Mental Health and Capacity law

The area of Mental Health Law is Ireland is a very specialized area. Since the commencement of the Mental Health Tribunal process in Ireland we have been actively involved in advising clients with respect to their rights both pursuant to legislation, common law and constitutions law. The Mental Health Act, 2001 is currently under review and John Neville has been involved in making submissions in relation to amendments to the Mental Health Act both individually and as a committee member of the Irish Mental Health Lawyers Association and as a committee member of the of the Mental Health and Capacity committee.

The area of Capacity Law in Ireland is currently pending major reform as a result of the publication by the Government of the Assisted Decision-Making (Capacity) Bill 2013. This Bill is in its current format an extremely complicated piece of legislation. There are various issues arising in the context of the legislatures attempts to decouple this legislation for the area of mental health legislation. There also is considerable concerns with respect to the involvement of the Judiciary who will have a significant involvement in the process. The fears are that there will be a paternalistic interpretation to the legislation and effectively putting a zero any potential for real change in the area of capacity law. We have seen this in the area of appeals of Mental Health Tribunal decisions where in the past 7 years despite several hundred appeals having been filed before the Circuit Court there still has not been one single finding in favour of an appellant to the decision of the Mental Health Tribunal findings. Effectively the paternalistic interpretation being adopted equates with the principle that, “doctor knows best”. This is an area of significant potential to assist individuals throughout the state to have the ability to self-determine aspects of their lives which until now have been decided upon by third parties without any input by individuals who are deemed to lack capacity. Certainly there are many interested parties making submissions seeking very important changes to this legislation which may if taken on board by the Government could make Ireland a leader in the area of Capacity law.

John Neville was appointed as a Legal Representative under the Mental Health Act, 2001 by the Mental Health Commission. He is involved in the process of representing individuals who have been involuntarily detained in approved centres. Clearly the question that has to be raised on behalf of clients who are involuntary patients in approved centres is whether they should be involuntarily detained on an inpatient basis. An individual can only be detained where they fulfil the criteria of Section 3 of the Mental Health Act, 2001, i.e. does the individual suffer from mental disorder as defined therein. The role as a Legal Representative is to advocate on behalf of the individual detained as an “effective legal representative”. Since the commencement of the Mental Health Tribunal Process John Neville has been involved in representing individuals before Mental Health Tribunals on an almost weekly basis. John has been involved in a significant number of appeals of decisions of Mental Health Tribunals to the Circuit Court. He has also been involved in a number of Judicial Review and Constitutional challenges to orders detaining clients before both the High Court and Supreme Court. Examples of cases that he has taken on behalf of clients includes:

CD –v- Clinical Director of the Central Mental Hospital and the Minister for Justice and Equality, Supreme Court 6th February 2013

S.M. –v-  The Mental Health Commission [2008] I.E.H.C. 441; [2009] 2 I.L.R.M. 127; High Court, McMahon J., October 31, 2008

F.W. –v- Department of Psychiatry, James Connolly Hospital [2008] IEHC 283, Hedigan J., High Court, August 18 2008

S.C. –v- Clinical Director of Jonathan Swift Clinic, St. James Hospital ex tempore, Supreme Court, December 5, 2008

Mental Health Tribunal from a Legal Representatives perspective

How a Legal Representative becomes involved in a case?

The Mental Health Commission receives a copy of the Admission Order from the approved center (the detaining psychiatric unit). The Mental Health Commission appoints a legal representative on the Mental Health Commission Legal Representatives panel and assigns the particular case to the Legal Representative. It is expected that the Legal Representative will give that case priority once assigned.

What is a Complex case from the point of view of a Legal Representative?

