2011: Restrictions of freedom
Article 40.4.1 of the Constitution states that nobody can be deprived of personal liberty save in accordance with the law. Therefore, in order to admit and detain a person in a psychiatric institution an application must be made to the courts in accordance with this article of the Constitution.
There are in theory two possibilities. The first possibility is that at the same time as making a person a ward of court, the judge makes a wardship order under section 15 of the 1871 Act. This contains an instruction that the ward be detained in a hospital or an institution. The other possibility is that the person is detained against his/her will in accordance with the Mental Health Act of 2001. (It should be noted that a review of the 2001 Act is imminent having been announced in a Government press release on September 7, 2011.)
In practice, however, it should be noted that many people with dementia are effectively detained outside the Mental Health Act 2001. The majority of people with dementia in nursing homes, for example, are not free to leave and would be stopped if they attempted to do so. It is to be supposed that many people with dementia fall within similar circumstances to those in the “Bournewood” case where they are incapable of consenting to what is in effect detention. The courts have yet to consider a case of this nature, where a person is effectively detained in what is not an approved centre under the 2001 Act, In relation to approved centres, the Irish High Court has interpreted “voluntary” to include the situation where a patient is incapacitated but compliant, arguably in conflict with the European Convention on Human Rights.
Conditions for involuntary internment
A person may be involuntarily admitted to an approved centre and detained there on the grounds that s/he is suffering from a mental disorder (but not uniquely because s/he is suffering from a personality disorder, is socially deviant or is addicted to drugs or intoxicants) (§8)
Earlier in the Act, in §3 (1), the definition of mental disorder provides further information about the conditions linked to involuntary internment. Mental disorder is defined as a mental illness, severe dementia or significant intellectual disability where:
- because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, OR
- because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, AND
- the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.
This is one of the few Acts on involuntary internment which specifically refers to dementia. The following definitions of mental illness and severe dementia are provided in §3 (2):
“mental illness” means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;
“severe dementia” means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression;
The procedure for involuntary internment
The request/application for involuntary internment
According to §9, a request to involuntarily admit a person to an approved centre can be made to a registered medical practitioner by:
- The spouse or a relative of the person,
- An authorised officer or
- A member of the Garda Síochána
- Any other person, with the exception of the following:
- A person under 18 years of age
- An authorised officer or a member of the Garda Síochána who is a relative of the person or of the spouse of the person
- A member of the governing body, or the staff, or the person in charge, of the approved centre.
- Someone who has an interest in the payment (if any) to be made in respect of the taking care of the person concerned in the approved centre.
- Any registered medical practitioner who provides a regular medical service at the approved centre.
- The spouse, parent, grandparent, brother, sister, uncle or aunt of any of the four above-mentioned categories of people (i.e. except for the under 18 year olds) regardless of whether they are related by blood.
In order to make such a request the person must have seen the one s/he is applying to have admitted within 48 hours of the date of the request. If someone, for the purposes of or in relation to an application, makes any statement which is to his/her knowledge false or misleading in any material particular, s/he shall be guilty of an offence.
§10 provides details of the process leading to the involuntary internment of the person and the role of the medical practitioner in that process. It is stated that if, upon examining the person for whom the measure is being requested, a registered medical practitioner is satisfied that the said person is suffering from a mental disorder, the medical practitioner shall make a recommendation to involuntarily admit that person to a specified approved centre (other than the Central Medical Hospital). This must be sent by the registered medical practitioner concerned to the clinical director of the approved centre concerned and a copy of the recommendation mist be given to the applicant concerned. Such recommendations are valid for seven days from the date they were made, after which they expire.
The person for whom the measure is intended must be examined within 24 hours of receipt of the application. S/he must be informed of the purpose of the examination unless the registered medical practitioner feels that the provision of such information might be prejudicial to the person’s mental, well-being or emotional condition.
The registered medical practitioner is not authorised to make a recommendation for involuntary internment if s/he:
- has an interest in the payments (if any) to be made in respect of the care of the person in the approved centre concerned,
- is a member of the staff of the approved centre to which the person is to be admitted,
- is a spouse or a relative of the person, or
- is the applicant.
If the application to have a person involuntarily interned is refused and the applicant would like to make a further application, s/he must informed the registered medical practitioner of the details of the prior application (§11).
Where a member of the Garda Síochána has reasonable grounds for believing that a person is suffering from a mental disorder and that because of the mental disorder there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons, the member may either alone or with any other members of the Garda Síochána take the person into custody. If necessary, s/he or they may enter by force into the place where the person is believed to be (§12-1). After having taken a person into custody in this way, the member of the Garda Síochána must make an application to a registered medical practitioner for a recommendation. If the application is later rejected, the person must be released from custody immediately.
The admission order
Whenever a recommendation for involuntary internment is received by the clinical director of an approved centre, s/he must arrange for a consultant psychiatrist on the staff of that approved centre to examine the person. If the consultant psychiatrist is satisfied that the person is suffering from a mental disorder, s/he may make an “admission order” for the reception, detention and treatment of the person (who, in the context of the Act, is then referred to as the patient). A consultant psychiatrist, medical practitioner or registered nurse of the approved centre may take charge of the patient and detains him/her for a maximum of 24 hours in order to carry out such an examination. The consultant psychiatrist cannot be the spouse or relative of the patient or the applicant. (§14)
Once an admission order or a renewal order has been made, the consultant must send a copy of the order to the Commission and inform the patient in writing of the decision and this must be done within 24 hours (§16). The statement to the patient must include the following details:
- That s/he is being detained pursuant to section 14 or 15 as the case may be
- That s/he is entitled to legal representation
- That s/he will be provided with a general description of the proposed treatment that s/he will receive
- That s/he has the right to communicate with the Inspector
- That his/her detention will be reviewed by a tribunal
- That s/he is entitled to appeal to the Circuit Court against the decision of the tribunal if s/he is the subject of a renewal order
- That s/he may be admitted to the approved centre as voluntary patient s/he so wishes.
