Presentation by: Darius Whelan Faculty of Law, University College Cork

Mental Health Lawyers Association Seminar, Dublin, 9 October 2009

Summary of Points made in this Talk:

There are two types of voluntary status under the Mental Health Act 2001, which I will refer to as “Type 1” and “Type 2” for the purposes of this talk:

• Type 1 voluntary status: A person is admitted on a voluntary basis from day 1 of their admission

• Type 2 voluntary status: A person is admitted on an involuntary basis initially, then their status is later changed to voluntary status,

Voluntary admissions are approximately 90% of admissions. Note also that O’Donoghue and Moran have reported that 69% per cent of consultant psychiatrists acknowledge that involuntarily admitted patients are being changed to voluntary status (by revocation of their admission orders) early to avoid a tribunal, and 21% believe it occurs in over 40% of cases (Brian O’Donoghue and Paul Moran, ‘Consultant psychiatrists’ experiences and attitudes following the introduction of the Mental Health Act 2001: a National Survey’ (2009) 26 Irish Journal of Psychological Medicine 23).

Principle 15 of the UN Mental Illness Principles: Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

Section 3 of the Mental Treatment Act 1945: A voluntary patient was a person who submitted himself voluntarily for treatment.

Section 195 of the 1945 Act: Where the voluntary patient was mentally incapable of expressing himself or herself self willing or not to remain, he/she had to be discharged within 28 days unless a reception order was obtained.

J.H. v Russell [2007] I.E.H.C. 7; [2007] 4 I.R. 242: Clarke J.: Apparently voluntary detention, but not voluntary in substance, was held to be unlawful.

Section 2 of the Mental Health Act 2001: A “voluntary patient” refers to a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order. In other words, a voluntary patient is anyone who is not an involuntary patient.

Arguably the 2001 Act provides less protection for voluntary patients than the 1945 Act did.

Implicit in the definition may be a sense that the State is not concerned with whether the person “volunteered” or consented to their admission. It may be that the State was conscious in drafting the Act that there were a number of people in psychiatric institutions, at least at the time of drafting the legislation, who never submitted voluntarily for their treatment but had become institutionalised. Rather than retaining the previous involuntary / voluntary distinction, the State created a new categorisation of involuntary / everybody else. This allows less scope for querying the basis on which a so-called “voluntary” patient came to be in the centre and continues to be there.

Page 1 of 5Perhaps the label “informal” should have been chosen, as in England and Wales. If the 2001 Act is revised in future, the word “voluntary” should be replaced.

As a matter of statutory interpretation, should judges have regard to the use of the word “voluntary” to define patients who are not, in fact, voluntary? It is quite common for legislation to define words in a manner which is different from the ordinary meaning of the words. Murnaghan J. said in Mason v Leavy [1952] I.R. 40 at 47: “Where a statute such as the Rent Restrictions Act, 1946, defines its own terms and makes what has been called its own dictionary, a Court should not depart from the definitions given by the statute and the meanings assigned to the words used in the statute.”

However, the canons of statutory interpretation have evolved since 1952, and been modified by the Interpretation Act 2005. In addition, we are not dealing here with rent restrictions legislation; this is an Act concerning constitutional and human rights to liberty.

Note also s.29 of 2001 Act: The first part of s.29 states that nothing in the Act prevents a person from being admitted voluntarily to an approved centre for treatment, without any application, recommendation or admission order being made under the Act. The second part states that nothing in the Act prevents a person from remaining in an approved centre after he/she has ceased to be so liable to be detained. The first part applies to Type 1 voluntary status; the second part applies to Type 2. Note that the word “voluntarily” does not appear in the second part of s.29.

It is arguable that the reference to “admitted voluntarily” in the first part of s.29 is not covered by the definition of “voluntary patient” in s.2. However, a counter-argument is that, reading the Act as a whole, it would appear that any reference to “voluntary” or “voluntarily” is intended to be covered by the definition of voluntary patient in s.2. In addition, s.20(2) of the Interpretation Act 2005 states that where an Act defines or otherwise interprets a word or expression, other parts of speech and grammatical forms of the word or expression have a corresponding meaning. This is not a complete answer to the issue as it remains arguable that s.2 defines the expression “voluntary patient” (as opposed to the word “voluntarily”) and the expression “voluntary patient” does not appear in any grammatical form in s.29.

Perhaps the drafters of the 2001 Act intended to retain the concept of voluntary admission as contained in the 1945 Act (but removing the formalities for such admission), while adding on a new concept of informal status (without reference to voluntariness) for those who remained in the centre after their involuntary detention had ended. Rather than defining these concepts separately, a decision was made to use the expression “voluntary patients” to apply to both. Once this was done, this may have had the unintended consequence that the word “voluntary” ceased to have the meaning it had under the 1945 Act.