In general the approach to each individual case is that you are dealing with an individual who is being involuntarily detained in an approved center against their will, where they are not deemed to have capacity to consent or where the client does not consent to such a detention. In cases where a client does not have capacity, it must be taken that the Legal Representative would assume that if the individual had capacity that they would not be consenting to such a detention. It would be expected that if the client were well enough to consent to treatment they would be made voluntary patients. The whole area of the need for Capacity legislation becomes very apparent in dealing with individuals who lack Capacity where they are being treated both as voluntary and involuntary patients. This creates difficulty for Legal representatives but much more so for members of the medical treating team of individuals where there is a capacity issue.

Clearly as a legal representative who may only have dealings with individual clients whom will be patients of particular Consultant Psychiatrist for many years, there is an incumbent requirement upon the Legal Representatives to use their best endeavors not to create an environment of conflict within the tribunal process. Many clients are in crisis points in their lives where they are trying to deal with many personal crisis issues and it should be the case that the whole Tribunal process does not becomes an additional element of concern to persons in such extreme difficult circumstances at that particular point in time in their lives. Legal Representatives will also where expressly consented liaise with the family members of the detained client.

A non-exhaustive list of examples of issues that may make a case complex include:

  •  A question mark is over the issue of your client coming within the definition of a person who is suffering from a mental disorder within the meaning of Section 3 of the Mental Health Act, 2001.
  • Your client and members of their family may indicate to you the legal representative that they believe that the detention of their family member is not benefiting them and that they would be better cared for in a different setting/without forced medical intervention.
  • As a Legal Representative you are aware that there is a care plan in place that has a goal of achieving the long term well-being of your client, but due to a lack in resources there is a continued detention of your client. Such circumstances may raise a question mark with regard to the clients continued detention being dealt with where their personal rights are being restricted more that is medically necessitated if there were not a resources issue.
  • Where you have conflicting medical opinions in relation to your client with regard to the existence of a Mental Illness.
  • Where there is a less restrictive environment that would allow for the same treatment without the deprivations of the individuals liberty.

Adversarial verses Inquisitorial approaches to Mental Health Tribunals  

The role of the Legal Representative is not set out in the current legislation, however given that Legal Representatives cannot be seen to have any medical knowledge then it must be taken that the role of the Legal Representative is to ensure that the procedural safeguards that are put in place by the legislation are adhered to. It must also be taken that one of the fundamental roles of the Legal Representative is to act as an effective representative on behalf of the client who is detained pursuant to the Admission Order or Renewal Order.

It should be noted that all Legal Representatives are appointed by the Mental Health Commission and therefore are obliged to comply with all guidelines and obligations as set out in their terms and conditions of their appointment. All Legal Representatives currently are also solicitors and as such must be members of the Law Society of Ireland. Legal Representatives are therefore obliged to comply with the guidance and ethical guidelines as set out by the various committees of the Law Society.

In representing a client who is detained in an approved centre, the question of the approach to a Mental Health Tribunal is quite often a balancing act. If a Legal Representative were to approach the Tribunal in a purely adversarial manner putting the detainer on full proofs at each Mental Health Tribunal and requiring compliance with the normal rules of evidence there would most certainly be an environment within the Mental Health Tribunals that could not be deemed to be beneficial to the client.

It must however be noted that the Legal Representative has a function to act as an effective representative on behalf of the client and takes their instructions from their clients and must act on those instruction and attempt use their best endeavor’s to seek the requested outcome on behalf of their client no matter how bizarre or unrealistic such an outcome appears to be to the Legal Representative.

Most often the majority of any given tribunal hearing will be dealt with in an inquisitorial manner. The role of the Legal Representative is to ensure that your client is heard when they wish to be heard, this is their forum to express their position and not that of the Legal Representative or of their treating Consultant Psychiatrists. It will be the case however that by the very nature of the outcome that is sought by a client seeking an immediate discharge as against a Consultant Psychiatrist who is seeking a continued detention in the best interests of their Patient that there will be a necessity to have an adversarial approach to part of the Mental Health Tribunal. There will be questions that must be asked that can by the very nature of the divergence of views of the various parties at the tribunal require an adversarial approach to seek a full and meaningful response to the issues raised.

