OPINION:THE RECENT High Court decision that a voluntary patient in a psychiatric hospital was not held unlawfully despite making several requests to leave the locked unit ( Irish Times, January 25th), serves as a reminder of the unacceptable position of such patients under Irish mental health law.
Each year, there are about 20,000 admissions to Irish psychiatric hospitals and units. Of these, approximately 90 per cent are voluntary admissions. We do not know how many of these patients lack the mental capacity to consent to admission. Nor do we know how many patients who have capacity have genuinely chosen to be admitted and how many have agreed to be admitted voluntarily to avoid the stigma of involuntary admission.
However, studies in other countries suggest that many “voluntary” admissions are made on this basis.
We do know that there are an unusually high number of long-stay patients in Irish psychiatric hospitals. An inpatient census in 2006 found that about a third of patients had been hospitalised for more than five years and almost half of these were over 65. For these patients, there is no alternative home and any description of their ongoing hospitalisation as “voluntary” is farcical.
Unfortunately, this is what the Mental Health Act 2001 provides. A patient is defined as “voluntary” simply on the basis that he or she has not been involuntarily admitted, in other words has not objected to admission. This statutory departure from common sense was, surprisingly, approved as constitutional by the Supreme Court in 2009.
The problem is that the legislative protections in our law apply only to patients who have been involuntarily admitted. Unlike involuntary patients, voluntary patients remain in psychiatric hospitals without any requirement of external review of admission or detention. This is in spite of the fact that many voluntary patients (some studies suggest up to half) experience significant deprivations of their liberty (eg locked wards or confiscation of shoes) while they are in hospital. Treatment decisions for “voluntary” patients are also made without external oversight. This means that two patients in the same ward may receive exactly the same medical treatment, yet one will have an automatic review by a second doctor, the other, not.
A good deal of attention has rightly been paid to the fact that under current legislation, it is legally permissible to prescribe electroconvulsive therapy to an unwilling involuntary patient. Yet, a study by the Mental Health Commission reveals that the majority of electroconvulsive therapy is prescribed to voluntary patients and is effectively prescribed without oversight. Similarly, while medication prescribed to involuntary patients must be reviewed by a second doctor after three months (unless the patient has capacity and gives written consent), there is no legal requirement for review of voluntary patients’ medication. This, despite evidence of over-prescription of sedative medication, in particular benzodiazepines, in Irish psychiatric facilities.
It is highly doubtful the current law would withstand scrutiny under the European Convention on Human Rights. In HL v United Kingdomin 2004, the court found the UK to be in breach of the right to liberty because its law allowed an autistic man who lacked capacity to be admitted to a psychiatric hospital without any formal review. It found that the right to liberty was too important for a person to lose the protection of the European convention simply because he did not appear to object to admission.
The court took a similar approach in Storck v Germanyin 2005. It found that the administration of treatment against the will of a patient was in breach of her right to bodily integrity. The fact that the patient lacked capacity was not important. What mattered was that the treatment was carried out against her wishes. The lack of appropriate procedures to regulate the treatment of patients who had not been formally admitted was found to be a violation of the convention.
Current Irish law also contravenes the United Nations Convention on the Rights of Persons with Disabilities, which Ireland has signed and committed to ratify. This requires states to have “appropriate and effective safeguards to prevent abuse” of people lacking capacity. By no stretch do we meet this requirement.
The Mental Health Act 2001 is under review and publication of the Mental Capacity Bill appears finally to be imminent. There is a risk, however, that the position of voluntary patients will fall between these two statutes and not be addressed properly in either. It is essential that the legislature address this unacceptable omission in Irish law in respect of a highly vulnerable category of patient. On this matter, civil society must hold the legislature to account.
Dr Mary Donnelly is senior lecturer in the law faculty, University College Cork