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David was a 20-year old man with no history of mental illness or drug misuse. Over a period of two months, he became increasingly withdrawn, uncommunicative and isolative. One day, he told his father that the family was being watched but that there was nothing to fear. The forces watching them were benign and posed no threat. David’s father persuaded David to see the family’s GP, who commenced treatment and made a referral to mental health services. David attended willingly and accepted outpatient care, including home support from a community mental health nurse and antipsychotic medication.
David recovered from this first episode of psychosis and returned to college. Eight months later, however, he reported that the family was again being watched but this time those watching them were less benign, and he felt he could not continue to live like this. He spent increasing amounts of time on the Internet looking up suicide methods. Following discussion with the community mental health nurse, David agreed to voluntary admission to the local psychiatry inpatient unit.
David spent four weeks there as a voluntary inpatient. At first, he reported relief at being away from the alleged surveillance but anxiety about the imagined risk to his family re-emerged. David’s antipsychotic medication was changed and he was linked with a clinical psychologist, who discussed ways of managing persistent symptoms and dealing with his illness. After four weeks in hospital as a voluntary patient, David recovered again, was discharged and resumed his studies. Two years later, David was relapse-free and graduated from his course.
If the Assisted Decision-Making (Capacity) Act 2015 was commenced, David could, at this point, with full mental capacity, make out an advance healthcare directive indicating specific treatment (eg, a certain antipsychotic medication) that he would wish to refuse under specific, clearly-identified circumstances (eg, another relapse resulting in voluntary admission). David could also use an advance healthcare directive to request a specific treatment should certain specific, clearly-identified circumstances occur at some point in the future.
A refusal of treatment, once clearly made with full mental capacity, would be legally binding, while ‘a request for a specific treatment’ would not be legally binding but would have to ‘be taken into consideration during any decision-making process’. As matters presently stand, however, the 2015 Act is not yet commenced, although preparatory work is already underway to commence it in the near future.
Involuntary psychiatric care in Ireland is governed by the Mental Health Act 2001. The Act is chiefly concerned with involuntary admission and methods for assuring standards of care through the Mental Health Commission and Inspector of Mental Health Services. The 2001 Act brought Ireland into increased alignment with international human rights standards, especially the requirements of the World Health Organisation (WHO) in relation to mental health law.
Further work needs to be done, however. Last year, the Report of the Expert Group on the Review of the Mental Health Act 2001 presented 165 recommendations relating to virtually all areas of the 2001 Act, aiming to assist with the delivery of effective care and further enhance protection of human rights. Key recommendations include proposed new principles for the legislation, to replace ‘best interests’ (see top panel), and revised criteria for involuntary admission (see bottom panel).
Other recommendations included re-definitions of ‘treatment’ and ‘voluntary patient’ (now to require mental capacity); additional protections for mentally incapacitated patients who are not detained; mandatory multidisciplinary input into detention decisions; earlier tribunals (to be retitled ‘mental health review boards’); shorter detention orders; specific measures relating to children; more inspection of community mental facilities; better access to information; and provisions to ensure that any detained patient who has the mental capacity to refuse ECT or medication has his or her decision respected.
The report also recommended that families should no longer apply for involuntary admission themselves, but should instead contact an ‘authorised officer’ of the health service and request him or her to consider doing so.
The first action based on these recommendations was the implementation earlier this year of the Mental Health (Amendment) Act 2015 which, for detained patients, limits the administration of ECT or medication (for more than three months) without consent to those who are ‘unable’ (rather than ‘unwilling’) to consent. This is a significant step forward, although the number of patients receiving ECT based solely on the ‘unwilling’ criterion has been very low in recent years (one patient in 2013 and one patient in 2012). The change is, nonetheless, an important one that introduces a mandatory capacity test for ECT without consent among involuntary patients.
Assisted Decision-Making (Capacity) Act 2015
The largest potential legislative change in the area of mental health and capacity, however, relates not to the Mental Health Act 2001, but to the Assisted Decision-Making (Capacity) Act 2015, which was passed by the Oireachtas and signed by President Michael D Higgins in 2015 but awaits commencement.
When it is commenced, the 2015 Act will place the ‘will and preferences’ of persons with impaired mental capacity at the heart of all decision-making in relation to ‘personal welfare’ (including healthcare) and ‘property and affairs’.
