Download Submission to the Department of Health and Children on The Mental

Submission to the
Department of Health and Children
on
The Mental Health Bill 1999
January 2001
29th January 2001
Page 1 of 35
Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Table of Contents
Table of Contents ....................................................................................................................2
1. Executive Summary .........................................................................................................3
2. Introduction ......................................................................................................................4
3. Context for comments ......................................................................................................5
4. Issues of concern ..............................................................................................................6
4.i
Principles to underpin the Bill ..........................................................................7
4.ii
Reference to the rights of persons ....................................................................7
4.iii
Patient Advocacy ..............................................................................................9
4.iv
Lack of clarity in definitions of “mental disorder” ........................................10
4.iv a Criteria for involuntary admission .................................................................10
4.iv b Ambiguity re inclusion of voluntary patients .................................................11
4.iv c Ambiguity re: scope of Commission, Inspector and associated mechanisms 12
4.v
Limited membership of the Mental Health Commission ...............................14
4.vi
Limitations in functions of the Commission ..................................................16
4.vii
Limitations in functions of the Inspector .......................................................17
4.viii Flawed procedures for involuntary admission ...............................................18
4.viii a Human Rights .................................................................................................18
4.viii b “ authorised officer” .......................................................................................19
4.viii c Absence of community input in the processes ...............................................19
4.ix
Mental Health Tribunals .................................................................................20
4. x
Absence of Right to Treatment ......................................................................21
4.x.a Access to treatment ........................................................................................21
4.x.b Approved centre .............................................................................................21
4.x.c Informed consent ............................................................................................22
4.xi
Specific provisions for children .....................................................................24
4.xii
Review of legislation and operation of legislation .........................................24
5. The development of further substantive legislation .......................................................26
6. Review of Mental Health Services .................................................................................26
Appendix 1 ............................................................................................................................29
Examples of possible statements of principles .....................................................................29
Appendix 2 Advocacy..........................................................................................................31
Appendix 3 Definitions ........................................................................................................33
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
1.
Executive Summary
The NDA is established to promote the rights of people with disabilities. Within that mandate
we make this submission on the Mental Health Bill, 1999 (hereinafter referred to as “the Bill”).
In preparing this submission we have talked with and included the views of other interested
individuals and organisations. We offer to work with the Department of Health and Children,
the Mental Health Commission, and all other stakeholders to address the range of issues
identified in the submission.
We place our submission on the Bill within a wider context. We support stated government
objectives and policies for services for people with mental illness. We note, however, that
progress towards meeting these objectives since the early 1980s has not been uniform. We regret
that resources have not always been made available to implement agreed policies, and that while
some gains have been made, much remains to be done. We therefore conclude the submission
with recommendations about further work to resource and implement government objectives in
mental health.
In considering the Bill we are aware that many items identified in the preliminary Green and
White papers are not addressed in the context of this draft legislation. We therefore endorse the
development of further policies, services and legislation to address these outstanding issues. For
instance, people with mental illness who are also caught up in the criminal justice system, the
need for adult care orders, people with personality disorders and the possibility of community
care orders.
We recognise that this Bill is intended to bring Ireland into line with the requirements of the
European Convention on Human Rights. We welcome the intent and the move to replace the
1945 Act. We welcome the creation of the Mental Health Commission with its associated
powers of inspection, registration and regulation. We have, however, significant concerns about
the Bill even within its narrow remit. We suggest revisiting significant areas, for instance the
process of admission and reviewing admission orders.
We acknowledge that resolving these issues in full prior to passing the Bill may not support the
need of the government to introduce legislation promptly. To support the prompt passage of the
Bill we propose a phased review of both the operation of the legislation and the legislation itself.
We recommend that this review involve all stakeholders and begin immediately the legislation is
passed.
To ameliorate our immediate concerns we propose that a system of independent patient advocacy
be established. We suggest that this be funded by the Department of Justice, Equality and Law
Reform. Such a system of advocacy was identified as a priority by many stakeholders, as one
major initiative which could safeguard the rights of people with mental illness.
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
We also propose that the current Bill be amended by:







2.
introducing a section on Principles to inform interpretation of the legislation
including a section on the rights of people covered under the Bill
extending the protections of the Bill to persons admitted voluntarily
enabling an independent advocate to meet with users of mental health services
expanding both the membership of the Commission and the scope of its functions
amending the definition of “mental disorder”
further detailed proposals to improve the processes of application, admission and review of
involuntary admissions.
Introduction
The National Disability Authority Act, 1999 establishes the National Disability Authority
(NDA). The Mission Statement of the NDA reads:
“The National Disability Authority will, on behalf of the State, promote and help secure the
rights of people with disabilities”. The Authority will achieve this by:
 influencing public policy and legislation
 ensuring that services to people with disabilities are of the highest standards and quality.”
People with disabilities include people with “mental health or emotional impairment”. In
accordance with that Mission the NDA makes this submission on the Mental Health Bill, 1999
(hereinafter referred to as “the Bill”).
The NDA welcomes the Bill. We recognise that it is intended to bring Ireland into line with the
requirements of the European Convention on Human Rights by establishing improved safeguards
for the protection of the rights of those involuntarily admitted to hospital by reason of mental
illness. While welcoming the initiative to replace the 1945 Act, we consider that the
effectiveness of the Bill is severely compromised because it addresses only some of many interlinked issues.
These wider issues have been identified by successive governments in Department of Health
publications since the 1980s. These include, inter alia, “Planning for the Future”, the Green
Paper, and the White Paper “A New Mental Health Act” published in July 1995. Many issues
were also raised in subsequent submissions and debate on the Green and White Papers and on the
Bill, including debate in Select Committee. Many of our proposals and comments herein support
submissions and representations made by others during this process.
We see it as essential that an opportunity is provided, over a finite period, for resolving these key
issues while enabling government to meet the letter of international commitments. We therefore
propose that the Bill be amended to include a commitment to a time-limited process of review.
This is addressed in Section 4.xii herein.
We welcome the establishment of a Mental Health Commission (“the Commission”). We
strongly urge the Minister to establish this Commission as a matter of the highest priority to give
effect to all other provisions of the Bill. We acknowledge the crucial role of the Commission in
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
advising the Minister on regulations for proper standards in relation to Approved Centres, and in
protecting the interests of persons detained. We recognise that there are strong commonalities in
our mandates, particularly with regard to supporting and promoting appropriate standards. We
look forward to working with the Commission and with the Inspector of Mental Health Services
to promote high standards of services for all people with mental illness.
This submission:
 provides the context for our comments
 identifies issues of concern and proposes possible amendments to the Bill
 identifies further developments needed to implement agreed government policies and fully
address the rights of people with mental illness.
3.
Context for comments
We note that people with mental illness who are involuntarily admitted to psychiatric hospitals,
2,729 in 1999, are the only group of people in our society who can be detained against their will
other than those suspected or convicted of a crime. Such detention, moreover, is without benefit
of a court appearance. Severe sanctions are permitted under the proposed legislation. These
include the removal of a person’s freedom of movement, the entering of premises including their
home (by force if necessary), the use of restraint, transportation to hospital against their will,
(Section 11,12), detention against their will for a period of up to 28 days before review (Section
14), and the imposition of treatment that would otherwise involve actions amounting to assault
(Section 56, 68).
The detention and treatment of those involuntarily admitted often occurs in an environment
about which there are particular concerns. Successive reports of the Inspector of Mental
Hospitals chronicle sub standard physical conditions in many of the country’s psychiatric
hospitals, particularly in long stay facilities. The reports also identify concerns about the practice
and negative effects produced by polypharmacy, and the adequacy in some instances of medical
and rehabilitative care.
We place these concerns in the context of the service deficits identified in both anecdote and
various reports of the Inspector of Mental Hospitals including the 1999 publication “We have no
beds…” an enquiry into the availability and use of acute psychiatric beds in the Eastern Health
Board Region”. These deficits include severe shortages in areas critical to the involuntary
patients such as acute in-patient beds, community accommodation, day hospital places and
community-based services.
This chronic under-resourcing of mental health services has numerous implications. For one
thing, people are frequently admitted to over stretched hospital beds not because that is the best
place, but because there are no appropriate services in the community. Community services may
in some cases prevent, delay, or provide an alternative to admission.
In the absence of
appropriate community care people are sometimes so ill by the time their needs are identified
that involuntary admission becomes the only avenue.
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Serious deprivations are experienced by many involuntarily admitted patients through a
combination of the suspension of personal freedoms and an inadequate therapeutic environment.
This factor, combined with a world-wide shift to a more client-centred and rights-based approach
in health services makes it vital that the rights of those who are vulnerable to such detention are
safeguarded.
People who are detained constitute, however, only some 10% of all admissions. We recommend
that all protections in the Bill be extended to all persons receiving services, not just to those who
are involuntarily detained. This point is further addressed in 4.iv.b.
4
Issues of concern
Within this context we have specific concerns regarding the Bill. These include:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
absence of overarching statement of principles which would clarify the context in which
involuntary admission is conducted
lack of reference to the rights of persons including those who are detained involuntarily
absence of any provision for independent advocacy in the system proposed
lack of clarity in definitions
a)
criteria for involuntary admission
b)
ambiguity re voluntary patients
c)
scope of Commission and associated mechanisms
limited membership of the Mental Health Commission
limitations in functions of the Commission
limitations in functions of Inspector
flawed procedures for involuntary admission
a)
fundamental concern regarding human rights
b)
authorised officer
e)
absence of community input from admission and review process
Mental Health Tribunals - no presumption of the right to freedom
Minimal right to treatment
a)
access to treatment
b)
approved centre
c)
informed consent
provisions for children
provision for review of the operation and content of the Act
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Submission To The Department Of Health And Children
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4.i
Principles to underpin the Bill
Section 4 of the Bill enables the Minister to “modify a provision of this Act…if the modification
is in conformity with the purposes, principles and spirit of this Act”. The purpose is defined in
the entitlement. There are, however, no explicit principles to underpin and guide interpretation of
all provisions of the Bill.
Ireland is signatory to various UN and European statements of human rights and principles,
including those relating to the rights of people with mental illness. Key items of these are
included in the Appendices of the White Paper, for instance the European Convention on Human
Rights (1950), the Council of Europe Recommendation on the Legal Protection of Persons
Suffering from Mental Disorders, No. R (83)2, (CER rules) and the UN Principles for the
Protection of Persons with Mental Illness and the Improvement of Mental Health Care (UN
Principles). Unfortunately, while the Bill may address the letter of commitment, the statements
of principles and rights included in these documents are absent from the Bill.
We suggest that inclusion of principles would clarify that the purpose of the Bill is to safeguard
the rights and interests of patients. Such principles would:



clearly place the well-being of the patient at the centre of all legal and treatment decisions
promote the freedom, dignity and self-respect of the patient to the highest level compatible
with the process
state that in all circumstances the patient’s dignity should be respected and adequate
measures to protect his or her health taken (CER 10).
Two examples of such statements of principle are attached as Appendix 1. The first was
proposed in Amendment 7 in Select Committee, the second is contained in the New South Wales
Mental Health Act 1990 No 9 Updated 3 April 2000
Proposed Amendment to the Bill - Principles
The NDA proposes that the Bill be amended to include a section on Principles, similar to
that proposed in Select Committee.
4.ii
Reference to the rights of persons
The rights of people with disabilities are a major focus of A Strategy for Equality (1996), the
report of the Commission on the Status of People with Disabilities (A Strategy for Equality).
This Strategy is currently being implemented by Government.
(See, for instance,
recommendations 236, 237 and 240.)
The interpretative void generated by the absence of principles in the Bill is compounded by the
absence of a clear statement of the rights of the patient. There is considerable overlap between
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
the principles under which professionals should operate under the Bill and the rights which
should be specified for people detained under the Bill. For instance, both the CER Rules and the
UN Principles contain both general statements of principle (all persons with a mental illness …
shall be treated with humanity [UN 1.2]), and specific rights (all persons with a mental illness
…have the right to protection..[UN 1.3]).
A comprehensive and clear statement of the rights of patients is needed. These are basic human
rights and should extend to all patients both voluntary and detained. These rights include the
right to:











receive appropriate treatment and care (CER 5.1, UN Principle 1.1)
receive treatment and care based on an individually prescribed plan, discussed with the
patient, reviewed regularly, revised as necessary, and provided by qualified staff (UN
Principle 9.2)
have restrictions on personal freedom limited to those necessary because of state of health
and for the success of the treatment (CER 6.a)
protection from exploitation, abuse and degrading treatment (UN Principle 3)
be held in the least restrictive environment and with the least restrictive and intrusive
treatment appropriate (UN Principle 9.1)
treatment suited to cultural background (UN Principle 7.3)
bodily and psychological integrity and privacy
information (UN Principle 11)
consent to treatment (UN Principle 11)
access at all stages to an independent patient advocate
have prior assertions in relation to treatment taken into account. For instance, a patient may
wish to refuse certain treatments because in the past they have caused unwelcome and
deleterious side effects (e.g. tardive dyskinesia, memory loss).
The Charter of Rights for Hospital Patients (DoH 1992) goes some way to addressing some of
these issues. The Reports of the Inspector of Mental Hospitals clearly indicate, however, that in
many psychiatric hospitals this Charter is not implemented. Including reference to the Charter in
this legislation may go some way to redress this. We would, however, strongly recommend
updating and review of the Charter to reflect:




