Mental Health Act, 2001

Rules

Involuntary admission to a psychiatric hospital

Under the Act, a person may only be admitted as an involuntary patient to an approved psychiatric centre (effectively a psychiatric hospital or psychiatric unit in a general hospital) if the person is suffering from a mental disorder. A person may not be admitted by reason only that he/she is suffering from a personality disorder, is socially deviant or is addicted to drugs or intoxicants.

The Act sets out in detail the procedure that must be followed for involuntary detention.

Mental disorder

The Act defines mental disorder as mental illness, severe dementia or significant intellectual disability where:

• Because of the illness, disability or dementia, there is a serious likelihood that the person may cause immediate and serious harm to himself/herself or to other people, or
• Because of the severity of the illness, disability or dementia, the judgement of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a deterioration in his/her condition or would prevent the administration of appropriate treatment that could only be given by such an admission and the reception, detention and treatment of the person in an approved centre would be likely to materially benefit or alleviate his or her condition.

Application for involuntary admission

An application for admission may be made by a spouse or relative, an authorised officer, a Garda or any other person. An authorised officer is an officer of the Health Service Executive (HSE) who is designated by the Chief Officer of the HSE for the purposes of making such applications.

The following people may not make an application:

• Anyone aged under 18
• An authorised officer or Garda who is a relative of the person concerned or that person's spouse
• A member of the governing body (not including a member of the HSE) or staff of the approved centre concerned
• Anyone who has an interest in the payments to be made to the approved centre
• Any medical practitioner who provides a regular medical service to the centre
• The spouse, parent or other close relative of any of the people specifically mentioned above.

The person applying must have seen the person whose admission is sought within the 48 hours prior to making the application. If the application is being made by "any other person", the application must include a statement of the reasons why it is being made, the connection of the applicant to the person whose admission is proposed and the circumstances in which the application is made.

Medical assessment

The person concerned must be examined by a medical practitioner (who is not a relative and is not involved with an approved centre) within 24 hours of the making of an application. The doctor must inform the person concerned of the purpose of the examination unless he/she considers that such information would prejudice the mental health, well being or emotional condition of that person. If the doctor considers that the person concerned is suffering from a mental disorder, he/she makes a recommendation that the person be involuntarily admitted to an approved centre (other than the Central Mental Hospital). This recommendation remains in force for seven days.

If the application is refused and a subsequent application is made, the applicant is obliged to inform the doctor about the previous application, if aware of it.

Role of the Gardai

If a Garda has reasonable grounds for believing that a person is suffering from a mental disorder and that, because of the disorder, there is a serious likelihood of the person causing harm to himself/herself or another person, the Garda may take the person into custody. If necessary, the Garda may use force to enter the premises where it is believed that the person is. The Garda must then go through the normal application procedure for involuntary detention in an approved centre. If the Garda's application is refused, the person must be released immediately. If the application is granted, the Garda must remove the person to the approved centre.

Removal to an approved centre

In general, it is the applicant who is responsible for taking the person to the centre. If this is not possible, then the doctor who made the recommendation may ask the clinical director of the centre or a consultant psychiatrist acting on his/her behalf to arrange for the person to be brought to the centre by the staff. If necessary, the Gardai may be asked to help. In this situation, the Gardai have the power to enter premises by force and may detain or restrain the patient if necessary.

Admission to an approved psychiatric centre

When the person concerned is received at an approved psychiatric centre, he/she must be examined by a consultant psychiatrist on the staff. He/she may be detained for a maximum of 24 hours in the centre for the purpose of carrying out this examination. If the psychiatrist is satisfied that the person is suffering from a mental disorder, he/she then makes an involuntary admission order. If not, the person must be released immediately.

The admission order is valid for 21 days. It authorises the reception, detention and treatment of the patient in the centre for this period.

A renewal order may extend this period by a further period of up to 3 months. This must be made by the consultant psychiatrist responsible for the patient and he/she must have examined the patient in the week before making the order. A further renewal order may be made by the same psychiatrist for a period of up to 6 months and subsequently for periods of up to 12 months at a time.

Patient's right to information

Each time an admission order or a renewal order is made, a copy must be given to the Mental Health Commission and a notice in writing must be given to the patient. The notice to the patient must include the following information:

• The section of the Mental Health Act, 2001 under which the patient is being detained
• The patient's entitlement to legal representation
• A general description of the proposed treatment to be administered during the detention
• The patient's entitlement to communicate with the Inspector of Mental Health Services
• Confirmation that the detention will be reviewed by a Mental Health Commission review tribunal
• The entitlement to appeal to the Circuit Court against a decision of a tribunal
• The right to be admitted as a voluntary patient if the patient so wishes.

Review of admission by a review tribunal

When the Mental Health Commission receives a copy of an admission or renewal order, it must

• Refer the matter to a tribunal
• Assign a legal representative to represent the patient unless the patient personally engages one
• Direct, in writing, a member of the panel of consultant psychiatrists appointed by the Commission to examine the patient, interview the consultant psychiatrist responsible for the patient's treatment and care and review the patient's records in order to decide, in the interests of the patient, whether the patient is suffering from a mental disorder. The consultant psychiatrist's report must be given within 14 days to the tribunal and to the patient's legal representative .