Mental capacity is to be ‘construed functionally’, which means that mental capacity will be time-specific and decision-specific. Lack of capacity in relation to one area will not imply lack of capacity in other areas.
All interventions under the new legislation will have to be made ‘in good faith and for the benefit of the relevant person’. The Act outlines three levels of supported decision-making for people with impaired mental capacity: ‘decision-making assistant’, ‘co-decision-maker’ (joint decision-making) and ‘decision-making representative’ (substitute decision-making).
New principles for the Mental Health Act 2001 proposed in the Report of the Expert Group on the Review of the Mental Health Act 2001
The enjoyment of the highest attainable standard of mental health, with the person’s own understanding of his or her mental health being given due respect.
Autonomy and self determination.
Dignity (there should be a presumption that the patient is the person best placed to determine what promotes/compromises his or her own dignity).
There are also procedures relating to ‘enduring power of attorney’ and ‘advance healthcare directives’ by which a person can indicate preferences for future care.
Under the legislation, an advance healthcare directive is “an advance expression made by the person, in accordance with Section 84, of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity”. There are more specific regulations and procedures in the Act, which clarifies that a refusal of treatment set out in an advance healthcare directive shall be complied with if the following three conditions are met: (1) At the time in question, the directive-maker lacks capacity to give consent to the treatment; (2) the treatment to be refused is clearly identified in the directive; and (3) the circumstances in which the refusal of treatment is intended to apply are clearly identified in the directive.
‘A request for a specific treatment’, on the other hand, “is not legally binding but shall be taken into consideration during any decision-making process which relates to treatment for the directive-maker if that specific treatment is relevant to the medical condition for which the directive-maker may require treatment”. In addition, “an advance healthcare directive is not applicable to life-sustaining treatment unless this is substantiated by a statement in the directive by the directive-maker to the effect that the directive is to apply to that treatment, even if his or her life is at risk”.
Advanced healthcare directives for involuntary patients
In the case report described in this article, David was a voluntary psychiatry inpatient. If David had become an involuntary patient under the Mental Health Act 2001 (or subject to a ‘conditional discharge order’ under Section 13A of the Criminal Law (Insanity) Act 2006), his advance healthcare directive would not be legally binding, except ‘where a refusal of treatment’ related “to the treatment of a physical illness not related to the amelioration of a mental disorder”, in which case “the refusal shall be complied with”.
Whenever the 2015 Act is commenced, a person will also be able appoint “a designated healthcare representative [who has] the power to ensure that the terms of the advance healthcare directive are complied with”.
This ‘designated healthcare representative’ can “advise and interpret what the directive-maker’s will and preferences are regarding treatment” (on the basis of the advance healthcare directive) and ‘consent to or refuse treatment, up to and including life-sustaining treatment, based on the known will and preferences of the directive-maker as determined by the representative by reference to the relevant advance healthcare directive’.
New criteria for involuntary admission under the Mental Health Act 2001 proposed in the Report of the Expert Group on the Review of the Mental Health Act 2001
The individual is suffering from mental illness of a nature or degree of severity which makes it necessary for him or her to receive treatment in an approved centre which cannot be given in the community (‘mental illness’ should be defined as “a complex and changeable condition where the state of mind of a person affects the person’s thinking, perceiving, emotion or judgment and seriously impairs the mental function of the person to the extent that he or she requires treatment”).
It is immediately necessary for the protection of life of the person, for protection from a serious and imminent threat to the health of the person, or for the protection of other persons that he or she should receive such treatment and it cannot be provided unless he or she is detained in an approved centre under the Act.
The reception, detention and treatment of the person concerned in an approved centre would be likely to benefit the condition of that person to a material extent.
An advance healthcare directive is not applicable to the administration of basic care to the ‘directive-maker’, where ‘basic care’ includes “(but is not limited to) warmth, shelter, oral nutrition, oral hydration and hygiene measures but does not include artificial nutrition or artificial hydration”.
Overall, the 2015 Act, including its provisions relating to advance healthcare directives, will represent significant changes to the mental capacity legislation in Ireland. It is not yet commenced but is expected to be commenced later in 2016. Change is certainly needed, as the present ward of court system is substantially outdated. Mental capacity legislation needs to recognise differing levels of need, offer greater protections of human rights, and be implemented in a fashion that takes account of clinical realities in the provision of care in circumstances that are often complex, difficult and changing.