any principles included in the Act
current best practice
relevant recommendations of A Strategy for Equality
key statements of rights such as those quoted above.
It may be necessary to develop a separate Charter specifically for people with mental illness.
This should reflect the power to detain under this Bill, and should specifically protect the rights
of both voluntary and involuntary patients.
Proposed Amendment to the Bill – Rights
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
The NDA proposes that the Bill be amended by:
i.
including a specific section on the rights of persons, both voluntary and detained
ii.
expanding the powers of the Commission to include protection of persons’ rights
e.g. by:
 amending Section 32 (1) by amending line 18 by the addition of “to take all
reasonable steps to protect the interests “and rights” of persons detained……”
 amending section 32 (3) (e) line 39 by the addition of “a code or codes of
practice “and charter or statement of persons’ rights” for the guidance….
4.iii Patient Advocacy
We acknowledge and welcome the essential provision of a legal representative of the patient at
the Tribunal stage. We are however concerned to note that the Bill contains no reference at all to
the concept of patient advocacy. Many countries are developing a system of independent patient
advocacy. This is a key issue in A Strategy for Equality (see for instance Recommendations e.g.
32, 33, 46, 47, 48, 49, 382).
There are numerous matters where a patient or resident, whose thinking may be disordered, and
whose assertiveness may be impaired, may need the support of an advocate in raising concerns.
Such concerns may include, for instance, legal status, proposed treatment regimes, meeting
community responsibilities, respecting ethnic, cultural and spiritual beliefs and the role of these
in mental health. An independent advocate who could at all times articulate a position from the
perspective of the patient would help safeguard the patient’s rights.
It is crucial that this advocate is independent of the health care facility so they can, without
conflict of loyalties, put forward the view of the patient. An independent patient advocacy
system should therefore be provided by an independent organisation and funded by the State.
Funding should be sufficient to enable the adequate recruitment, training, resourcing and support
of adequate numbers of people to undertake this work. This may include people who “are
experiencing or have experienced mental illness”, where they meet the entry criteria and are
willing to undertake training.
Appendix 2 provides further information on advocacy.
Proposed Amendment to the Bill - Advocacy
The NDA proposes that the Bill be amended by:
i.
making provision in all “approved centres” and residential services for a system
of independent patient advocacy
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Submission To The Department Of Health And Children
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ii.
providing for this independent patient advocacy system to be funded by the State,
preferrably the Department of Justice, Equality and Law Reform
iii.
developing a requirement that all approved centres enable an independent patient
advocate to meet privately with patients, both voluntary and detained
iv.
in Section 15 (2) inserting a new clause:
“is entitled to meet with and be supported at all times including before the
tribunal by an independent patient advocate”.
4.iv. Lack of clarity in definitions of “mental disorder”
Section 3
We have concerns about the definition of “mental disorder.” These concerns relate both to the
rights of individual people and to the scope of the systems established under the Bill. The issues
lie in three key areas:
a)
b)
c)
the criteria for involuntary admission are too broad
ambiguity re inclusion or exclusion of voluntary patients
ambiguity re scope of Commission and Inspector, and of registration and regulations
4.iv.a
Criteria for involuntary admission
Section 3, 7
“Mental disorder” is the grounds for involuntary admission under Section 7. Section 3 defines
“mental disorder” under three diagnostic sub-headings of “mental illness”, “severe dementia”,
and “significant intellectual disability”. The criteria for involuntary admission under all of these
sub-headings do not protect adequately the best interests of all parties to the process. For
instance, for people with intellectual disability “significant impairment”, “abnormally
aggressive” and “seriously irresponsible” are not defined. Furthermore, the concept of harm and
criteria for assessing how it might be established that someone is likely to cause immediate and
serious harm to himself/herself are not defined.
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
For all diagnostic categories there are insufficient objective criteria to:


guide those making decisions about involuntary admission orders
render those decisions amenable to adequate review.
It is in the interests of both patients and health professionals that the criteria for making decisions
on involuntary admissions be as clear and objective as possible. The definition of mental illness
used in New South Wales Mental Health Act 1990 (attached as Appendix 3) could perhaps serve
as a model.
Proposed amendments to the Bill – criteria for involuntary admission
The NDA proposes that Section 3 of the Bill be amended by:
i.
the definition of mental disorder be amended to include for all three diagnostic
categories behavioural characteristics which are observable and therefore
accessible to objective review.
ii.
specific definition is provided for the concept of harm and criteria for assessing
how it might be established that someone is likely to cause immediate and serious
harm to himself/herself
4.iv.b
Ambiguity re inclusion of voluntary patients
Definitions, Sections 7, 13, 32
Voluntary patients constitute some 90% of all admissions. In practice the distinction between
people who are voluntarily in hospital and those who are involuntarily detained is sometimes less
clear than the Bill implies. There is considerable ambiguity as to whether or not the powers of
the Commission and the Inspector cover:
Either:
Or:
Or:
only persons who are detained under section 7, 13 et al
all persons who are inpatients, whether voluntary or involuntary
all persons who receive any psychiatric services.
Some provisions indicate a narrow focus, for instance, the function of the Commission (section
32(1)) is to “protect the interests of persons detained…”.
On the other hand, a wider focus is implied by references to “voluntary patients” in the
definitions section, and Section 68(4) re Bodily Restraint and Seclusion specifically redefines
“patient” to include “a voluntary patient”.
We suggest that it is inconsistent, and may in practice prove difficult, to exclude people who are
voluntary patients from the protections afforded by the Bill. We therefore suggest that the
ambiguity be resolved by amending the Bill to make it specific that the powers of the
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Submission To The Department Of Health And Children
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Commission to “protect the interests” include the interests both of those who are detained and of
those who are voluntary patients.
Proposed Amendment to the Bill – Voluntary Patients
The NDA proposes that the Bill be amended in the following way and at all points where
such amendment is required to make it clear that the protections of the Bill are extended
to both involuntary and voluntary patients:
i.
Section 32(1) lines 18 and 19 “to protect the interests “and rights” of “voluntary
patients and” of patients detained under this Act in approved centres”.
4.iv.c Ambiguity re: scope of Commission, Inspector and associated
mechanisms
Definitions and Section 3
The definitions in Section 3 also give rise to ambiguity around the scope of the Commission, the
Inspector, and the mechanisms relating to registration and regulation. The confusion may arise
from the fact that the Bill contains no terms for levels of mental illness, dementia and intellectual
disability which do not constitute “mental disorder".
There are three possible interpretations.. The role of the Commission and associated mechanisms
might apply:
Either:
Or:
Or:
only to facilities in which people are “detained” as implied by the current
definition of “mental health services”
to all in-patient facilities as implied by the definition and use of the term
“resident” in section 65
to all services provided to people who are mentally unwell as implied in Section
50(1)(a) and (2)(a) and (b) which enables the Inspector to “visit and inspect at
any time any approved centres or other premises where mental health services are
being provided”.
It appears that the clear intention, and the most feasible and logical policy, is that:


the powers of the Commission and Inspector are intended to apply to all services provided to
people who are mentally unwell and
the mechanisms of registration and regulation are intended to apply, as currently, to all inpatient services.
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This policy could be expressed by amending the Bill to include definitions for people who are
mentally unwell, or have dementia or intellectual disability and need treatment, but do not need
to be “detained”. These terms could then be used in specific applications (such as the definition
of mental health services) to clarify the scope of the Commission.
Proposed Amendments to the Bill - Scope of the Commission
The NDA proposes that the Bill be amended in the following ways and at all points
where such amendment is required to make it clear that:
 the powers of the Commission and Inspector are intended to apply to all
services provided to people who are mentally unwell and
 the mechanisms of registration and regulation are intended to apply to all inpatient services.
i.
Amend the definitions section and Section 3 by adding ““severe” mental illness”
when referring to a person who is mentally disordered
ii.
Develop new definitions for “mental illness, dementia, and intellectual
disability” which clarify that persons with these diagnoses require mental health
services but do not meet the criteria for being detained under the Bill (note – in
many cases this may properly exclude people with intellectual disability)
iii.
In all cases where the terms “mental disorder or mental illness” are currently
used, use “mental disorder” on its own if referring to persons being detained, and
use “mental illness, dementia, or intellectual disability” where referring to
people who do not require detaining
iv.
When referring to both categories of people use the terms “mental disorder
and/or mental illness, dementia, or intellectual disability”
v.
Amend mental health services (page 8) to “services which provide care and
treatment to persons suffering from a mental disorder and/or mental illness,
dementia or intellectual disability”
vi.
Amend the definition of “centre” to “means a hospital or in-patient facility for
the care and treatment of persons suffering from mental disorder and/or or
mental illness, dementia, or intellectual disability”
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4.v.
Limited membership of the Mental Health Commission
Section 34 and 35
We acknowledge the importance of the proposal that the Commission advise the Minister on
regulations for approved centres, and that it protect the interests of individuals. We recognise the
high degree of skill required in these roles. We therefore endorse the requirements of Section 34,
Membership of the Commission. We would further propose that these be expanded to ensure
that the Commission has all the skills needed to undertake these crucial roles. We realise that
these proposals may lead to a small increase in the number of people on the Commission.
A spread of clinical expertise across all diagnostic groups is needed. We therefore suggest that
the health professionals on the Commission should include expertise in adult psychiatry, child
psychiatry, psychiatry for older people and intellectual disability. We also suggest that one
medical practitioner should be a general practitioner, as the great majority of medical treatment
of mental illness occurs in the community. We further suggest that all members of the
Commission require training to enable them to undertake all functions of the Commission in the
application of the Bill.
Of the ten members of the Commission proposed at least six, and possibly seven, are health
professionals or service providers. While acknowledging that health professionals provide
essential treatment for people with mental illness, we suggest that this does not fully represent
the interests of people who are detained under the Bill. Nor of the wider community of people
who require mental health services and those who care for them. There is no member specifically
charged with ensuring that the rights of people who use mental health services are upheld. We
suggest that a member who is also a member of the Human Rights Commission would be ideally
placed to meet that need.
We welcome the inclusion on the Commission of “a person who is experiencing or has
experienced mental illness”. We understand and endorse that this phrase effectively means a
person who has been an in-patient of a mental hospital. We note there is provision only for “at
least one” such person (of two “representatives of voluntary bodies”) (section 34(2)(g). People
with this experience often find participation in such a body both vitally important and extremely
challenging, particularly if they are the sole spokesperson of that perspective. Two or more
representatives may be better able to articulate the necessary views and to support each other in
this daunting task. We further recommend that specific provision be made to ensure that at least
one member of the Commission is a carer or member of a family of a person who has a mental
illness.
Section 35.4 includes as grounds for removal from membership of the Commission “…if, in the
Minister’s opinion, the member has become incapable through ill-health of performing his or her
functions,…”. The membership conditions of other recently established government agencies do
not have this provision. It is sufficient that the Minister can “remove a person who… is
incapable of performing his or her functions”. The condition relating to health is unnecessary,
discriminatory and inconsistent with equality legislation. It should be removed.
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Submission To The Department Of Health And Children
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Proposed amendments to the Bill – membership of the Commission
The NDA proposes that Section 34 of the Bill be amended by:
i.
Section 34(2) in the phrase “special interest in or expertise in relation to the
provision of mental health services” replacing “or” with “and” “special interest”
and” expertise in..”
ii.
section 34(2)(a) be amended as follows “a barrister or solicitor, with special
interest in and expertise in the law relating to the provision of mental health
services, practising in the State ending….”
Section 34 (2) be amended to ensure:
iii.
one member is a member of the Human Rights Commission
iv.
health professionals on the Commission include:
 one medical practitioner to be a general practitioner with special interest in
and expertise in relation to the provision of mental health services
 expertise in adult psychiatry, child psychiatry, psychiatry for older people and
intellectual disability.
v.
members of the Commission all receive training in the specific roles of the
Commission
vi.
at least two members are “persons who are experiencing or have experienced
mental illness”
vii.
at least one member is a carer or member of the family of a person who is
experiencing or has experienced mental illness
vii.
section 35.4 be amended to remove ill health as grounds for removal of a member
of the Commission… “the member has become incapable of performing his or
her functions…”
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4.vi. Limitations in functions of the Commission
Section 32
We note that the principal functions of the Commission listed in Section 32 do not refer to
functions relating to systems which are specified later in the Bill. Notably:




appointment of an Inspector of Mental Health Services (section 49(2))
establish and maintain “the Register of Approved Centres” (section 63(1))
registering, refusing to register, or removing a centre from the register (section 63(3)(a),
63(4))
advise the Minister on regulations for the purpose of ensuring proper standards in relation to
Centres (section 65(1)).
We welcome the enhanced provision for quality improvement through registration and
regulations. (section 65). Experience demonstrates, however, that the effectiveness of any
system to mandate quality service provision is dependent on the following:



provision of adequate funding and resources to make it both attractive and feasible for
services to meet required standards and
a consultative process of standards development to ensure commitment of all stakeholders
and
the consistent use of legislative and regulatory powers to impose sanctions in cases of
services which persistently fail to meet standards
Absence of any of these key components renders mandatory and regulatory mechanisms
ineffectual.
To enhance the effectiveness of registration and regulations as a mechanism for improving the
quality of services we would like to make the following suggestions:

that in preparing to advise the Minister on such regulations the Department of Health and
Children and the Mental Health Commission should consult with a wide range of
stakeholders to develop a sound constituency for both the content and the implementation of
the regulations.

that the Bill specify time frames for both development and implementation of the regulations
to ensure that this does happen. It is suggested that these timeframes be consistent with the
five year time frame proposed for review of the Act.