The tribunal must review the detention of the patient and make a decision within 21 days of the making of the order. If it is satisfied that the patient is suffering from a mental disorder and that the proper procedures have been followed (or, if they have not, that the failure does not affect the substance of the order and does not cause an injustice) then it affirms the order. If it is not satisfied, it revokes the order and directs that the patient be discharged.

In order to carry out its functions, the tribunal has similar powers to a court, including the power to require the attendance of the relevant people and the production of documents. The tribunal is, of course, obliged to respect the usual requirements of natural justice, e.g., it must ensure that the patient has copies of the reports that are being considered by the tribunal.

The tribunal must notify its decision, in writing, to:

• The Mental Health Commission
• The psychiatrist responsible for the patient's care and treatment
• The patient and his/her legal representative
• Any other person the tribunal considers should be notified.

Membership of the tribunal

The tribunal is appointed by the Mental Health Commission. It must consist of a lawyer as chairman, a consultant psychiatrist and a person who is not a lawyer or doctor. Members of the Commission may not serve on a tribunal.

Appeal to the Circuit Court

Where a patient is unhappy with the decision of the tribunal, he/she may appeal to the Circuit Court on the grounds that he/she is not suffering from a mental illness within 14 days of the receipt of notification informing him/her of the decision of the tribunal. Appeal to the High Court against the decision of the Circuit Court will only be allowed on a point of law.

Transfer of patients to other centres

The Act sets out the procedure that must be followed if a patient is transferred to another approved centre. The Commission must always be informed of any transfer.

Rights of voluntary patients to leave approved psychiatric centres

At present, there are certain restrictions on the right of voluntary patients to leave hospital - they must give 3 days notice of intention to leave. The Act proposes to change this. If the voluntary patient wants to leave and the consultant psychiatrist or a doctor or nurse on the staff considers that he/she is suffering from a mental disorder, the professional may detain the person for a maximum of 24 hours. If the voluntary patient is a child and the parents or guardian want to remove him/her, the professional may have the child detained and placed in Health Service Executive (HSE) Area custody (if the professional considers that the child is suffering from a mental disorder).

Where a voluntary patient is involuntary detained for up to 24 hours as above, the consultant psychiatrist must either discharge the voluntary patient or arrange for an examination by another consultant psychiatrist. The second consultant must issue a certificate stating that the person should be detained because of a mental disorder or must discharge the patient. If the person is detained, he/she is then an involuntary patient and all the procedures relating to information, review and appeal apply in the usual way.

Children

If a Health Service Executive (HSE) Area considers that a child is suffering from a mental disorder, the HSE Area may apply to the District Court for an order authorising the detention of the child in an approved centre. The court will order a psychiatric examination of the child (if this has not already been done) and may then make an order that the child be admitted to an approved centre for a maximum of 21 days, which may be extended. Psycho-surgery or electro-convulsive therapy may not be carried out on a child with a mental disorder without the specific approval of the court.

Consent to psychiatric treatment

This Act deals with consent to medical and surgical procedures in the case of psychiatric patients.

For the purposes of this Act, consent means consent in writing, obtained freely without threats or inducements, where:

• The consultant psychiatrist who is caring for the patient certifies that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment and
• The psychiatrist has given the patient adequate information, in a form and a language that the patient can understand, on the nature, purpose and likely effects of the proposed treatment.

Under the Act, the consent of a patient to treatment will be required except where the consultant psychiatrist considers that 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 the patient is incapable of giving such consent because of his/her mental disorder.

Psycho-surgery may not be performed unless the patient consents and it is authorised by a tribunal.

Electro-convulsive therapy may not be performed unless the patient gives consent or the patient is unable or unwilling to give consent and the therapy is authorised by the consultant psychiatrist responsible for the patient and by another consultant psychiatrist.

Where the patient is getting medicine for the amelioration of the mental disorder for a period of three months, the medicine must be discontinued unless the patient consents or, where the patient is unable or unwilling to give consent, the continued medication is authorised by the consultant psychiatrist responsible for the patient and by another consultant psychiatrist.

Restraint

Patients may not be restrained or placed in seclusion unless this is necessary for treatment or to prevent the patient form injuring himself/herself. The Commission will make rules for the use of seclusion and mechanical means of bodily restraint.

Clinical trials

People who are suffering from a mental disorder and who have been admitted to an approved centre may not take part in clinical trials.

Approved psychiatric centres

Hospitals or other in-patient facilities for the treatment of people suffering from mental illness or mental disorder must be registered. The Mental Health Commission must establish and maintain a Register of Approved Centres.

Access to the courts

Under the provisions of the Mental Health Act, 2001, each decision to involuntarily detain or extend the duration of detention of a patient will be subject to automatic review within 21 days by a mental health tribunal that will have the power to affirm or revoke admission or renewal orders and direct that the patient be discharged from the approved centre concerned. Where a patient is unhappy with the decision of the tribunal, he/she may appeal to the Circuit Court on the grounds that he/she is not suffering from a mental illness within 14 days of the receipt of notification informing him/her of the decision of the tribunal. Appeal to the High Court against the decision of the Circuit Court will only be allowed on a point of law.

Section 73 of the Mental Health Act 2001 provides that civil proceedings may only be instituted with prior leave of the High Court.

Section 74 of the Mental Health Act 2001 provides that the new Mental Health Commission may initiate proceedings in respect of breaches of the provisions of the Act within 12 months of the date of the alleged offence.