The court procedure
On receipt of an admission or renewal order the Commission must as soon as possible refer the matter to a tribunal and assign a legal representative to the patient unless the patient proposes one him/herself. The tribunal must also issue a “direction” to a member of the panel of consultant psychiatrists to examine the patient concerned, interview the consultant psychiatrist responsible for the patient’s care, interview the consultant psychiatrist, review the patient’s records in order to determine whether the patient is suffering from a mental disorder and to provide a full report within 14 days which must be given to the legal representative of the patient. Anyone who obstructs or fails to cooperate with the consultant psychiatrist to whom a “direction” has been given shall be guilty of an offence (§17).
When an admission order or renewal order is referred to a tribunal, the tribunal must, not later than 21 days after the order was made, review the legitimacy of the detention and either affirm or alternatively revoke the order and order the release of the patient from detention (§18). The period of 21 days can be extended by a period of 14 days and then if the patient requests it by a further period of 14 days (if the tribunal is satisfied that this would be in the patient’s interests).
However, before making a decision, the tribunal must see the report produced by the consultant psychiatrist. The decision made by the tribunal and the reasons for it must be communicated to the Commission, the consultant psychiatrist, the patient and his/her legal representative and any other person to whom the tribunal is of the opinion that they should receive it.
The duration of involuntary internment
Once an admission order has been established, the patient may be detained and treated for a period of 21 days from the date of the order and shall then expire. This may be extended by means of a “renewal order” which must be made by the consultant psychiatrist who is responsible for the care and treatment of the patient concerned for a further period of up to 3 months (§15). This may in turn be extended by order made by the consultant psychiatrist by a period of up to 6 months beginning on the expiration of the renewal order. After that, the period may be extended by periods of up to 12 months each by means of a renewal order made by the consultant psychiatrist. For each of these renewal orders to be valid, the consultant psychiatrist must have examined the patient not more than one week before making the order and must confirm that the patient is still suffering from a mental disorder.
The process of review
The patient may appeal to the Circuit Court against the tribunal’s decision to affirm an order about him/her on the grounds that s/he is not suffering from a mental disorder (§19). The appeal must be made in writing by the patient or by his/her legal representative within 14 days of the notice of detention or prolongation of detention. The Circuit Court shall, depending on whether it is convinced of the patient’s claim not to be suffering from a mental disorder, either affirm or revoke the order.
The consultant psychiatrist concerned, the tribunal, the clinical director of the approved centre and any person specified by the Circuit Court shall be informed of any proceedings in connection with the appeal. Only officers of the Court, people directly concerned,bona fiderepresentatives of the Press and any other people that the Court sees fit, may be present in Court during the hearing. Nothing shall be published in a written publication available to the public or broadcast which might enable members of the public to identify a patient who is or has been the subject of such proceedings. Anyone who publishes or broadcast such information would be guilty of an offence.
A person who has been involuntarily interned cannot be placed in seclusion or restrained by mechanical means unless such seclusion or restraint is in accordance with the rules provided by the Commission and is necessary for the purposes of treatment or to prevent the said person from injuring him/herself or other people (§69 of the Mental Health Act of 2001). This also applies to voluntary patients. A person who contravenes this rule shall be guilty of an offence and may be fined up to £1,500.
While there has been progress in the development of awareness and an operational framework around the prevention of elder abuse, there is still no statutory framework for dealing with the mistreatment or abuse of adults. In 2007 the Health Service Executive introduced Guidelines on Elder Abuse. There is a dedicated Officer for Elder Abuse (a senior social worker) in each HSE region. The absence of a statutory framework and statutory powers for Elder Abuse Officers remains an issue. Where an adult who lacks capacity is found to be being abused, currently the only –and drastic- legal option would be to have them made a Ward of Court and removed from the situation.
Paragraph 26 (3) of the Road Traffic Act of 2010 states that the Bureau may from time to time arrange for research into the physical and mental fitness of drivers of vehicles.
The licensing of drivers is governed by the Road Traffic (Licensing of Drivers) Regulations 2006, Statutory Instrument 537 of 2006, as amended 2010.
Requirement for medical report
In general applications for a driving licence do not require a medical report (other than, in all cases, an eyesight report) except
a) When the vehicle is classified as category B i.e. higher risk vehicles such as lorries, buses
b) When the applicant is over 70 years of age.
c) Where the applicant has one of the conditions listed in the regulations as requiring a medical report. Dementia is not one of the specifically listed conditions
Certification may be for a limited period with a requirement for review.
Period of licence
Generally licences are issued for 3 or 10 year periods. However where the applicant is aged between 60 and 67, they may applyfor a 3-year licence or a licence that will expire the day before their 70th birthday.
If the applicant is older than 67 but under 70 years of age, they may apply for a 3-year licence. Over the age of 70, only one-year or three-year licenses are issued and medical certification of fitness to drive is required on each renewal of the licence.
There are no specific legal provisions as to what should happen if someone becomes unfit to drive during their licence period. It is possible that an insurance policy may become void if a condition is not notified to the insurer and therefore the offence of driving without insurance may be committed.
EH vSt Vincent’s Hospital and Ors IESC 46
Last Updated: Wednesday 14 March 2012