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Monitoring the Mental Health Act amendments

By Mindo - 22nd May 2020

Amendments to the Mental Health Act should be reversed as soon as it is safe to do so post Covid-19

In late March, the Emergency Measures in the Public Interest (Covid-19) Act 2020 was passed by the Dáil and Seanad, and signed by President Michael D Higgins. The Act’s major provisions made the headlines, especially the financial aid to allow the Government to contribute to wages, the freeze on rents and the ban on evictions.

Little attention, if any, was devoted to some of the other measures, including significant amendments to the Mental Health Act, 2001. These changes should not pass unnoticed.

Involuntary admission for the treatment of severe mental illness (‘sectioning’) places substantial limitations on a core human right — liberty. This should never be treated lightly.

People with mental illness are at increased risk of violations of human rights, especially in emergencies. Temporary measures have an unpleasant habit of becoming permanent, so the recent amendments to the Mental Health Act 2001 require careful attention.

The new legislation did not change the process of involuntary admission itself, but it did make significant changes to review procedures. At present, an independent psychiatrist examines each involuntary patient, reviews their records, speaks with their treating psychiatrist and supplies a report to a mental health tribunal.

Within 21 days of each involuntary order, a tribunal hearing takes place in the psychiatry inpatient unit. The tribunal comprises three people: A legal chairperson, a psychiatrist, and a lay person. The tribunal members read the independent psychiatric report, hear from the treating psychiatrist, listen to the patient’s legal representative and hear from the patient themselves, if they choose to attend. The tribunal decides, by majority vote, whether the involuntary order stands or the patient is discharged from it.

The recent amendments make several changes to this process. While the independent psychiatrist must still review the patient’s records and speak with the treating psychiatrist, their examination of the patient can occur “in person” or by “other appropriate means”. Presumably, this means remote assessment by video technology or telephone. The legislation also suggests that the independent psychiatrist might be not able to examine the patient at all and, if this is the case, they must explain this in their report.

Rather than all tribunals comprising three persons, the new measures permit the Mental Health Commission to appoint a one-person tribunal when is appears that, “due to the exigencies of the public health emergency”, a three-person tribunal cannot be assembled. The sole tribunal member will be a practising barrister or solicitor with at least seven years’ experience.

In addition, the patient’s treating psychiatrist can now submit a written report to the tribunal rather than attending a physical hearing, although they can phone in to a tribunal conducted by secure conference call. The patient, too, can present their case “by way of representations in writing made by the patient or his or her legal representative” or phone in. Tribunals also have extended powers to prolong orders by 14 days if necessary, owing to the emergency.

These measures remove the requirement for independent psychiatrists and tribunal members to attend psychiatry inpatient units and will thus reduce the spread of Covid-19. The measures also recognise that the health service will come under unprecedented pressure as staff members fall ill or are redeployed. To this extent, the emergency provisions are sadly necessary and relatively pragmatic.

These changes come, however, at significant cost to the patient. It is, for example, pragmatic but regrettable that the independent psychiatric examination will not necessarily occur “in person” (or, indeed, at all). It is also regrettable that the voice of the lay person might be absent from tribunals, although the one-person tribunal can consult a psychiatrist if needed.

Notwithstanding these drawbacks, there are reasons to be optimistic. Ireland’s rate of involuntary admission is relatively low, at less than half of that in England. In addition, the emergency provisions introduced here are far less concerning than those in the UK, where mental health services continue to move in a disturbingly custodial direction.

Ireland’s Mental Health Commission is very robust by international standards and is especially assertive in its protection of patients’ rights. It is to be expected that one-person tribunals will only occur if absolutely necessary. It is also to be hoped that these measures will be terminated as soon as is feasible. For now, they are in place until 9 November, but can be extended by the Government if needed.

Perhaps the greatest concern here is the symbolic one: That involuntary patients will no longer physically attend a tribunal to present their case in person, although they can phone in. This limitation is necessary in the context of Covid-19, but it is deeply regrettable. xOne of the most formative moments of my training was the first tribunal that I attended, where I heard a profoundly ill patient present their views to the tribunal in person. The patient’s logic was difficult to follow, but their will, preferences and emotions were clear. The physical tribunal hearing afforded the patient a dignified, respectful space in which they were heard. This remains a uniquely powerful and often moving experience for patients and clinicians alike. Covid-19 might well diminish this opportunity for our patients for now, but it is our obligation to restore this process in full as soon as we possibly can.

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