Introduction

The Irish Division of the Royal College of Psychiatrists welcomes the publication of the Mental Health Act 2001. The Division has, over the last nine years, published submissions on the 1992 Green Paper, the 1995 White Paper, the December 1999 Mental Health Bill and met with officials of the Department of Health on numerous occasions to discuss these matters.

The Division welcomes the new Act and its provisions for enhancing the protection of patients who are involuntarily detained.

In this paper we will outline our comments on the Act and its implications for general everyday clinical practice and patient care.

It is important to note that the process of involuntary detention is one, which is taken extremely seriously by psychiatrists in practice. While, understandably, there is concern about the deprivation of one's civil liberties, on the contrary it must be remembered that involuntary detention is the process whereby people obtain access to treatment which they would not receive if they were not admitted to hospital. In considering applications for involuntary detention the psychiatrist is always faced with this delicate balance of the right to treatment versus the restriction of one's freedom.

The Irish Division of the Royal College of Psychiatrists is seriously committed to the further development of the specialty of psychiatry in this country. We believe that patients with psychiatric illnesses deserve nothing short of excellence in the quality of service and treatment that they receive.

With these principles in mind the Division will be extremely anxious to work in co-operation with the new Mental Health Commission.

The following comments on the Mental Health Act have been prepared on behalf of the Division and are intended to be as constructive as possible. They are not exhaustive and hopefully will form the basis for a dialogue with the Department of Health officials and the Commission.

Our comments are arranged in Sections as follows

• Mental Health Commission

· Procedure for Involuntary Detention

• Mental Health Tribunals
• Independent Review
• Definition of a Consultant Psychiatrist
• Second Opinions
• Clinical Directors
• Training
• Involuntary Admission of Children
• Consent to Treatment
• Control and Restraint

Mental Health Commission

The Irish Division of the Royal College of Psychiatrists welcomes the establishment of the Mental Health Commission. We are concerned that adequate resources are allocated to the establishment of this Commission to ensure that it would function fully and effectively. The allocation of such resources should include the day to day running of the Commission as well as the allocation of resources at local Health Board levels to ensure full compliance with the regulations and statutory obligations of the local bodies in their dealings with the Commission.

The appointment of two consultant psychiatrists to the Commission is welcomed. The Division acknowledges the importance of these two appointments.

As the body representative of Psychiatry in Ireland, we would be happy to nominate potential candidates.

However, it is, in our view imperative that the appointment be decided by an independent transparent process of interview by a body such as the Local Appointments Commission. We understand that this is the process in other jurisdictions.

Procedure for Involuntary Detention

The Division sees the procedure for involuntary detention as a progressive step, bringing our mental health act in line with other EU countries and bringing psychiatry into the 21st century. Implementing the proposed procedures will require extra resources including manpower.

The Act places a new onus on Consultants to inform patients of their detention, reasons for it and their rights in writing. Extra administrative tasks are in danger of impinging on clinical practice time and patient care.

Mental Health Tribunals

We welcome the appointment of independent Tribunals to review detention for renewal and consent to treatment, and the added protection it affords our patients. However, it is disappointing that this same protection is not available to children and adolescents.

Again, here the appointment of the consultant psychiatrist in each Tribunal should be done through the process of application and interview to match a detailed post description.

Treating Psychiatrists will have to be available to the tribunals as required. It is preferable that the Tribunals be held in the hospital where the patient is detained to minimise disruption to clinical work.

Considerable time allocation will be required to ensure the Tribunals are in a position to carry out their task, given the fact that they can be in any part of the country on any one day.

The Irish Division is firmly of the view that all consultant psychiatrists who sit on these Tribunals must be accredited for Continuing Professional Development, whether they are in posts or not. Ideally, consultants who are working with the process of the legislation on a daily basis would be best suited to these positions.

For the smooth and effective functioning of the new Act, there will need to be a considerable amount of resources allocated to a number of areas. They include financial resources to ensure systems are put in place, resources for training of staff, medical, nursing and administrative, and resources in terms of manpower and time.

Independent Review

For every new person certified under the new Act, there will be an independent review by a consultant psychiatrist. According to the new Act, they must interview the consultant caring for the patient, review the notes and interview the patient. Following this, they will need to dictate and draw up a report, correct this and send it to the Commission. This will take at least two to three sessions for every patient plus travelling time as it is important that the independent psychiatrist is not working locally or has a connection with the hospital in which the patient is placed.

Secondly, the treating consultant psychiatrist will need a considerable amount of time to make him/herself available to this independent psychiatrist. He/she will also need to be available to the appointed legal representative for the patient that the Commission will appoint. If the Tribunal decide to go to a Hearing, the consultant psychiatrist will also have to be available for that. All of this adds up to a considerable amount of resources in terms of manpower time.

There are presently approximately 2,000 involuntary admissions each year and each involuntary admission requires an independent review.

We are very concerned about the time commitment involved. Each independent psychiatrist will be taken from his/her clinical work for one full day. This has the potential to seriously impinge on patient care.

