Treatment for Mental Disorders and Protection of Patients’
Rights
Dr Mary Donnelly
Law Faculty
University College Cork
Mental Health and Human Rights Seminar
Centre for Criminal Justice and Human Rights
Law Faculty
University College Cork
25 October 2007
This paper will consider a range of human rights issues arising in the context of treatment
for a mental disorder. For this reason, its focus is not just on patients who have been
compulsorily admitted under the Mental Health Act 2001 (“MHA”) and who come within
the treatment framework set out in the MHA but also on those patients in psychiatric
facilities (the vast majority) whose treatment is not covered by the MHA and which,
currently is subject to the most minimal legal oversight.
The paper begins with a reminder of the current statistics regarding patients in psychiatric
facilities. It then considers the MHA and the framework for treatment provision
contained in the Act. Although recognising the MHA as an important development and
an undoubted improvement on the prior legal framework, the paper identifies a number of
ways in which, in my view, the MHA fails to accord with appropriate human rights
standards. The paper then considers the position of the majority of patients in psychiatric
facilities, so-called “voluntary” patients. Many of these patients may be in an
exceedingly vulnerable position - they may lack legal capacity; they may have nowhere
else to go; they may be “voluntary” only in the sense of having agreed to admission only
in order to avoid formal admission. For these patients, the only current model of
legislative protection, the wardship jurisdiction, is contained in the Lunacy Regulation
(Ireland) Act 1871. It hardly needs to be stated that this Act provides a wholly
inadequate protection for patients’ rights and the Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 86-2003) has appropriately recommended the
introduction of a new framework for adult guardianship. While endorsing this position, I
will argue that the specific consequences of the reform process for “voluntary” patients
with mental disorders must be considered. In particular, I will be arguing about the need
for “joined up thinking” – a necessary linkage between the MHA and any new legal
framework developed.
The main human rights provisions upon which I will be drawing arise under the Irish
Constitution (in particular, the unenumerated rights to autonomy, to bodily integrity, to
dignity and to protection from inhuman and degrading treatment arising under Article
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40.3.1) and under the European Convention on Human Rights – in particular, Article 3
(the absolute right to protection from torture inhuman and degrading treatment) and
Article 8 (the right to private and family life) and Article 5 (the right to liberty) which
may be implicated in the administration of sedation if this is to such a degree as to
amount to a “deprivation of liberty”.
In addition, I will be drawing on international and Council of Europe human rights
principles, including the UN Principles for the Protection of Persons with Mental Illness
and for the Improvement of Mental Health Care (General Assembly Resolution 119,
1991); Recommendation 2004(10) of the Committee of Ministers to Member States
Concerning the Protection of the Human Rights and Dignity of Persons with Mental
Disorders and the right to the highest attainable standard of health as recognised by
Article 12 of the International Covenant on Economic, Social and Cultural Rights.
Treatment for Mental Disorders in Ireland: The Statistics
Since its inception, the Mental Health Commission (“MHC”) has improved greatly the
available statistics regarding patients in psychiatric facilities. In its Annual Report 2006,
the MHC provides detailed breakdowns in terms of catchment areas and various other
differentials. For current purposes, the table below serves to remind us of the breakdown
in terms of patients’ legal status. In reviewing the table, one point to note is that simply
because a patient is not recorded as a ward of court does not mean that he or she has legal
capacity. The wardship provisions may not be activated unless there is a need to do so,
typically where property issues arise. Interestingly, also, the statistics show a marked
chance from the previous year regarding status: in 2005, 80.3% of patients were
voluntary and 14.9% were involuntary.
Resident inpatients 2006 (MHC Annual Report 2006, p 51)
Legal status categories
Male
Female
Voluntary Patient
Patient (Involuntary
Patient)
Ward of Court
Court Orders
Total (row %)
1,488 (82.0%)
206 (11.3%)
1,342 (88.5%)
132 (8.7%)
All inpatients in each
legal status category
2,830 (84.9%)
338 (10.1%)
45 (2.5%)
76 (4.2%)
1,815 (54.5%)
37 (2.4%)
6 (0.4%)
1,517 (45.5%)
82 (2.5%)
82 (2.5%)
3,332 (100%)
The MHA: the Framework for Treatment
Application
As noted above, the MHA applies only to patients who have been “admitted” under the
Act. In order for a patient to be admitted, he or she must suffer from a mental disorder as
defined in section 3 as “mental illness, severe dementia, or significant intellectual
disability.” Further, one of two possible conditions must apply:
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

because of the illness, disability or dementia, there is a serious likelihood of the
person concerned causing immediate and serious harm to himself or herself or to
other persons (a risk-based criterion) (section 3(1)(a))
because of the severity of the illness, disability or dementia, the judgment of the
person concerned is so impaired that failure to admit the person to an approved
centre would be likely to lead to a serious deterioration in his or her condition or
would prevent the administration of appropriate treatment that could only be
given by such admission and the treatment would be “likely to benefit or alleviate
the condition (a therapeutic criterion) (section 3(1)(b)
In relation to the second condition, it is important to note that there is no statutory
definition of “impaired judgment” and no indication of how this relates to the “capacity”
requirement which applies in relation to treatment. Although the condition in section
3(1)(a) has been the subject of judicial comment (O’D v Kennedy and ors [2007] IEHC
129), there has been no further development at a judicial level of what the term “impaired
judgment” in fact means in a legal sense.
