Mental Health Legislation
1. The Mental Health Act 2001
“An act to provide for the involuntary admission to approved centres of persons suffering from mental disorders, to provide for the independent review of the involuntary admission of such persons and, for those purposes, to provide for the establishment of a Mental Health Commission and the appointment of Mental Health Commission tribunals and an inspector of mental health services, to repeal in part the Mental Treatment Acts, 1945, and to provide for related matters.”
The Mental Health Act applies to situations where a person needs to be hospitalised in an involuntary capacity in an approved mental health service due to severe mental illness, otherwise known as involuntarily detained. This means that due to the illness, they are unable to give consent to be admitted to hospital. The Act also sets out processes for standards of care required for a person detained in hospital, including treatment, appeal mechanisms and inspection processes.
The Mental Health Act 2001 came into operation in full on 1st November 2006. It brings Irish mental health law in line with the European Convention on Human Rights. It has recently been reviewed by an Expert group. See the expert Group report and recommendations here.
Useful resources:
– Your Rights: Guide to the Mental Health Act 2001 by the Mental Health Commission
– Hearing Voices: The History of Psychiatry in Ireland, Professor Brendan Kelly – Chapter 7, pages 245 – 249 and pages 270 – 273. You can purchase the book here.
– Guide to the Mental Health Act 2001 by Citizens Information
– Review of the Mental Health Act (College members only)
2. Assisted Decision-Making (Capacity) Act 2015
“An Act to provide for the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or IN THE FUTURE, HAVING REGARD, INTER ALIA, TO THE PROTECTIONS AFFORDED BY THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS DONE AT ROME ON THE 4TH DAY OF NOVEMBER 1950 AS IT APPLIES IN THE STATE; to provide for the appointment by such persons of other persons to assist them in decision-making or to make decisions jointly with such persons; to provide for the making of applications to the Circuit Court or High Court in respect of such persons, including seeking the appointment by the Circuit Court of decision-making representatives for such persons; TO PROVIDE FOR THE MAKING OF ADVANCE HEALTHCARE DIRECTIVES BY PERSONS OF THEIR WILL AND PREFERENCES CONCERNING MEDICAL TREATMENT DECISIONS SHOULD SUCH A PERSON SUBSEQUENTLY LACK CAPACITY; TO PROVIDE FOR THE APPOINTMENT IN ADVANCE HEALTHCARE DIRECTIVES OF DESIGNATED HEALTHCARE REPRESENTATIVES WITH THE POWER TO, inter alia, ENSURE THAT THE ADVANCE HEALTHCARE DIRECTIVES CONCERNED ARE COMPLIED WITH; to provide for the appointment and functions of the Director of the Decision Support Service in respect of persons who require or may shortly require assistance in exercising their decision-making capacity; to provide for the amendment of the law relating to enduring powers of attorney; to provide for the ratification by the State of the Convention on the International Protection of Adults; and to provide for related matters”
The Assisted Decision-Making (Capacity) Act 2015 was introduced to replace the outdated Lunacy Regulation (Ireland) Act 1871 under which the ward of Court system operated.
Its main purpose is to provide a legal framework for decision-making in various aspects of life for individuals (i.e. welfare, affairs and property) whose capacity may be impaired for many different reasons and they need help with certain decisions. A person’s severe mental illness or episode may impair their decision-making ability at a specific moment in time on a particular affair. It was written to be compliant with the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD).
The Act, which places the will and preferences of a person with impaired capacity at the centre, stipulates three types of support:
- Assisted Decision-Making
- Co-Decision-Making
- Decisions by the court or by a Decision-Making Representative appointed by the court
Advance Healthcare Directives (living wills) and Enduring Powers of Attorney and new arrangements for Wards of Court are covered in the new 2015 Act.
A Decision Support Service (DSS) is to be set up to provide a range of functions in relation to the new Act and will sit within the Mental Health Commission.
View College comments on the Assisted Decision-Making (Capacity) Bill before it became an act in December 2015.