We estimate that each review will take two-three sessions of consultant time. This is turn means 4000 - 6000 sessions a year, which in turn is equivalent in terms of time to an extra 360 - 540 WTE consultant posts.

The Irish Division is firmly of the view that all consultant psychiatrists who conduct these assessments must be accredited for Continuing Professional Development, whether they are in posts or not. Ideally, consultants who are working with the process of the legislation on a daily basis would be best suited to these positions.

Definition of a Consultant Psychiatrist

The definition of a consultant psychiatrist is ambiguous in the Act. In Section 2 it notes that a consultant psychiatrist means a consultant psychiatrist who is employed by a Health Board or by an approved centre or persons whose name is entered on the Division of Psychiatry or the Division of Child and Adolescent Psychiatry of the Register of Medical Specialists maintained by the Medical Council of Ireland.

However, under the Section dealing with Tribunals, Section 48, subsection 12, the consultant psychiatrist in this Section includes a person who is employed as a consultant psychiatrist by a Health Board or an approved centre, not more than seven years before his/her appointment under this Section. This area needs clarification.

Second Opinions

Involuntary patients who require treatment with ECT will require a second opinion as will patients who are unable or unwilling to give consent to treatment with medication and need to remain on medication beyond three months. This independent review will be required every three months as long as consent is not available. This will require a formal method of acquiring second opinions within each treating centre. Again to provide such a second opinion would take a considerable amount of time and will remove a consultant psychiatrist from their own patients for a number of hours.

It is impossible to see how this can work unless a system of a second layer of consultant on call rota is put in place with additional manpower resources to provide the reviews to ensure no diminution in the present level of services provided.

The issue of second opinions for consent to treatment and continuing on medication will be of particular significance in the areas of old age psychiatry and intellectual disability. These services care for a large number of patients who are unable to give consent to treatment and will require review every three months by an independent psychiatrist.

Protocols will be required for such reviews and whether the reviewing psychiatrist providing the independent review works in the same centre or is fully independent and works in a different centre.

Voluntary patients requiring detention. Voluntary patients who wish to leave hospital but who are felt to be unwell enough to do so may be detained by nursing or medical staff for twenty-four hours. During this twenty-four hours a second consultant psychiatrist will be required to provide an independent review. This will pose considerable difficulties especially at weekends. Also in community based services, most consultants are only available in the in-patient unit for less than half of their working hours. Most sessional splits for community psychiatrists are usually eight sessions to the community and three to the in-patient unit of the hospital to which they are attached. Therefore, even during a normal working week, it may prove difficult to have such an opinion carried out.

Because of these difficulties both at weekends and in community based services, a second layer of on-call Consultants psychiatrists will be required. It would require 2 consultants per catchment area to ensure continued quality of patient care and compliance with the Act.

Clinical Directors

Under the new Act, Clinical Directors have a considerable amount of responsibility as a number of the functions are directly carried out by them and they have a reporting role with the Commission. However, compared to the previous Mental Treatment Act, their role itself is not clearly defined. There has been no clear definition of a Clinical Director and their duties and responsibilities.

We would wish to work with the Department and Health Boards to provide one under the regulations that may be introduced by the Minister under the new Act.

Clerical/Administrative Matters

Due consideration will need to be given to the provision of clerical and administrative resources to support compliance with the Act. It is generally the experience of the Psychiatric Services that there is quite a shortfall in clerical staff numbers, IT support etc.

The Irish Division also considers it vitally important that administrative and clerical staff who will be dealing with a considerable amount of forms and correspondence related to the Act have adequate training.

It is important that uniform protocols are put in place across all Health Boards and hospitals to deal with such correspondence and duties under the Act. This will ensure that there are no problems resulting from its implementation. It will no doubt require again an extra allocation of resources to fund manpower and time for administrative and clerical staff to undertake these duties.

Training

The Irish Division wishes to work with the Department on setting up workshops and protocols for the implementation of the new Act. It would be in the benefit of all involved if a uniform format for procedures under the Act, an information pack and training procedure can be put in place by the Department and the Division.
This could then be carried out at workshops in local areas to train all staff involved. This would also require input from nursing and administrative staff. The provision of such training and protocols and perhaps a Handbook for staff dealing with the new Act would greatly reduce any confusion or difficulties that may arise during its implementation.

We look forward to working with the Department of Health on such issues.

Involuntary Admission of Children

Section 25 deals with the process and procedures for involuntary admission of children. Children who appear to be suffering from a mental disorder and are unlikely to obtain treatment (because parents are absent or refuse consent)may be referred by a Health Board to the District Court for an order authorising the detention of a child in an approved centre. A Consultant Psychiatrist report must be provided to the Court in this instance.

However, in a limited number of circumstances where parents are absent or parents refuse consent for admission of the child, a Health Board may make an application to the Court without any prior examination of the child by a Consultant Psychiatrist. The Court, if it is satisfied that the child is suffering from a mental disorder, may make an order for 21 days, this can then be reviewed for 3 months and further periods of 6 months. Each renewal would be subject to review by the District Court and an examination by a Consultant Psychiatrist is required in each case.