The purpose of the Legislation was to ensure that there were safeguards put in place to protect patients detained under the Mental Health Act. There often arises a very complex issue for a Legal Representative, that being where it appears the detention is clinically justified, but where there appears to be an unlawful detention. This is an issue that often arises at Tribunals where there have been some fundamental errors or flaws in the procedures adopted in the process of having an individual involuntarily admitted to an approved center.

Clearly the legal representative has difficulty in deciding what should be done in the best interests of his client and to what extent a Legal Representative should go to provide effective representation on behalf of his or her client. Some clear guidance can be taken from a passage of Mr. Justice Kearns in the decision of the Supreme Court decision in E.H. v. St. Vincent’s Hospital, 28th May 2009:

The fact that s.17 (1) (b) of the Act of 2001 provides for the assignment by the Commission of a legal representative for a patient following the making of an admission order or a renewal order should not give rise to an assumption that a legal challenge to that patient’s detention is warranted unless the best interests of the patient so demand. Mere technical defects, without more, in a patient’s detention should not give rise to a rush to court, notably where any such defect can or has been cured – as in the present case. Only in cases where there has been a gross abuse of power or default of fundamental requirements would a defect in an earlier period of detention justify release from a later one. As O’Higgins C.J. observed in State (McDonagh) v. Frawley [1978] I.R. 131 at 136:-


“The stipulation in Article 40, s.4, Sub-s. 1, of the Constitution that a citizen may not be deprived of his liberty save “in accordance with law” does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded”

This decision would place an obligation on the legal representative to consider the best interests of their client in advance of making any application on behalf of a client with regard to the question of the lawfulness of their detention. There is currently considerable debate with regard to an interpretation as to what extent a legal representative can enter into the realm of consideration of the question/issue of a client’s medical best interests/legal best interest. Section 4 of the Mental Health Act, 2001 defines the term, “Best Interests” as set out here:

4.—(1) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.

As you will note the section refers to the making of a decision under this Act concerning the care or treatment of a person, Legal Representatives do not make decisions with respect to the care and treatment of individuals. Furthermore the simple fact that legal representatives has no qualifications to consider anything with respect to a client’s medical best interest. So is it the case that only the legal best interests should be considered by the legal representative? If this were the case then it would appear that there would be significant difficulties for legal representatives in determining what aspects of a client’s legal best interests should be protected. Surely there will be significant crossovers between a client’s medical best interests and a client’s legal best interests!

For further consideration of this issue there is some guidance to be had from a Supreme Court Decision of Montana. In this case a detail of what is deemed to be “effective representation” is set out in the decision of the Supreme Court of Montana in Re the mental health of K.G.F. 2001 MT 140, in which the Court examined the issue of representation of persons detained due to psychiatric illness. The court replied heavily on the Guidelines for Involuntary Civil Commitment as published by the Centre for State Courts in the United States. ( The Supreme Court of Montana stated:

84. To what extent an attorney representing a patient-client in an involuntary commitment proceeding should adopt an “adversarial” posture is a subject of extensive debate among state legislatures and commentators, and is noticeably absent from Title 53, Chapter 21 statutes.

85. As indicated earlier, other states have adopted express statutory provisions defining this role. See e.g., Minn Stat Ann § 144.4177 (counsel shall be a “vigorous advocate on behalf of the client”). As the “Commentary to the Guidelines’ states: “[w]hen an attorney fails to act as an advocate and assumes a paternalistic or passive stance, the balance of the system is upset, the defense attorney usurps the judicial role, and the defendant’s position goes unheard.” Guidelines, Part E2 Commentary, at 466 (internal quotations omitted).

86. Accordingly, we agree with the Guidelines as well the approach taken in Texas that the proper role of the attorney is to “represent the perspective of the respondent and to serve as a vigorous advocate for the respondent’s wishes” See Guidelines, Part E2, at 465.