The Principles
Section 4 of the MHA requires a number of core principles to be upheld. These include:
 the requirement to act in the person’s best interests (although note the limitation
in section 4(1))
 the patient’s entitlement to be notified and to make representations regarding a
recommendation, an admission order or a decision to administer treatment
 all decisions must have “due regard” for the need to respect the right of the person
to dignity, bodily integrity, privacy and autonomy
The Treatment Provisions in the MHA
The treatment provisions are contained in s 25 and ss. 56-61. At first sight, these appear
protective of patient rights, in particular, appearing to endorse a capable patient’s right to
refuse treatment.
Section 57 states that patient consent is required:
[E]xcept where, in the opinion of the consultant psychiatrist responsible for the
care and treatment of the patient, 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 by reason of his or her mental disorder the patient
concerned is incapable of giving such consent
Thus, unless the patient is incapable of giving consent, it appears that his or her consent is
needed for treatment and that, accordingly, that he or she has the right to refuse treatment.
Furthermore, the definition of consent in s.56 imposes a requirement on consultant
psychiatrists to provide adequate information to patients in “a form and language the
patient can understand”.
An interesting procedural detail is that the person who determines whether or not the
patient is capable is the consultant psychiatrist who prescribes the treatment in the first
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place (s.56) and who, presumably, has a therapeutic concern to ensure that the consent is
provided. A patient has no legal entitlement to a second opinion in this regard.
This gives rise to concerns regarding the independence of the capacity assessment
process. In considering whether this in fact poses a real difficulty, it is noteworthy that in
two leading UK policy papers on mental health law (Report of the Expert Committee
Review of the Mental Health Act 1983 (Department of Health, HMSO, 1999) (the
Richardson Report), para 2.9 and the Review of the Mental Health (Scotland) Act 1984:
New Directions (Edinburgh: Scottish Executive, 2001) (the Millan Report)),
contributions from psychiatrists identified this as a cause for concern (in the context of a
debate about moving to a capacity-based treatment model in the UK).
Closer consideration shows that for most treatments, this requirement for consent is
overridden. Thus, for ECT (s. 59) and for the ongoing administration of medication for
more than 3 months, treatment may be provided where the patient is “unable or unwilling
to give consent” provided it receives the approval of the patient’s own consultant
psychiatrist and the authorisation of a second consultant psychiatrist.” This gives rise to a
number of human rights issues which will be discussed further below. Two further points
to note are first, that for psycho-surgery (an extremely rare procedure in modern times),
both the consent of a capable patient and the approval of a Mental Health Tribunal are
required (s.57). This is notable because it is the only role played by the Tribunal system
in the treatment context. Secondly, for minor patients (defined in the MHA as “under the
age of 18 years”), court approval is required before psychosurgery may be performed or a
programme of ECT administered (s. 25) and ongoing medication (more than 3 months)
requires the authorisation of a second consultant psychiatrist (s.61).
The MHC Rules
The statutory provisions are supplemented by Codes of Practice and Rules drawn up by
the MHC. Of particular interest to the current discussion are the Rules Governing the
Use of Electro-Convulsive Therapy (R-S59(2)/01/2006 and the Rules Governing the Use
of Seclusion and Mechanical Means of Bodily Restraint (R-S69(2)/02/2006)) and the
Code of Practice on the Use of Physical Restraint in Approved Centres (COP-S33(3) (the
latter two are relevant because the administration of treatment to an unwilling patient
may well require the use of restraint).