that the requirements in the regulations include reference to assessment and treatment as well
as to care.
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Proposed Amendments to the Bill – functions of the Commission
The NDA proposes that the bill be amended by:
i.
Section 32(3) inserting new clauses e,f,g,h as follows:“the Commission shall:
(e) appoint an Inspector of Mental Health Services
(f) establish and maintain “the Register of Approved Centres
(g) register, refuse to register, or remove a centre from the register
(h) advise the Minister on regulations for the purpose of ensuring proper standards
in relation to Centres (section 65(1))
ii.
Insert Section 65 (1) (i) “Such regulations to be developed within two years of the
passing of the Bill. Implementation to start immediately upon the Minister’s
approval of the regulations and to be complete within five years of passing the Bill”
iii.
Amend section 65(2)(a) by adding in line 48 “as to the “assessment, treatment,
care,” maintenance and welfare of residents”
4.vii. Limitations in functions of the Inspector
Sections 50, 51
Sections 50 and 51 enable the Inspector to visit and inspect mental health services, and to
ascertain compliance with certain requirements. These include compliance with regulations
made under Section 65, rules made under section 68, and the provisions of Part 4. Section
(50)(1)(b) provides for the Inspector to report on specified elements, inter alia:


the quality of care and treatment given to persons (Section 50(b)(i.)
the implementation of codes of practice (Section 50(b) (iii))
It appears, however, that the Inspector does not report on compliance with regulations, rules, or
the provisions of Part 4. Standards and regulations provide objective criteria for measuring “the
quality of care and treatment”. Services will have to meet the Regulations for the purpose of
registration as an Approved Centre. The reason for excluding compliance with regulations from
the report of the Inspector is not clear. We therefore propose that compliance with the
regulations, rules, and Part 4 be included in the Report.
The Report of the Inspector of Mental Hospitals is long established as the primary promoter of
improvement in mental hospitals, and the Bill provides for continuation of this invaluable
practice. We suggest that the value of this report would be enhanced if, as well as being laid
before each house of the Oireachtas, it was also debated.
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Proposed amendment to the Bill – functions of the Inspector
The NDA proposes that the Bill be amended by:
i.
Amending Section 50 (1) (b)(iii) line 16 by adding to any codes of practice
prepared under Section 32 (3) “(e) any regulations made under section 65, any
rules made under section 68 and the provisions of Part 4”
ii
amending Section 41(1) line 21 by inserting “the Minister shall cause copies
thereof to be laid before “and debated by” each house of the Oireachtas”.
4.viii.
Flawed procedures for involuntary admission
Part 2
We have major concerns about the procedures for involuntary admission and review of this.
These are in the areas of:
a)
human rights
b)
authorised officer
c)
period of admission
d)
absence of community input
4.viii.a Human Rights
The UN Human Rights Committee, when questioning the Attorney General on the Bill in July
2000, said that legislation for involuntary detention which did not provide for a review within a
couple of days was in contravention of the International Covenant on Civil and Political Rights.
Ireland has been a signatory to this since 1989.
We have several key questions about the proposed system of admission, review and tribunals.
These relate to:
 the ability of the proposed process to safeguard the rights of people who meet the criteria for
involuntary detention (we suggest it cannot)
 the feasibility of all steps of the proposed process
 the willingness and availability of suitably qualified professionals
 whether true benefits will be gained from this commitment of limited resources
 possibility of provision for an “emergency” admission of 24 – 72 hours, possibly for
assessment/observation prior to initiating involuntary admission
 the possibility of involuntary detention by means of a renewal of the admission order for
periods in excess of 28 days before a review can be arranged.
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Given the importance of these concerns we consider that substantial further work is required to
develop systems which meet all of these concerns. We strongly recommend that further research
be done to identify best practice in other jurisdictions, to develop effective, feasible and safe
processes for involuntary admission and for reviewing admission. The resulting process must
ensure that the constitutional right of liberty for all is met. The Bill should then be redrafted to
reflect this work.
b) We recognize that this is a large task, and completion prior to passing the Bill may not be
possible. The following proposals are an interim measure to achieve minor improvements in
what we see as a fundamentally flawed system.
4.viii.b.
“ authorised officer”
Section 8
The definition of the “ authorised officer” is inadequate. The White Paper argued that the
availability of qualified health professionals who could receive further specific training for this
role made it possible to extend the range of people who could make application for an
involuntary admission. The attraction of this suggestion is that a suitably qualified person could
make an application when it is not possible or appropriate for others to do so. Section 8 (8) refers
only to rank or grade and makes no reference to suitable professional qualifications of authorised
officers. This allows for people with no suitable qualifications or experience to make
application. This is not acceptable.
It is not clear in what circumstances an authorised officer may make an application for
involuntary admission. The White Paper suggested that the officer could make an application
either at the request of relatives or where relatives are unavailable, unwilling or disqualified from
making a request. Many families who have to make an application for admission of a relative
suffer considerable stress and disruption of relationships which are in fact vital to the patient.
The Bill should specifically enable the authorised officer to act in this situation. Safeguards to
ensure this provision is not abused are also needed.
4.viii.c
Absence of community input in the processes
Sections 9, 13, 16, 17.
The Bill makes no provision for the inclusion of perspectives of health professionals other than
doctors. Other essential perspectives would include, for instance, psychologists, psychiatric
nurses or social workers, including knowledge of how the person functions in their community,
their environment and supports.
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Proposed amendments to the Bill - involuntary admission
We believe fundamental reconsideration and redevelopment of these procedures are
needed. Pending this we endorse reducing the period of admission order from 28 to 7
days. The following are minimum proposals.
The NDA proposes that the Bill be amended in the following ways:
i.
Section 14 to reduce the period of the initial admission order to 7 days
ii.
Section 8 (8) to provide for suitable professional qualifications as a minimum
criterion for authorised officers
iii.
Section 8 to include a subsection outlining the circumstances in which an
authorized officer would act, including protection of family in certain
circumstances
iv.
the process to make provision for the inclusion of a psychiatric social worker or
other qualified person to provide information on the relevant social and
environmental circumstances of the patient.
4.ix
Mental Health Tribunals
Section 47, 48
It is clear from the legislation that the purpose of a tribunal is to review both the clinical decision
to make an involuntary admission order and the procedures followed for implementing the
involuntary admission process (Section 16,17). It appears that the tribunals are being established
in an adversarial and legalistic fashion. The mechanisms, language and procedures are those
found in a courtroom. The subject of the proceedings is most likely to be a sick person. We
propose that a procedure be devised to fulfil this crucial legal function in a manner and setting
designed to minimize anxiety and distress for the person whose situation is being reviewed.
An involuntary admission order removes the fundamental right to freedom of an individual. It is
therefore important that the Tribunal review of the case should operate from the basic principle
of restoring the right to freedom of the individual. In effect, this means that the onus of proof
rests with the signatory of the admission order, that the person is mentally disordered to the
extent that the admission order is justified. The legislation needs to be amended to reflect this.
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Proposed amendment to the Bill – Mental Health Tribunals
The NDA proposes that the Bill be amended as follows:
i.
Amend Section 47(1) to include a statement that primary consideration be given
to restoring the right to freedom of the detained individual, and that the onus of
proof rests with the signatory of the admission order.
4. x
Absence of Right to Treatment
Part 4
There are a number of concerns in relation to the treatment of patients who are the subject of an
involuntary admission. These are:
a) lack of specified right to treatment during admission to approved centre
b) lack of specified right to appropriate accommodation and after-care following period of
detention
c) need to ensure that approved centre has capacity to provide necessary treatment
d) concerns around informed consent.
4.x.a Access to treatment
A central concern of enforced detention is the access persons will have to treatment. We note
that of the 73 Heads of Bill, only six refer to treatment. The Bill does not contain any
undertaking that the person will receive appropriate treatment while admitted. We see access to
appropriate treatment, based on thorough clinical assessment, as a right. We further suggest that
this right extends to all persons receiving the service, not just those detained involuntarily.
Section 65, Regulations in Relation to Approved Centres, does not include the concepts of
“assessment”, which is an essential pre-requisite to treatment, nor of “review” which is essential
to ensure treatment plans reflect current needs. It provides for “care” which is a less specific
term than treatment. We suggest that references should be to “assessment, treatment, care and
review”.
4.x.b
Approved centre
Part 5
Safeguards are required to ensure that the centre to which the patient is admitted, being a centre
entered on the Register (Section 65), is capable of delivering the treatment required. To date
various reports from the Inspector of Mental Hospitals have indicated a wide divergence in
standards between hospitals / centres inspected.
We would note that, in addition to the definitional issues raised in 3.v, the inclusion of people
with “significant intellectual disability” in this Bill raises treatment issues:
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999