• Section 25 refers to a "Health Board" which may make an application to the Court for involuntary admission to an approved centre. It would be important that there be accurate definition of 'who' in a Health Board is in a position to make this application. Admission to an approved centre is a medical mental health issue. For this reason, we recommend that the process involve an examination by a medical practitioner in the same manner as adults are afforded the opportunity for examination by their general practitioner prior to the application being made.
• Under Section 25(3) and (4) there is a provision where children may actually be admitted to an approved centre by order of the Court without any examination by a Consultant Psychiatrist. We view this as a possible serious infringement of children's civil liberties. In these circumstances, it is the view of the Division that the provisions of the Child Care Act 1991, Section 13, subsection 7, should be invoked in the first instance rather than the Mental Health legislation, where there has been no medical examination.
• As admission orders are only available through the Courts to this age group, again we are concerned about the time and resource issues that will result. The process will be cumbersome and time consuming and is likely to take Consultant Psychiatrists away from their regular clinical practice for several hours at a time in order to satisfy the needs of the Court in terms of a report and presentation of same to the Court.
• We are concerned about the potential for inappropriate placement of children in approved centres.
• The Mental Health Review Tribunals are not available to children in this age group. It is our view that children should have been afforded the same right to independent review as adults.
• Right to change to voluntary status following a period of involuntary admission is not available.
• No definition of mental disorder as it applies specifically to children is included in the Act. Our recommendation is that conduct disorder be an exclusion criteria for admission similar to the provisions of Section 8, subsection 2, which excludes from involuntary admission a person solely by reason of the fact that they are suffering from a personality disorder, is socially deviant or addicted to drugs or intoxicants.

Consent to Treatment

The Division endorses the safeguards afforded to patients under the provisions of Part IV of the Act. However, we are concerned about the under 18 age group, the elderly and intellectual disabled.

Under the 1997 Non-fatal Offences Against the Person Act, a 16 year old can consent to medical and surgical treatment without parental input. It is a matter of grave concern that mental health legislation appears to assume that they are incapable of giving consent to psychiatric treatment. Also, in the case of children who are not admitted on an involuntary admission order, it is too simplistic to assume that parental consent automatically indicates that the child has consented. Again, if renewal of medication is required for children, it is subject to independent review by another Consultant Psychiatrist which again will require availability of a treating consultant to undertake this review.

The new Mental Health Act is essentially an involuntary detention Act and correctly is an attempt to address civil liberties and civil rights issues and professional standards in relation to this population. It is, therefore, imperative that all citizens are treated equitably and no group is discriminated against by virtue of having a disability. The vast majority of the adult population with Intellectual Disability/Mental Handicap are legally incompetent, are neither voluntarily or compulsorily detained within their residential centres and have no capacity to give informed consent to any type of medical or psychiatric intervention and between thirty to fifty per cent are on psychotropic medication without consenting to same, and the vast majority have no access to acute in-patient facilities. There is no inspectorate system. They are not currently involuntary detained and will therefore not have access to the Mental Health Commission and Tribunals. Yet, as they are mentally disordered adults who are incapable of giving informed consent, the standards and requirements in relation to second opinions for consent to treatment and continuing medication, should be the same for all citizens.

Control & Restraint

We would like to work with the commission, along with representatives of the nursing profession on these regulations.

Certification on General and Surgical Wards.

Some Psychiatrists have raised the issue of detained patients on medical / surgical wards. This issue needs clarification.

Cross Border Issues

Irish Psychiatrists have identified a need for harmonisation of mental health legislation between the two jurisdictions of Northern Ireland and the Republic of Ireland. It may be necessary for patients to be transferred form one jurisdiction to the other but legislative differences can make this difficult. We are aware that there is little or no opportunity to change the Mental Health Act 2001. However the Mental Health Act 1983 as applies to Northern Ireland is presently under review. It would be advantageous if the Department of Health in their cross border initiative groups could encourage harmonisation of legislation in both jurisdictions.

Conclusion:

We look forward to the opportunities for discussion of this Act and its implementation with the Department of Health.

The Division is also very keen to work with the Commission in a co-operative fashion to promote and to determine high standards of practice and service provision.

The Irish Division is also anxious to liaise with the Department on areas that were included in the Green/White Paper but excluded from the final Mental Health Act. It is noted that the Minister has mentioned such issues in the Dáil debates and has said that they are being dealt with by the Department at the current time. These issues include

• Mentally Disordered Offenders;
• Adult Care Orders , and
• the issue of psychiatric care and treatment for those aged between 16 and 18 years of age.

The Division is aware that the Department is working on these issues and would be grateful for a timetable of when the Department expects these areas to be finalised. We would be available to meet or provide representatives to the Department to continue work on these areas.

Dr Colette M. Halpin Dr Brendan Cassidy
Chairperson Hon. Secretary

November 2001