The ECT Rules provide detailed medical guidance regarding methods of administration,
use of anaesthetic, materials and equipment, staffing, documentation. However, on the
issue of administration of ECT to unwilling patients, the Rules do nothing more than
repeat the provision in the MHA. The Rules on Mechanical Restraint (defined as “the
use of devices or bodily garments for the purpose of preventing or limiting the free
movement of a patient’s body”) require that mechanical restraint may only be used in the
best interests of the patient; where the patient poses an immediate threat of serious harm
to himself, herself of others and where all alternatives to manage unsafe behaviour have
been considered. The Code of Practice on Physical Restraint has as a key principle that
the use of physical restraint shall be used only as a last resort and shall not be prolonged
beyond the period of time necessary for its purpose.
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Assessing the MHA Treatment Framework from a Human Rights Perspective
As a preliminary, it is important to note that from a human rights perspective, the MHA
represents an important step forward when compared with the position prior to its
introduction. Among the developments to be welcomed are the establishment of the
MHC, the statement of underlying rights-based principles and the procedures for review
of admission. In the treatment context, the improvement wrought by the MHA is most
clearly evident in relation to the requirement for consent, the requirement that appropriate
information be provided and the fact that all patients subject to the MHA, including
patients who lack legal capacity, for the first time, have a right to have a second opinion
regarding treatment decisions which involve ECT or ongoing medication. With ongoing
medication, this review takes place at periodic intervals of ever three months. I will argue
below that, from a human rights perspective, this review procedure is insufficiently
independent (the patient’s own consultant psychiatrist chooses the psychiatrist who
provides the second opinion). Nonetheless, it must be acknowledged that the procedure
does at least provide some degree of overview of treatment decisions and accordingly
some protection for patients against risks of inappropriate treatment. Furthermore, under
the Mental Health Act 2001 (Approved Centres) Regulations 2006 SI 551 of 2006) each
patient has an entitlement to an “individual care plan”. This is defined in the Regulations
as “a documented set of goals developed, regularly reviewed and updated by the
resident’s multi-disciplinary team, so far a practicable in consultation with each resident”.
The requirement for patient consultation (again regardless of the patient’s capacity) is to
be welcomed and accords with the international human rights principles.
However, there are still human rights concerns regarding the treatment aspects of the
MHA, which I have discussed at some length elsewhere (Donnelly “Treatment for a
Mental Disorder: The Mental Health Act 2001, Consent and the Role of Rights” (2005)
40 Irish Jurist 220).
First, the provision permitting the administration of treatment to unwilling patients
(provided the procedural steps are met) gives rise to important concerns. For patients
who are legally capable, the administration of treatment against their will constitutes a
clear breach of their right of autonomy/self-determination (as protected under the Irish
Constitution (In re a Ward of Court [1996] 2 IR 79) and Article 8 of the ECHR (Pretty v
UK [2002] ECHR 2346/02). As acknowledged by the Supreme Court in In re a Ward of
Court, the right of autonomy is not absolute; it may be overridden on grounds of inter
alia protection of others. It may be that, in some situations, the circumstances
surrounding the administration of treatment to a legally capable patient against his or her
will may constitute a justifiable overriding of the right to autonomy. However, the MHA
permits a wholesale overriding of the right for patients who are to receive the most
serious of treatments – ECT and long term medication. This takes place with the most
minimal of overviews (the authorisation of a second consultant psychiatrist, chosen by
the patient’s own consultant psychiatrist). At a very minimum, patients should have a
wholly independent overview (by an independently appointed psychiatrist) before the
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provision of treatment which constitutes a breach of their right of autonomy be
administered.
Secondly, the provision of treatment to unwilling patients raises other rights based issues.
It is important to remember that patients need not be legally capable in order to be
unwilling to have a certain form of treatment. As Hale LJ (now Baroness Hale), noted in
R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419:
[T]he degradation of an incapacitated person shames us all even if that person is
unable to appreciate it, but in fact most people are able to appreciate that they are
being forced to do something against their will even if they are not able to make
the decision that it should or should not be done.
For legally incapable patients (as well as for patients who have legal capacity), the
administration of treatment against their will raises issues relating to the right to bodily
integrity, to privacy, to dignity and to be free from inhuman and degrading treatment.
For convenience, I will consider the last of these rights first.
The right to be free from inhuman and degrading treatment is a constitutional right (The
State (C) v Frawley [1976] IR 365) and an absolute right under Article 3 of the ECHR.
Irish constitutional jurisprudence on the right is very limited; however, the ECHR right
has been widely discussed including in the context of treatment for a mental disorder. As
a preliminary, it is important to note that Article 3 will only be engaged when treatment
reaches a severity threshold. It must involve “actual bodily injury or intense physical or
mental suffering” (Pretty v UK [2002] ECHR 2346/02). Here, the inappropriate use of
restraint is relevant; so too is the effect of administration of treatment which causes an
especially traumatic response in the patient.