the suitability of an “approved centre” as a place where people with intellectual disability are
admitted or detained
the need for any approved centre where people with intellectual disability are admitted to
provide accommodation, suitably trained and experienced staff and treatment which meets
the assessed needs of this specific group of people
4.x.c
Informed consent
Part 4
Informed consent, while not a part of the procedure for compulsory admission of a patient,
should be required for all treatments. An exception may be where there is a danger of the patient
harming self or others, but objective methods of assessing this risk of harm need to be put in
place (see also 4.iv.a and associated Proposal). At present, once a patient has been admitted
under the terms of the Bill, medication treatment may be administered for three months (Section
59) without the person’s consent (Section 56). It is essential that the Bill provide for all persons
receiving psychiatric treatment to receive information and to consent to, or to withhold consent
from, treatment proposed.
The presumption should be that the patient can give informed consent to treatment. The onus is
on the person declaring the patient to be incapable to prove this to be so. There is a difference
between a patient who is unable and a patient who is unwilling to give consent to treatment
(Section 58,b). The patient who is unwilling to give consent may, quite reasonably, be doing so
on the basis of past negative experiences of the said treatment (e.g. treatment – related loss of
memory) and the Bill should allow such unwillingness to be taken into account. Actioning this
within the Bill reinforces the case for an independent advocacy service.
Information must be given to the patient in relation to all treatments in line with Section 55(b) of
the Bill, even if consent is not obtained through the patient being assessed as unable to give that
consent.
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Proposed amendments to the Bill – treatment
The NDA proposes that the Bill be amended in the following ways;
i.
Section 65(2)(g) lines 13 - 16 “prescribe requirements as to the drawing up,
carrying out “and reviewing” by centers, so far as practicable in consultation
with each patient “or resident” of an individual care plan for that patient “or
resident” including “assessment, treatment,” and the setting of appropriate
goals”
ii.
the Bill be amended to provide for the making of an admission order for
involuntary admission to a particular mental health centre to be conditional on the
capacity of that centre to provide appropriate and adequate treatment to meet the
needs of the individual detained.
iii.
Section 63(2)a be amended to require that the registration details of the approved
centre include the list of conditions it is competent to treat and the range of
treatments available, including specific reference to their ability to meet the needs
of people with intellectual disability.
iv.
Part 4 be amended to ensure that all persons admitted to an approved centre are
informed about their condition and the proposed treatment, and their consent is
sought prior to treatment being given. The presumption to be that the person is
capable of consent, and a patient advocate to be included in the process
v.
Section 32 (3) to be amended to include developing a format and content for
information to be given to patient in relation to treatment, stating the objective
criteria on which is judged the ability of a person to give informed consent, and
clear processes for the person to give or withhold consent, with the support as
necessary of a patient advocate.
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
4.xi
Specific provisions for children
Sections 24, 60
In line with both the Child Care Act 1991 and “Children First: National Guidelines for the
Protection and Welfare of Children”, the current Bill should make a clear statement in relation to
children indicating that in all actions and decisions their welfare is paramount.
In relation to the involuntary admission of children (sections 24 & 60), the medical practitioner
who examines the child and makes decisions is stated to be a “Consultant Psychiatrist”. Our
concern here is for the appropriate placement of the child who is being detained. It is not clear,
neither is it necessarily the case, that a Consultant Psychiatrist will have access to (or be required
to place) a child in an appropriate unit. The possibility then exists for the child to be detained in
an adult unit or ward. We regard this as wholly unacceptable.
Throughout this submission we have consistently expressed the need for an independent
advocacy facility for patients covered under this Bill. We view independent advocacy and
representation for the child in what will always be a confusing, intimidating and often
incomprehensible process as essential.
Further consideration needs to be given to regularising the ages at which involuntary admission
may take place and at which consent may be given for treatment. A person over the age of 16
years may find themselves empowered to give their consent to treatments when being dealt with
under the Non-Fatal Offences Against the Person Act 1997, but were they to be subsequently
involuntarily detained under the Bill – would find that right removed. This is a situation which
would reinforce the intimidating and incomprehensible nature of the process.
Services for children and adolescents are in many places absent or inadequate. Significant
additional resources and services are essential to meet the needs of this group.
Proposed amendments to the Bill - children
The NDA proposes that the Bill be amended by:
i.
Sections 24 and 60 and all other references to children “Consultant Psychiatrist”
be amended to read “Consultant Child Psychiatrist” in every instance
ii.
Sections 24 and 60 be amended to read that a “child psychiatrist”
be required to admit such a child to an appropriate “children’s unit”.
iii.
making available a guardian ad litem to children who are in process of being
involuntarily detained. Such a facility is already provided to children under the
Child Care Act 1991 (Part V, section 26).
4.xii Review of legislation and operation of legislation
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
We acknowledge that the issues raised in this, and other, submissions on the Bill are substantive,
and that not all may be fully resolved prior to passage of the Bill. We also recognise that the Bill
addresses only some of the relevant inter-linked issues. To provide a framework within which
all these issues may be thoroughly addressed and resolved we suggest that the Bill provide for
phased review within a defined period.
The review should address:



the operational implementation of the Act
issues outstanding from the Green and White Papers
amendment of this legislation to resolve the issues identified.
We suggest that this review should occur over a five year period from the passing of the Act,
with a progress report to the Minister at two years. It should be conducted in conjunction with
the necessary parallel and inter-connected work to implement government policies.
To support these proposals we suggest that:


immediately upon the passing of the Bill a group involving all stakeholders, including users
of services, be set up to monitor, research and review the operation of all aspects of the Bill
work involving all stakeholders begin immediately to implement government policies as
identified in this Submission.
Proposed amendments to the Bill– review of Act
The NDA proposes that the Bill be amended by:
Including a further section to provide for review of the Act within five years of
enactment. The review to address:
 outstanding issues from the development of the Bill and
 the operational implementation of the Act.
 amendment of this legislation to resolve the issues identified
 a progress report to be made to the Minister within two years of passing the Bill.
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
5
The development of further substantive legislation
We welcome the recognition by the Minister of the requirement for additional substantive
legislation to deal with outstanding issues not addressed in the Bill. We would recommend that
full consideration be given to developing policies and the necessary associated services,
protocols and legislation, based on clearly articulated principles, including the following areas:






