General Issues

Voluntary v Involuntary

Mental health services in the broadest sense, which are regulated by the legislation cover voluntary and involuntary patients. Codes of practice and guidance of persons prepared by the Mental Health Commission apply equally to all patients. The provision for visitations by the Inspector of Mental Health Services also so applies.

Part 5 of the legislation relating to approved centres and the provisions relating to bodily restraint and seclusion apply to both voluntary and involuntary patients. The regulations in relation to approved centres apply to voluntary and involuntary patients. Voluntary patients do not require leave of the High Court to commence proceedings in relation to their admission or treatment.

Voluntary Admission

The mental health legislation states that nothing prevents a person from being admitted voluntarily into an approved centre for treatment without any application, recommendation or admission order. Nothing is to prevent a person from remaining in an approved centre after he has ceased to be liable to be detained.

The vast majority of admissions into psychiatric institutions are voluntary. Every patient not admitted involuntarily, has the right to leave a mental health facility unless the criteria for involuntary retention apply.

The mental health legislation does not apply to voluntary patients as such. A voluntary patient covers a person receiving care and treatment at an approved centre who is not the subject of an admission order or renewal order.

One of the pieces of information which must be given to an involuntary patient is it he may be admitted to the approved centre voluntarily, if he so wishes. Certain provisions s of the Mental Health Act applies to voluntary patients

Admission and Discharge

The code practice on admission, transfer and discharge provides that it is good administrative practice to use an admission form for a voluntary patient similar to that for an involuntary patient. Consent is necessary on general legal principles for specific medical treatment. Children may be admitted as voluntary patients with the consent of their guardians.

Anomalies may arise for patients who are notionally voluntary but feel coerced. Issues may arise as to the capacity of a person to consent, who is ostensibly admitted as a voluntary patient. The persons concerned may be compliant because of incapacity.

In the context of the equivalent UK legislation, it was held under the European Convention on Human Rights, that the absence of procedural safeguards to protect against arbitrary deprivations of liberty on the ground of necessity may breach Article 5 in a context such as this.

The Irish courts have been willing to regard a person as being a voluntary patient where in accordance with the legislation, he receives treatment in an approved centre other than under an admission order. However, this interpretation may be questionable under the European Convention on Human Rights in some circumstances.

Detention

There is provision for the regrading of a voluntary adult patient as an involuntary patient. Where a patient is being treated in an approved centre as a voluntary patient and indicates that he wishes to leave, but a consultant psychiatrist, other doctor or registered nurse on the staff is of the opinion that the person has a mental disorder, he or she may detain the patient for a period of up to 24 hours.

This is a temporary detention. Certain forms must be completed, records kept and matters certified. Where an adult is detained temporarily, the responsible consultant psychiatrist or another may discharge the adult or arrange for him to be examined by a second consultant psychiatrist. A personal examination is required.

Following the examination, the second psychiatrist must issue an opinion as to whether or not he or she is satisfied that the patient has a mental disorder. If he is not so satisfied, he must so certify, and the patient must be discharged. If he is so satisfied that the patient has a mental disorder and certifies that because of the disorder he should be detained, he issues a certificate in such term and the responsible consultant psychiatrist must make an admission order for reception, detention and treatment of the person in the approved centre. This procedure must be completed within 24 hours.

Decisions

The key criteria in making decisions under the Mental Health Act is that the decision should be made in the best interest of the person concerned.  Due regard is to be given to the interests of other persons who may be at risk of serious harm if the decision is not made.

Where a proposal or recommendation on admission note is proposed to be made in respect of a person or treatment is proposed, the person shall insofar as reasonably be practical be notified of the proposal and be entitled to make representations in relation to it.  Before deciding the matter, due consideration should be given to representations made.  Due regard is to be given to the right of the person to dignity, integrity to provide privacy and autonomy.

Rights Issues

Several aspects of mental health law raise significant issues under constitutional and human rights law.  There are constitutional rights to liberty, autonomy, and bodily integrity.  There are broadly dissimilar human rights under the European Convention on Human Rights.

It is the basic principle of law, set at Article 40 of the Constitution that no person shall be deprived of his personal liberty save in accordance with the law.  The courts interpret “law” in this context as not simply meaning laws as enacted.  Those laws must comply with basic due process and constitutional principles.  Compulsory detention in mental health institutions raises significant issues in this context.

The Mental Treatment Act 1945 was intended to be replaced by The Mental Health Act in 1981.  The latter legislation was never initiated.  Certain aspects of the 1945 legislation were considered outdated and were later found to be unconstitutional.  Ultimately, the Mental Health Act 2001 attempted to modernise the legislation and provide for a mechanism compatible with constitutionally complaint procedures.

Children

Where one or both parents of a voluntary child patient or persons acting in their place indicate that they wish to remove the child from an approved centre. a broadly similar provision applies. A consultant psychiatrist may certify that the child is suffering from a mental disorder and should be detained and placed in the custody of the HSE.

The HSE must unless it returns the child, apply for an involuntary detention order to the next sitting of the District Court. In the case of urgency, the application may be made in a one-sided application. The District Court must determine the necessity for the detention. The normal principles of the best interests of the child apply to the decision.