In the leading ECHR case in the area, Herczegfalvy v Austria (1992) 15 EHRR 437, the
European Court of Human Rights (“ECtHR”) had no difficulty holding that the use of a
security bed and handcuffs in order to forcibly administer medication and feeding,
reached the threshold for Article 3. However, the ECtHR in Herczegfalvy also held that
the administration of treatment which was “medically” or “therapeutically” necessary did
not contravene Article 3. Therefore, so long as the treatment provided to the unwilling
patient is medically necessary, it is unlikely to contravene Article 3. Under Herczegfalvy,
however, the important factor before this will arise is that the medical necessity must be
“convincingly shown” to exist. The weak second opinion system contained in the MHA
raises questions regarding whether in fact the medical necessity can be “convincingly
shown” to exist. Certainly, English caselaw on Article 3 has required an independent
hearing in this regard (see R (Wilkinson) v Broadmoor Special Hospital Authority [2002]
1 WLR 419; R (on the application of N) v Doctor M and Others [2002] EWCA Civ
1789).
It is unlikely, one hopes, that the way in which treatment is provided in Irish psychiatric
facilities will often reach the minimum threshold for Article 3. However, other patient
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rights are infringed by the provision of treatment to unwilling patients. Once again, it is
irrelevant that the unwilling patient has legal capacity or not. In the words of the ECtHR
in Storck v Germany [2005] ECHR 406, “even a minor interference with the physical
integrity of an individual must be regarded as an interference with the right to respect for
private life under Article 8, if it is carried out against the individual’s will.” Similarly,
under Irish constitutional jurisprudence, the fact that a person lacks legal capacity does
not impact on the protection to be afforded to his or her right to bodily integrity, dignity
and privacy. While these rights are not absolute rights, they should be interfered with
only where a reasonable case that interference is necessary has been established. Again,
in my view, the inadequate second opinion review system under the MHA fails to
provide an appropriate mechanism to determine the necessity of the interference with the
patient’s rights and correspondingly provides insufficient protection for these rights.
The Future
In the Review of the Operation of the Mental Health Act 2001 (DoHC, 2007), the then
Minister (Mr Tim O’Malley TD) rejected submissions that only a Mental Health Tribunal
should be permitted to authorise ECT. He noted (p 27) that the legislation, which
constituted a significant improvement on the previous position, had only been in place
since 2006. However, he also indicated that any review of the Rules on ECT by the
MHC should ensure that international best practice was taken into account. In this
context, it should be noted that the international trend (including most recently the Mental
Health Act 2007 in England and Wales) has been to prohibit the administration of ECT
without the consent of a capable patient. In my view, the Minister’s caution was
unfortunate. The referral of ECT to a MHT would constitute an important development
in the protection of patient rights. However, even the more minimal step of requiring an
independent second opinion would have been some progress and this was not accepted as
an option.
More positively, in relation to both ECT and ongoing medication, the Minister accepted
in principle that where a person has capacity, any refusal to accept treatment should be
respected and this right protected by law. However, somewhat peculiarly, he considered
that it was necessary to consider the implications of this in the context of any new
capacity legislation.
The Minister also (in my view correctly) rejected submissions that the three monthly
review procedure for long term medication was burdensome and unnecessary in the case
of certain patients. He considered that this was a significant safeguard for patients and
should be retained.
To summarise the arguments made regarding the treatment provisions in the MHA from a
human rights perspective: while there are undoubtedly positive aspects of the MHA, the
protections afforded to the rights to autonomy, bodily integrity, and privacy are not
sufficient. In particular, in my view, the absence of an appropriate independent review
mechanism for treatment decisions gives rise to serious concerns especially in the context
of ECT.
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“Voluntary” Patients
As noted earlier, most patients received treatment for a mental disorder in a psychiatric
facility are “voluntary”. As the table below shows, some of these people may have spent
many years in the psychiatric facility.