6
adult treatment orders
people with mental illness in the criminal justice system
transfer between approved centres and the criminal justice system
compulsory community treatment as an alternative to detaining people in an approved center
addressing the needs of people with personality disorder (who are excluded under the Bill)
addressing the needs of children and adolescents
Review of Mental Health Services
The NDA fully endorses the goals of successive governments since the early 1980s which are:


to promote mental health
to restore the mentally ill to as independent a life as possible
We equally support the objectives:




to provide a comprehensive and community oriented psychiatric service
to integrate psychiatric services with general hospital, general practitioner, community care
and voluntary services
to improve the standard of care in psychiatric hospitals pending the transfer f services to
alternative locations in general hospitals and in the community
to improve services to meet the special needs of particular target groups, such as the elderly
mentally ill, persons with a mental handicap in psychiatric hospitals and children and
adolescents with psychiatric problems
We see provision of such services as a matter of right.
Progress in allocating funds and developing services to meet these objectives is, however, slow.
We note with the utmost concern widespread anecdote, reinforced by references in successive
reports by the Inspector of Mental Hospitals, to the continuing inadequacy of some existing
services and total absence of others.
These concerns are succinctly expressed in the 1999 report by the Health Research Board, “We
Have no Beds…” An Enquiry into the availability and use of acute psychiatric beds in the
Eastern Health Board Region”. Deficits identified in this report include:
29th January 2001
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999





unavailability of acute in-patient beds, in part because of “inappropriate occupancy”
shortage of rehabilitation places for “inappropriate” patients
in general lack of systematized spectrum of provision from hospital ward to high support,
medium and low support community accommodation
shortage of day hospital places
general unavailability of community-based, emergency outreach, 24 hour seven day a week
assessment, treatment and crisis intervention services.
These reports underscore the fact that Mental Health is the poor relation of health and disability
services. This is further reflected in the fact that people with mental illness are at this time the
only group of people with disabilities for whom no collective assessment of need nor
development of a database has been undertaken.
Implementing stated Government objectives requires a substantial and long overdue investment
of funds and resources into mental health. Only when resources are committed to guarantee that
services are in place and operating effectively will Ireland fully comply with international
requirements for people with mental illness.
To this end we propose work begin immediately on the following tasks:







conduct a national needs assessment and develop a database of people with mental illness
to the extent that this is needed to support service planning
assess the extent to which stated government objectives have been met
where necessary update objectives to reflect current best practice
identify, by sector, what additional services are needed and the funds and resources
needed to develop them
gain the needed resources and funds
develop and implements plans to provide the services needed
monitor and report back to government on progress on these tasks.
Some elements which should be included in this work:





developing systems for systematic comprehensive assessment of need, planning and coordinating services for individual clients (see Strategy for Equality recommendations e.g. 31,
41, 43,44,45)
transparent and accountable systems for allocating resources to ensure that government funds
are spent to meet identified need and in support of government policies and priorities
consistent systems and processes for monitoring to ensure that funds are spent to meet
government priorities, and that services are provided to meet agreed standards
adequate complaints and appeals procedures (see Strategy for Equality recommendations e.g.
50, 156, 162)
identify progress towards implementing existing standards such as the Charter of Patients’
Rights and the Guidelines on Good Practice and Quality Assurance in Mental Hospitals
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999