To the extent that a client is unable or unwilling to express wishes, the attorney should advocate the position that best safeguards and advances the client’s interest.

                Guidelines, Part E2, at 465. Additionally:

In the courtroom, an attorney should engage in all aspects of advocacy and vigorously argue to the best of his or her ability for the ends desired by the client.

                Guidelines, Part F5, at 483.

87. The foregoing guidelines create the presumption that a client wishes to not be involuntarily committed. The ultimate decision of whether a patient-respondent should be involuntarily committed, therefore, should not be independently made by counsel. See Tex. Health & Safety Code Ann. § 574.004(providing that “regardless of an attorney’s personal opinion, the attorney should use all reasonable efforts within the bounds of law to advocate the proposed patient’s right to avoid court-ordered mental health services if the proposed patient expresses a desire to avoid the services”)

88. Thus, we conclude that pursuant to the foregoing guidelines, evidence that counsel independently advocated or otherwise acquiesced to an involuntary commitment in the absence of a voluntary and knowing consent by the patient respondent will establish the presumption that counsel was ineffective.

Clearly the above decisions set out the parameters that a legal representative should properly act within on behalf of his or her clients. The fact that what the legal representative is arguing is perhaps to the reasonable person completely contrary to what is in fact in the clients/patients best medical interests. This is however the reason for the Mental Health Tribunals who are in a position to make the independent assessment as to the client/patient’s individual case. This is the opportunity for each client who is involuntarily detained to have their fundamental rights protected with the benefit of effective legal representation while at the same time considering the patients Best Interests.

Examples of Questions that may be put to a Consultant Psychiatrist in a Mental Health Tribunal:

  • If the client were to present today before you for an assessment never having been in your presence before would you detain this individual on an involuntary basis.
  • How can you continue to justify the continued detention of the patient where it appears that there is now no further improvement likely given the previous presentations and as such no further benefit likely to occur?
  • Why is the continued involuntary order continuing where the client has stated and indicated a willingness to remain in the approved center as a voluntary basis?
  • Why is it indicated that the patient is at risk of absconding where the patient is involuntarily detained, has the patient been given the opportunity to remain voluntary to show such a risk?
  • When it is stated that you believe that the patient lacks insight, to what extent does this effect your reasoning for the continued involuntary detention?
  • Why has the renewal order been simply made for the maximum period permitted, what were the grounds to make such a clinical judgment? See decision of SM –v- The Mental Health Commission, High Court, 31st October, 2008 McMahon J.
  • Seek reasons as to why the client is not being treated in a less secure environment or by less restrictive means where there is such an alternative to restrictions on their personal rights?
  • Why is a particular course of treatment being given to a Patient where you believe they now lack capacity to make a decision in their best interests where they have previously made an advance decision to refuse such treatment when they had capacity?
  • When a decision has been made in relation to a form of medical intervention/continued detention, what considerations were given to the patient’s bests interests? How was the decision reached? Who was consulted? What were the reasons for the decision? What was the involvement of the patient in reaching the decision?


There are many conflicting views in relation to how a Legal Representative should deal with a case before a Mental Health Tribunal. A Mental Health Tribunal is a quasi-judicial tribunal governed by the Mental Health Acts, 2001 – 2009. They are also governed by many rules and procedures for such state bodies.

There are two main rules of natural and constitutional Justice applying to Mental Health tribunals. Tribunals must be impartial and Tribunals must give a fair hearing to each party (Darius Whelan, Mental Health Law & Practice, 2009, pg 271.)

Legal Representatives must at all times act as effective representatives for their clients. Legal Representatives do not make decisions in relation to the care and treatment of their clients but it is incumbent for a Legal Representative not to do anything that could cause a deterioration in the mental health of their client’s. It is this Legal Representatives personal view that from the perspective of a Legal Representative that what must be done on behalf of a client is that they, the client, be provided with effective legal representation and that in doing such that they will most likely get the best possible outcome from the Tribunal Process.

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