The Mental Health Commission’s Code of Practice on Admission, Transfer and Discharge (2009) states that it is considered good administrative practice to use an admission form for voluntary patients, similar to that used for persons admitting themselves to hospital for medical or surgical procedures, which includes a general consent for admission and treatment. The code states that this does not obviate the need to obtain consent for specific treatment interventions.

De Facto Detention and the Bournewood case

Citations: • R. v Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] 1

A.C. 458 (C.A. and H.L.); [1997] E.W.C.A. Civ. 2879; [1998] U.K.H.L. 24 • H.L. v United Kingdom, Application No.44508/99, judgment 5 October 2004, (2005)

40 E.H.R.R. 32

This issue has been discussed in Anselm Eldergill’s paper, delivered at this evening’s seminar. Note that in the Bournewood case (also known as H.L. v U.K.) Mr. L., the patient, was admitted under Type 1 voluntary status (“informal admission” under English law). The European Court of Human Rights agreed that any suggestion that L. was free to leave was a

“fairytale”. Article 5(1) was breached because the detention was arbitrary; Article 5(4) was breached because periodic reviews of the detention were needed. Remember that the availability of the remedy of habeas corpus has been held not to be sufficient to satisfy Article 5(4) (X. v U.K. (1981) 4 E.H.R.R. 188).

The Scheme of the Mental Capacity Bill was published in 2008 but it does not address the problem of “the Bournewood gap”.

E.H. v Clinical Director St. Vincent’s

The citations for this case are: [2009] I.E.H.C. 69; High Court, O’Neill J., February 6, 2009; [2009] I.E.S.C. 46; [2009] 2 I.L.R.M. 149; Supreme Court, May 28, 2009. Anselm Eldergill has already discussed this case in this evening’s seminar. This case concerned type 2 voluntary status. The patient was detained in August 2008. Her renewal order was revoked on December 10, 2008 due to the wrong date being on the order. She was treated as a voluntary patient from December 10 to 22. On December 22, the re-grading procedure under sections 23 and 24 of the 2001 Act was invoked (re-grading from voluntary to involuntary status).

In the High Court, O’Neill J. found that the detention was lawful. Before considering the Supreme Court’s decision in this case, a number of points may be noted about the High Court judgment. It is very significant that O’Neill J. did not state that the 2001 Act requires that a “voluntary” patient be capable of consenting to their admission. He did not refer to J.H. v Russell [2007] 4 I.R. 242, where it was held that if the relevant period where a patient was, apparently, a voluntary patient, was not in substance properly voluntary, this renders his/her detention unlawful. While J.H. v Russell concerned the 1945 Act, it would be have been useful to compare the meaning of “voluntary patient” in the 1945 Act with its meaning in the 2001 Act. H.L. v U.K. could have been discussed in greater detail, for example the requirement for periodic review in Article 5(4) as applied in that case. It is unclear why O’Neill J. suggests that s.23 might have been used on December 10 as it can only be used if the patient indicates a wish to leave. It is significant, however, that O’Neill J. expressly reserved the question of whether the detention from December 10 to 22 was illegal. This at least might have allowed scope for further argument on these points in cases where the facts differed from the E.H.case.

The Supreme Court judgment was delivered by Kearns J. He said that mere technical defects should not give rise to a rush to court. (Contrast Peart J. in P.McG. v Medical Director of the Mater Hospital [2007] I.E.H.C. 401; [2008] 2 I.R. 332, where Peart J. stated that legal representatives have a duty to make Article 40.4 applications where breach of statutory procedures has occurred.) Kearns J. said that the definition of “voluntary patient” cannot be given a meaning which is contra legem. Even if the patient’s status was questionable on December 22, the current certification was based on a renewal order made on April 9, 2009, against which no challenge had been brought. He had difficulty in seeing the relevance of H.L. v U.K. Also, no domino effect applied and the case was a moot.

Given the facts of the E.H. case, the Supreme Court found that the short period of detention from December 10 to 22 was not unlawful as the treating psychiatrist’s affidavit stated that Ms. H. was a voluntary patient. The court’s finding that there cannot be a ‘domino effect’ unless there had been a gross abuse of power or default of fundamental requirements is consistent with previous case-law on the nature of applications under Art.40. However, the court’s finding that a “voluntary patient” need not have capacity to agree to their admission remains questionable. The court expresses no concern or difficulty with the fact that patients may be classified as “voluntary” even though they may not have capacity to consent to their admission on a voluntary basis.