using, or where necessary developing, levers for the implementation of policy and standards,
such as legislation, regulations, inspection/monitoring structures and service agreement and
contractual arrangements between funders and providers of services.
We look forward to working with the Department of Health and Children, the Mental Health
Commission and all other stakeholders to achieve the right of people with mental illness to
receive quality health services.
29th January 2001
Page 28 of 35
Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Appendix 1
Examples of possible statements of principles
Two examples of such statements of principle follow. The first was proposed in Amendment 7 in
Select Committee:
“In page 9, before section 3, to insert the following new section:
"(1) In every decision, whether under this Act or otherwise, concerning a person to whom
this Act applies or may be applied as a patient, the best interests of that person shall
be the first and paramount consideration.
(2) A person who has been or is liable to be affected by a decision under this Act shall
have the right, so far as is reasonably practicable, to prior and informed
consultation and to have his or her views given due regard.
(3) Subject to the extent (a) necessary for the provision of care and treatment, and
(b) authorised by this Act,
a patient who has been involuntarily admitted and detained, or to whom treatment not
requiring consent has been administered, retains his or her right to dignity, bodily
integrity, privacy and autonomy; and every decision concerning the provision of such
care and treatment shall have regard to the need to respect those rights.".
The second is contained in the New South Wales Mental Health Act 1990 No 9 Updated 3 April
2000
(2)
It is the intention of Parliament that the provisions of this Act are to be interpreted and
that every function, discretion and jurisdiction conferred or imposed by this Act is, as far
as practicable, to be performed or exercised so that:
(a)
persons who are mentally ill or who are mentally disordered receive the best
possible care and treatment in the least restrictive environment enabling the care
and treatment to be effectively given, and
(b)
in providing for the care and treatment of persons who are mentally ill or who are
mentally disordered, any restriction on the liberty of patients and other persons
who are mentally ill or mentally disordered and any interference with their rights,
dignity and self-respect are kept to the minimum necessary in the circumstances.
Chapter 2
Objects etc
Care, treatment and control of mentally ill and mentally disordered persons
(1)
The objects of this Act in relation to the care, treatment and control of persons
(a)
to provide for the care, treatment and control of those persons, and
(b)
to facilitate the care, treatment and control of those persons through community
care facilities and hospital facilities, and
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
(c)
(d)
(2)
to facilitate the provision of hospital care for those persons on an informal and
voluntary basis where appropriate and, in a limited number of situations, on an
involuntary basis, and
while protecting the civil rights of those persons, to give an opportunity for those
persons to have access to appropriate care.
It is the intention of Parliament that the provisions of this Act are to be interpreted and
that every function, discretion and jurisdiction conferred or imposed by this Act is, as far
as practicable, to be performed or exercised so that:
(a)
persons who are mentally ill or who are mentally disordered receive the best
possible care and treatment in the least restrictive environment enabling the care
and treatment to be effectively given, and
(b)
in providing for the care and treatment of persons who are mentally ill or who are
mentally disordered, any restriction on the liberty of patients and other persons
who are mentally ill or mentally disordered and any interference with their rights,
dignity and self-respect are kept to the minimum necessary in the circumstances.
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Submission To The Department Of Health And Children
on the Mental Health Bill 1999
Appendix 2 Advocacy
Chambers English Dictionary (1990) defines advocate as “an intercessor or defender; one who
pleads the cause of another”. Advocacy is a process in which this activity is taking place. The
need for such an activity in the area of mental health services has long been recognised in many
jurisdictions because of the issues involved. These include:
 the vulnerability of a mentally ill person because of impairment or loss of capacity for
personal decision making when seriously ill
 involuntary detention and treatment
 effects of long term medication maintenance
 invasive treatments
 consequences of long term in-patient care
 integration of mentally ill people in the community.
As it has developed in practice in the context of mental health services, advocacy has taken a
variety of different forms and expressions. These include:
 legal advocacy – representation by legally qualified advocates, usually solicitors.
 independent patient advocacy i.e. people are professionally trained and employed to provide
an independent professional advocacy service for users of mental health services
 citizen advocacy - a long-term one to one partnership between service user and advocate
(developed in response to the needs of people with intellectual disabilities and sometimes
adapted to the needs of people with mental illness) .
 peer advocacy offers support from people who have themselves been – or from time to time
are themselves – users of the service
 self-advocacy is people speaking out for themselves and is the goal of many citizen and all
peer advocacy projects.
Each of these forms of advocacy has a role to play in promoting the rights and well being of
people with mental illness. In the interests of equity of all stakeholders in mental health services
it is particularly important that legal advocacy and independent patient advocacy be an integral
part of service structures. The Mental Health Bill 1999 achieves this in relation to legal
advocacy but what is clearly missing is a commitment to a structure for independent patient
advocacy.
Independent Patient Advocacy
According to Dave Lowson (MIND, the mental health charity UK) there are 5 basic stages or
elements to the advocacy process. These are:
 Regaining a right and capacity to exercise choice ( sometimes lost through illness and
associated experiences)
 Exploring options
 Making a choice
 Finding a voice
 Getting a response
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Submission To The Department Of Health And Children
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The primary task of the independent patient advocate is to facilitate the patient in moving
through that process in relation to any one or number of things that may be of concern to
him/her. These can range from matters concerning treatment, therapies, medications, detention,
choice of doctor, to social welfare benefits, family relationships and domestic concerns.
The second task of the independent patient advocate is to help redress the power disparity
between the patient and the other stakeholders in the mental health service. In particular this
exists in matters relating to knowledge and information about the service system. Such matters
include:
 introducing the patient into the service
 ensuring that patients receive quality information on all aspects of the service
 providing information on the range of treatments available
 providing information on alternative treatments
 providing information on the range of clinicians
 ensuring patients understands their rights in relation to all aspects of the service
Nurses will address many of the above matters in the course of their duties. However the
independent advocate has a particular responsibility to safeguard the interests and rights of the
patient which takes his/her role beyond that which the nursing staff can fulfil. Along with
providing information and making it accessible the advocate must facilitate the patient in
maximising the exercise of choice.
To avoid any conflict of interest the patient advocate must be independent of the mental health
service in the same way as the legal advocate is and for the same reasons. This means that the
independent patient advocacy service should be established as an entity independent of any
government department. Because the core business of such a service is the safeguarding of the
fundamental rights and entitlements of patients the funding for it should come from the
Department of Justice, Equality and Law Reform.
Precedents
In many jurisdictions, such as Britain, the Netherlands and the USA there are well-developed
structures for advocacy. In New Zealand there are formal structures for advocacy established
under the Health and Disability Commissioner Act. In the Netherlands every psychiatric service
has an independent patients’ advocate paid for directly by central government. In the US federal
funding of state services is dependent on the operation of an acceptable Protection and Advocacy
Agency.
There are also a range of funding mechanisms, such as central government (e.g. Netherlands,
New Zealand) state or local authorities (e.g. USA) health authorities and charitable trusts (e.g.
Britain). A key to effective advocacy is that funding, and thence the role of the advocate, must be
independent of the provider for whose clients advocacy is being provided.
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Appendix 3 Definitions
New South Wales - Mental Health Act 1990 No 9 Updated 3 April 2000
Chapter 3 Mentally ill and mentally disordered persons
8
Criteria for involuntary admission etc as mentally ill person or mentally disordered
person
A person is a mentally ill person or a mentally disordered person for the purpose of:
(a)
the involuntary admission of the person to a hospital or the
detention of the person in a hospital under this Act, or
(b)
determining whether the person should be subject to a community
treatment order or be detained or continue to be detained involuntarily in a
hospital or other place,
if, and only if, the person satisfies the relevant criteria set out in this Chapter.
9
Mentally ill persons
(1)
A person is a mentally ill person if the person is suffering from mental illness and, owing
to that illness, there are reasonable grounds for believing that care, treatment or control of
the person is necessary:
(a)
for the person's own protection from serious harm, or
(b)
for the protection of others from serious harm.
(2)
In considering whether a person is a mentally ill person, the continuing condition of the
person, including any likely deterioration in the person's condition and the likely effects
of any such deterioration, are to be taken into account.
10
Mentally disordered persons
A person (whether or not the person is suffering from mental illness) is a mentally disordered
person if the person's behaviour for the time being is so irrational as to justify a conclusion on
reasonable grounds that temporary
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care, treatment or control of the person is necessary:
(a)
for the person's own protection from serious physical harm, or
(b)
for the protection of others from serious physical harm.
11
Certain words or conduct may not indicate mental illness or disorder
(1)
A person is not a mentally ill person or a mentally disordered person merely because of
any one or more of the following:
(a)
that the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular political opinion or belief,
(b)
that the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular religious opinion or belief,
(c)
that the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular philosophy,
(d)
that the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular sexual preference or sexual
orientation,
(e)
that the person engages in or refuses or fails to engage in, or has engaged
in or refused or failed to engage in, a particular political activity,
(f)
that the person engages in or refuses or fails to engage in, or has engaged
in or refused or failed to engage in, a particular religious activity,
(g)
that the person engages in or has engaged in sexual promiscuity,
(h)
that the person engages in or has engaged in immoral conduct,
(i)
that the person engages in or has engaged in illegal conduct,
(j)
that the person has developmental disability of mind,
(k)
that the person takes or has taken alcohol or any other drug,
(l)
that the person engages in or has engaged in anti-social behaviour.
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(2)
Nothing in this Chapter prevents, in relation to a person who takes or has taken alcohol or
any other drug, the serious or permanent physiological, biochemical or psychological effects of
drug taking from being regarded as an indication that a person is suffering from mental illness or
other condition of disability of mind.
From Schedule 1
mental illness
means a condition which seriously impairs, either temporarily or permanently,
the mental functioning of a person and is characterised by the presence in the
person of any one or more of the following symptoms:
(a)
delusions,
(b)
hallucinations,
(c)
serious disorder of thought form,
(d)
a severe disturbance of mood,
(e)
sustained or repeated irrational behaviour indicating the
presence of any one or more of the symptoms referred to in
paragraphs (a) – (d).
mentally disordered person, for the purposes of this Act set out in section 8, means a
person who satisfies the relevant criteria set out in Chapter 3.
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