Length of Stay and Age Groups (MHC Annual Report 2006, p 57)
Length of
Stay
Less than 3
months in
hospital
3 – 12
months
1 – 5 years
More than 5
years
Date of
admission
not specified
Total (row
%)
Less than 16
years of age
16-17 years
of age
18-64 years
of age
65 years of
age and
older
233 (20.6%)
Date of birth
not specified
Total
(column %)
1
1,282
(38.5%)
9 (100%)
9 (75%)
1,030
(47.3%)
0 (0.0%)
2 (16.7%)
251 (11.5%)
112 (9.9%)
1
366 (11.0%)
0 (0.0%)
0 (0.0%)
1 (8.3%)
0 (0.0%)
341 (15.6%)
557 (25.6%)
264 (23.4%)
520 (46.0%)
0
0
0 (0.0%)
0 (0.0%)
0 (0.0%)
1 (0.1%)
0
606 (18.2%)
1,077
(32.3%)
1 (0.0%)
9 (0.3%)
12 (0.4%)
2,179
(65.4%)
1,130
(33.9%)
2 (0.2%)
3,332
(100.0%)
To describe people who have spent more than 5 years in a psychiatric hospital as
“voluntary” is in many ways a misnomer. These people may well have nowhere else to
go. Similarly, patients who are not resistant to admission may well be admitted
“voluntarily” even though they do not have the legal capacity to consent to admission. In
HL v United Kingdom [2004] ECHR 45508/99 (frequently described as the Bournewood
case from its original title), the ECtHR held that, where admission to a psychiatric facility
constituted a “deprivation of liberty,” the absence of a formal admission mechanism for
incapable patients was a breach of the individual’s right to liberty as protected by Article
5 of the ECHR. This was the case even if the person was compliant and did not resist
admission. The recent Mental Health Act 2007 amends the Mental Capacity Act 2005 to
provide for admission procedures (which are less extensive than those for non-compliant
or resistant patients under the Mental Health Act 1983) where the admission of a person
who lacks capacity constitutes a “deprivation of liberty” under Article 5 of the ECtHR.
We urgently need to address this gap in the law in Ireland.
For present purposes, however, the important issue is not how “voluntary” patients are
admitted but what forms of protection there are available in relation to treatment
decisions for “voluntary” patients. The answer here is that the protective mechanisms are
minimal.
First, the common law rules apply. If the patient is capable, he or she may refuse
treatment; if he or she is incapable, treatment is determined on the basis of his or her best
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interests. Further, under the Mental Health Act 2001 (Approved Centres) Regulations
2006 SI 551 of 2006) each “resident” has an entitlement to an “individual care plan”,
regardless of his or her legal status.
The difficulty however is that there is no review mechanism regarding how the care plan
is drawn up, how treatment decisions are made and the appropriateness of these. To be
fair, the MHC has published a Quality Framework for Mental Health Services in Ireland
which includes a requirement that the Mental Health Service monitor its performance
regarding the delivery of appropriate services which take account of the need for patient
involvement, individual care plans and appropriate treatment. This may well result in “a
rising tide” delivering better individual protection but it still does not guarantee the
protection of individual rights.
It is clear that voluntary patients have the same rights to autonomy, to bodily integrity, to
dignity and to freedom from inhuman and degrading treatment as involuntary patients.
Furthermore, the principle of the right to the highest attainable standard of health is as
relevant to voluntary patients as to involuntary patients. The difficulty however is that
people in psychiatric facilities, especially people who have been patients for a long time
or who lack legal capacity, have no realistic prospect of enforcing their legal rights. It is
one thing to recognise the existence of a right but quite another for the right to have any
meaning in a practical sense.
Irish law relating to people who lack legal capacity has long need been in urgent need of
overhauling. The current wardship system (as contained in the Regulation of Lunacy
(Ireland) Act 1871 is clearly inappropriate and the LRC has recommended the
introduction of guardianship legislation to provide a system to protect people lacking
capacity. This recommendation should clearly be warmly endorsed.
However, it is important that as the legislative reform is developed, account is taken of
the specific issues raised by “voluntary” incapable patients in psychiatric facilities. If one
looks at the English/Welsh experience, one sees two frameworks operating alongside
each other. The mental health framework (contained in the Mental Health Act 1983 as
amended by the Mental Health Act 2007) sets out important procedural protections for
involuntary patients (in a treatment context, these are more extensive than those
contained in the MHA). The mental capacity framework (contained in the Mental
Capacity Act 2005 as amended by the Mental Health Act 2007) provides much less in the
way of protection for their legal rights. Therefore, two patients, one involuntary, one
voluntary, receiving the same treatment in the same facility under the same conditions
will have different degrees of protection. For significant treatments, including ECT and
ongoing medication, this, in my view, is inappropriate and fails to provide the necessary
protection for the rights of involuntary patients. In this regard, it is unfortunate that in the
Review of the MHA 2001, the then Minister rejected the submissions that the rules
governing the provision of ECT to involuntary patients should be extended to “voluntary”
patients.
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To summarise and conclude: the protections afforded to patient rights in the context of
treatment for mental disorders have undoubtedly increased. However, there is some
distance still to travel.
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