Comments on Mental Health Act 2001
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 will
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 and patient care.
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. An estimated equivalent of 5-6 WTES of Consultant
time will be required to staff the Tribunals.
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 8 -
12 full time 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.(The Department have clarified that this
definition applies to the Tribunals only.)
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.
o 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.
o 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.
o 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.
o We are concerned about the potential for inappropriate
placement of children in approved centres.
o 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.
o Right to change to voluntary status following
a period of involuntary admission is not available.
o 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.
o We are concerned that children who are ill
and require treatment may be in a position to leave hospital
and staff will have no powers to detain them without going to
court. Clear guidelines in the Regulations will be required
to cover this type of situation which could be potentially dangerous.
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, Chairman
Dr Brendan Cassidy, Honorary Secretary
21 November 2001
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