second opinion). Nonetheless, it must be acknowledged that the procedure does at least provide some degree of overview of treatment decisions and accordingly some protection for patients against risks of inappropriate treatment.Furthermore, under the Mental Health Act 2001 (Approved Centres) Regulations 2006SI 551 of 2006) each patient has anentitlement to an “individual care plan”. This is defined in the Regulations as “a documented set of goals developed, regularly reviewed and updated by the resident’s multi-disciplinary team, so far a practicable in consultation with each resident”. The requirement for patient consultation (again regardless of the patient’s capacity) is to be welcomed and accords with the international human rights principles.

However, there are still human rights concerns regarding the treatment aspects of the MHA, which I have discussed at some length elsewhere (Donnelly “Treatment for a Mental Disorder: The Mental Health Act 2001, Consent and the Role of Rights” (2005) 40 Irish Jurist 220).

First, the provision permitting the administration of treatment to unwilling patients (provided the procedural steps are met) gives rise to important concerns. For patients who are legally capable, the administration of treatment against their will constitutes a clear breach of their right of autonomy/self-determination (as protected under the Irish Constitution (In re a Ward of Court [1996] 2 IR 79) and Article 8 of the ECHR (Pretty v UK[2002] ECHR 2346/02). As acknowledged by the Supreme Court in In re a Ward of Court, the right of autonomy is not absolute; it may be overridden on grounds of inter alia protection of others. It may be that, in some situations, the circumstances surrounding the administration of treatment to a legally capable patient against his or her will may constitute a justifiable overriding of the right to autonomy. However, the MHA permits a wholesale overriding of the right for patients who are to receive the most serious of treatments – ECT and long term medication. This takes place with the most minimal of overviews (the authorisation of a second consultant psychiatrist, chosen by the patient’s own consultant psychiatrist). At a very minimum, patients should have a wholly independent overview(by an independently appointed psychiatrist) before the provision of treatment which constitutes a breach of their right of autonomy be administered.

Secondly, the provision of treatment to unwilling patients raises other rights based issues. It is important to remember that patients need not be legally capable in order to be unwilling to have a certain form of treatment. As Hale LJ (now Baroness Hale), noted in R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419:

[T]he degradation of an incapacitated person shames us all even if that person is unable to appreciate it, but in fact most people are able to appreciate that they are being forced to do something against their will even if they are not able to make the decision that it should or should not be done.

For legally incapable patients (as well as for patients who have legal capacity), the administration of treatment against their will raises issues relating to the right to bodily integrity, to privacy, to dignity and to be free from inhuman and degrading treatment. For convenience, I will consider the last of these rights first.

The right to be free from inhuman and degrading treatment is a constitutional right (The State (C) v Frawley[1976] IR 365) and an absolute right under Article 3 of the ECHR. Irish constitutional jurisprudence on the right is very limited; however, the ECHR right has been widely discussed including in the context of treatment for a mental disorder. As a preliminary, it is important to note that Article 3 will only be engaged when treatment reaches a severity threshold. It must involve “actual bodily injury or intense physical or mental suffering” (Pretty v UK[2002] ECHR 2346/02). Here, the inappropriate use of restraint is relevant; so too is the effect of administration of treatment which causes an especially traumatic response in the patient.

In the leading ECHR case in the area, Herczegfalvy v Austria(1992) 15 EHRR 437, the European Court of Human Rights (“ECtHR”) had no difficulty holding that the use of a security bed and handcuffs in order to forcibly administer medication and feeding, reached the threshold for Article 3. However, the ECtHR in Herczegfalvyalso held that the administration of treatment which was “medically” or “therapeutically” necessary did not contravene Article 3. Therefore, so long as the treatment provided to the unwilling patient is medically necessary, it is unlikely to contravene Article 3. UnderHerczegfalvy, however, the important factor before this will arise is that the medical necessity must be “convincingly shown” to exist. The weak second opinion system contained in the MHA raises questions regarding whether in fact the medical necessity can be “convincingly shown” to exist. Certainly, English caselaw on Article 3 has required an independent hearing in this regard (see R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419; R (on the application of N) v Doctor M and Others[2002] EWCA Civ 1789).

It is unlikely, one hopes,that the way in which treatment is provided in Irish psychiatric facilities will often reach the minimum threshold for Article 3. However, other patient rights are infringed by the provision of treatment to unwilling patients. Once again, it is irrelevant that the unwilling patient has legal capacity or not. In the words of the ECtHR in Storck v Germany[2005] ECHR 406, “even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8, if it is carried out against the individual’s will.” Similarly, under Irish constitutional jurisprudence, the fact that a person lacks legal capacity does not impact on the protection to be afforded to his or her right to bodily integrity, dignity and privacy. While these rights are not absolute rights, they should be interfered with only where a reasonable case that interference is necessary has been established. Again, in my view, the inadequate second opinion review system under the MHA fails to provide an appropriate mechanism to determine the necessity of the interference with the patient’s rights and correspondingly provides insufficient protection for these rights.

The Future

In the Review of the Operation of the Mental Health Act 2001 (DoHC, 2007), the then Minister (Mr Tim O’Malley TD) rejected submissions that only a Mental Health Tribunal should be permitted to authorise ECT. He noted (p 27) that the legislation, which constituted a significant improvement on the previous position, had only been in place since 2006. However, he also indicated that any review of the Rules on ECT by the MHC should ensure that international best practice was taken into account. In this context, it should be noted that the international trend (including most recently the Mental Health Act 2007 in England and Wales) has been to prohibit the administration of ECT without the consent of a capable patient. In my view, the Minister’s caution was unfortunate. The referral of ECT to a MHT would constitute an important development in the protection of patient rights. However, even the more minimal step of requiring an independent second opinion would have been some progress and this was not accepted as an option.