Mental Health Tribunal
The Mental Health Tribunal was introduced by the Mental Health Act 2001 and constituted a fundamental new element in mental health law. The Mental Health Commission has produced procedural guidance and protocols in relation to the operation of the Mental Health Tribunal.
Mental Health Tribunals deal with
- involuntary admission order
- regrading from voluntary to involuntary
- renewals orders
- proposal to perform psychosurgery
- transitional provisions for adults
- transfers to the Central Mental Hospital
They do not deal with cases involving children or criminal matters. They are not involved in treatment and medication matters.
Admission and Review
Once the Mental Health Commission is notified of an admission or renewal it must refer the matter to a Tribunal. It must assign a legal representative to a patient and obtain a second opinion psychiatrist to examine the patient, interview the responsible consultant, psychiatrist and review the records.
The second psychiatrist should report within 14 days. This report must be sent to the Mental Health Commission and the patient’s legal representative. The Mental Health Tribunal must confirm or revoke the order within 21 days.
It conducts a review. If it is satisfied that the patient is suffering from a mental disorder and that the provisions have been complied with or if there is a failure of compliance that does not affect the substance of the order or cause injustice it must affirm the order. It was not so satisfied it must revoke the order and direct the patient to be discharged.
The first renewal order may be for 3 months, the second for 6 and the third order for 12 months. Each must be the subject of a review within 21 days. The time limit may be extended by order of the Tribunal for another 14 days, thereafter for another 14 days period on the application of the patient. If the Tribunal is satisfied that this is in the interests of the patient the admission order or renewal order is to continue in force from the date of expiration.
Members are appointed for up to 3 years. Each Tribunal has three members; a lawyer, chairperson, a consultant psychiatrist and another.
The independent psychiatrist s chosen from a panel of consultant psychiatrists maintained by the Mental Health Commission. He must be allowed access to the patient to perform his function.
The independent psychiatrist does not appear at the MHT hearing. His report will be examined. The decision of the Tribunal must be made within 21 days of the admission or renewal order.
MHT hearings are generally heard in approved centres the Mental Health Tribunal does not sit in public.
The only party to the application is the patient. The centre itself, HSE and other parties do not have legal representation.
Generally, the patient will be present. The Tribunal must endeavour to ensure that the patient understands proceedings insofar as possible.
The patient need not be present if the Tribunal is of the opinion that attendance might prejudice his or her health, well-being or emotional condition. If a Tribunal is disrupted, the exclusion of the patient may be permissible.
Generally, a patient may have access to his records. Access may be denied for reasons of protection of health, rights and freedoms of others.
The Commission assign a legal representative who must be a barrister or solicitor. There is a legal aid scheme. A patient may choose not to have a legal representative.
Tribunal members must undergo training and are subject to Garda Vetting. The representatives are generally solicitors but may be barristers. Assignment of legal representation is allowed under the Legal Aid scheme irrespective of the patient’s means.
The legal representative’s role is limited to legal matters. He or she must represent the patient’s views and wishes while acting in the best interest of the patient.
Views can be put forward that the purpose for which detention is required can be achieved in a manner that it is less restrictive of the patient’s liberty. Where a patient does not have the capacity to give instructions, representations must be in the best interest having regard to any previously known or expressed decisions or preferences.
report of an independent psychiatrist prepared is deemed admissible evidence and is sufficient evidence of its content unless contradicted. Hearings are in private. The Circuit Court is under a duty to deal with the matter as promptly as possible. There is a further appeal to the High Court on a point of law.
The MHT may direct the consultant psychiatrist to produce the patient for attendance. It may direct any witness to attend and require him or her to produce documents. It may give such other directions as are just and reasonable. It is an offence to fail to cooperate with a Tribunal.
The Tribunal determines its own procedure. It must allow for the administration of oaths, the examination or cross-examination of witnesses. The Mental Health Commission has published procedural guidelines. They reflect the basic requirements for due process and fair hearing. The decision must be made in the best interest of the patient. The procedure is inquisitorial rather than adversarial. The MHT must keep records of proceedings
Mental Health Tribunals are quasi-judicial bodies and therefore must abide by the principles of natural and constitutional justice. See the sections in relation to administrative law.
They need not follow the strict rules of evidence, but they’re obliged to ensure fair procedures. The Tribunal must be impartial. They must give a fair hearing to parties. The Tribunal must determine the matter itself. It may not simply delegate its functions to a psychiatric witness. However, the procedure is inquisitorial and not adversarial
The patient may be a witness. The witness may be examined by their own representative and cross-examined by the Tribunal.
The Mental Health Tribunal must be satisfied with the required matters in order to affirm the relevant order. It is assumed that being satisfied on the balance of probabilities would be sufficient.
The focus of the Tribunal is on the issue of whether the patient is suffering from a mental disorder and whether the requisite procedures have been followed. Noncompliance with the procedure will invalidate the order only if it would affect the substance of the order and cause an injustice
The Tribunal considers the patient’s state and condition at the date of the hearing. The Tribunal has relatively limited options. It may affirm or revoke the order. The Tribunal may not continue or discharge an order merely because suitable accommodation is not ready.
The Tribunal may consider whether the procedures comply with broader considerations of legality such as that prescribed under the European Convention on Human Rights and the Constitution.
Transfers to the Central Mental Hospital require an order of a Mental Health Tribunal. There is an appeal from the decision to the Circuit Court which must be taken within 14 days.
An appeal may be taken to the Circuit Court against a decision to confirm an admission or renewal order within 14 days. The basis is that the patient is not suffering from a mental disorder.