As Kearns J. states, in H.L. v U.K., as a result of the lack of procedural regulation and limits, the hospital’s health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit. The European Court said that the very purpose of procedural safeguards is to protect individuals against any misjudgements and professional

lapses and concluded that it had not been demonstrated that the applicant had available to him a procedure which satisfied the requirements of Article 5(4) of the Convention. The Supreme Court’s response to this inE.H. is to state that H.L. could not possibly bear on the applicant’s detention subsequent December 22, 2008. However, this glosses over the fact that from December 10 to 22, those protections were not available.

M.McN. v Health Service Executive

[2009] I.E.H.C. 236; Peart J. May 15 2009.

This case involved two patients with severe dementia who were Initially detained on an involuntary basis. Their involuntary orders were revoked and their status was changed to voluntary status. Again, this was a type 2 voluntary status. The staff of the approved centre acknowledged that the patients did not have capacity to decide to remain in centre. The ward was locked at the entrance.

Peart J. said that the Health Service Executive owed a duty of care to the patients: “It would be grossly negligent for the hospital, following the required revocation of the admission/renewal order, to immediately bring these vulnerable patients to the front door of the hospital, lead them down the steps and to pavement and say to them ‘we no longer have any legal basis for keeping you in hospital, so off you go – home or wherever you can’. How could such an appalling vista be within the contemplation of an Act such as this which has at its heart the best interests of vulnerable patients?”

Peart J. said that this was similar to the locking of doors in a school for the safety of the children. The patients were free to leave provided they did so with a family member who could look after them. If the patient tried to leave, such an exit could be prevented by the invocation of powers under s.23 of the 2001 Act, but only if the requirements of that section were met. He said that s.23 “could not be invoked simply as a pragmatic device to prevent a person leaving who cannot do so without posing a danger either to himself or to others.” Even if the requirements of s. 23 were not met, the hospital could still keep the patient safe within the hospital by reasonable means and s.29, quite apart from any common law duty of care, gave it ample powers in that regard.

He distinguished the Bournewood case on its facts as follows: “[I]t is necessary to draw a fundamental distinction between the facts of the present case and the case of L. The point at issue in L. was really whether s. 131 empowered the hospital to admit L. as a voluntary patient who could not so consent, or whether by doing so he was ‘detained’ and unlawfully detained. That is a different situation to the present applicants. There is no dispute about the fact that they were each lawfully made the subject of an Admission Order when first admitted as involuntary patients. Their detention there under these orders, one of which was the subject of a later Renewal Order, was completely in accordance with the clear statutory provisions. The Mental Health Tribunal may have decided that these orders, or either of them, should be revoked, had they not been revoked prior to the hearing, but that is not relevant for present purposes. But, section 29 was not the basis of their admission, as s.131 of the English Act had been the case in respect of L. For that reason it is necessary to distinguish L. on its facts.” (Note how the type 1/ type 2 distinction was vital to Peart J.)

However, Peart J. went on to note that the Bournewood case was “of interest” and as he was obliged to have regard to the H.L. v UK case he had regard to it, although it was of limited value. He said that it did not seem to him that there was any statutory requirement that a person must be capable of expressing, and express, a consent to being in an approved centre on a voluntary basis before that person can be categorised as being a ‘voluntary patient’. If a patient was discharged from their admission or renewal order, this did not necessarily mean that they should be discharged from the approved centre. The provisions of s.29 supported the idea that a person whose detention has been revoked may remain at the approved centre after he or she has ceased to be subject to an involuntary detention order. That section did not state in any way that consent in that regard was required. It facilitated the situation in which these applicants were, by giving the approved centre the ability to continue to care and treat the patient where it would be inappropriate to release him

or her onto the street, where to do so would place the patient at risk if not accompanied by a responsible family member.

As a result of the above findings, Peart J. held that the patients were not in unlawful detention and refused the application for their release.

Peart J’s conclusion that a “voluntary” patient need not consent to their admission may be queried on the same grounds as were discussed above concerning the E.H. case.

His treatment of the H.L. v U.K. case may also be questioned. He distinguishes H.L. from the current case on rather thin grounds. In H.L., the patient was admitted as a voluntary patient. In M.McN., the patients were initially admitted on an involuntary basis, their orders were revoked and they then remained on a voluntary basis. Either way, the patients in both cases were classified as voluntary or informal and in H.L. the European Court of Human Rights held that such de facto detention breached the Convention.

Further details on points made in the above talk may be found in D. Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Thomson Round Hall, 2009).