OPINION:Since 2006, numbers detained against their will over mental health have fallen 30 per cent
The MENTAL Health Commission reported last week that in 2011 there had been an increase of 5 per cent in the involuntary admission of patients to hospitals – a total of 2,057 patients detained against their will.
Does this indicate a failure of the measures introduced in 2006 to protect these patients? I do not think so. Involuntary admissions are down about 30 per cent on admissions prior to the introduction of protective measures and appear to have stabilised. Admission as a psychiatric patient is either “voluntary”, where the patient elects to be admitted; or “involuntary”, where the admission is triggered by a relative or a medical doctor or the Garda, and the person does not want to be admitted or is unable to indicate consent. The vast majority are “voluntary”.
The involuntary detention of a person in a hospital is a huge invasion of their human rights. Until recent times, the protection afforded was wholly inadequate but was corrected by the Mental Health Act 2001. This required that an involuntary detention had to be reviewed by an independent tribunal within 21 days of admission. During that 21 days, the Mental Health Commission appoints a solicitor to represent the patient (free to the patient), an independent consultant psychiatrist to examine the patient, and a tribunal, which will have available to it this independent report.
Having sat on over 50 of these tribunals from their commencement in 2006 until I retired in 2010, I can say the system works very well and does protect the patient. But there is always room for improvement.
Each tribunal consists of three people – a lawyer in the chair, an independent consultant psychiatrist and a lay person – all drawn from panels with training.
Its decision-making power is limited to “affirming” or “revoking” the detention order. It may inquire about the care and treatment of the patient, including the medication regime, but has no powers there.
In 2011, there were 1,771 hearings during which the tribunals “affirmed” 90 per cent of the orders and “revoked” 10 per cent.
Does that mean the tribunal is critical of the admitting hospital in 10 per cent of the cases? Not necessarily so. The key task of the tribunal is to determine whether, at the time of the hearing, the patient is suffering from a “mental disorder” as defined in the 2001 Act. In many of those 10 per cent of cases the likelihood is that the patient was suffering from a “mental disorder” at the time of admission but by the time the tribunal sat (about 18 days on average after admission) the medication would have kicked in.
The tribunal sits in the admitting hospital. Attending are the responsible treating consultant psychiatrist, the patient’s solicitor, and the patient (usually). Many patients appreciate the opportunity to “tell their story” – even when subsequently told the order for their detention is “affirmed”.
But some patients find the process very disturbing. This is particularly so where the patient is in denial and the treating consultant psychiatrist is giving evidence to the tribunal about their behaviour to support the diagnosis. But this doesn’t happen often as patients likely to be disturbed by the tribunal process do not attend. But, when it does happen, the chairperson usually defuses the situation with a short adjournment.
So have the tribunals been a success in protecting the involuntary psychiatric patient?
I believe that they have been. The 30 per cent reduction of involuntary admissions since pre-tribunal days speaks for itself. And while the 10 per cent of orders revoked may seem small, it hides the fact many orders are revoked by the involuntary patient’s treating consultant before they can get to a tribunal – in 1,397 cases in 2011.
The tribunals have adopted a flexible, non-adversarial approach where evidence is not generally given on oath, where there is questioning rather than cross-examination, and where everything is private and confidential, and where the decision is given there and then.
While I believe that the mental health tribunals have been hugely successful in protecting the human rights of involuntary patients, I believe they would be strengthened by having the independent consultant psychiatrist examine the patient also on the day of the tribunal and be available at the tribunal hearing. Also there should be competency testing of the tribunal members by an independent assessor.
Henry Murdoch is chairman of the National Rehabilitation Hospital, Dún Laoghaire. He is consulting editor of Murdoch’s Dictionary of Irish Law (Bloomsbury Professional)