Mental Health and Capacity Law Conference 2019

The annual Mental Health and Capacity Law conference takes place on Saturday 6 April at Brookfield Health Sciences Complex, UCC.

This conference is jointly hosted by the Centre for Criminal Justice & Human Rights, School of Law, UCC and the Irish Mental Health Lawyers Association.

Topics to be considered will include recent case-law on the Mental Health Act 2001, developments in capacity law and comparative reflections on mental health law in England & Wales. 

The conference is topical as there have been two relevant amending Acts passed in 2018:

- the Mental Health (Renewal Orders) Act 2018

- the Mental Health (Amendment) Act 2018 [not yet commenced] 

In addition, discussions are continuing on the implications of the Assisted Decision-Making (Capacity) Act 2015, due to be commenced in 2020.  The commencement of this Act will further the state’s progress towards implementation of the Convention on the Rights of Persons with Disabilities, which Ireland ratified in 2018. 

Details of the conference may be found at

https://www.uccconferencing.ie/product/ccjhrimhlaconference6thapril/

For further information please contact Deirdre Kelleher,  deirdrekelleher@ucc.ie or on 021 490 3642.

Speakers will include:

• Judge Anselm Eldergill, Court of Protection, England
• Ms Barbara Brennan, See Change Co-Ordinator and Mental Health Consultant
• Ms Áine Hynes, Partner, St. John Solicitors, Dublin
• Dr Miriam Kennedy, Consultant Psychiatrist, Highfield Healthcare, Dublin
• Mr Paul Brady, Barrister
• Mr Richard Hammond, President, Southern Law Association, and Chairperson, Mental Health and Capacity Task Force of the Law Society of Ireland

Conference Convenors:  Dr Darius Whelan, School of Law, UCC and Ms Joan Doran, Solicitor, Chair, Irish Mental Health Lawyers Association 

Further Information from Ms Deirdre Kelleher, School of Law, UCC, phone (021) 490 3642, email deirdrekelleher@ucc.ie.

 CPD points are available for Solicitors and Barristers 

College of Psychiatrists of Ireland – 3.5 Hours CPD Credit.    (https://www.irishpsychiatry.ie/product/mental-health-and-capacity-law-conference-2019/)

Áine Hynes: The Assisted Decision-Making (Capacity) Act 2015 – What to Expect in Practice

Áine Hynes  -  Casey Photography 

This a summary of the presentation by Áine Hynes to the Legal Capacity Conference 2016 at University College Cork. The summary was written by Joanna Ralston.

More information on the Legal Capacity Conference - http://imhla.ie/events/.

Slides and videos from the conference –
http://www.ucc.ie/law/docs/mentalhealth/conferences/capacity-2016.shtml


Ms Áine Hynes is a Partner in St. John Solicitors, Dublin.  the title of her presentation was ‘The Assisted Decision-Making (Capacity) Act 2015 – What to Expect in Practice’. 

Ms Hynes was very positive about the Act and stated that she would not be surprised if the Act was commenced before the end of this year. Ms Hynes was of the view that there is no need to panic and that there is a very clear legal structure set out in the Act.

Ms Hynes outlined some of the more significant legal changes that the Act will introduce such as the abolition of the Ward of Court system, changes to the Powers of Attorney, advance healthcare directives and the role that the Director of the Decision Support Services will have when that person is appointed and the legislation is commenced.

Áine Hynes’ slides:
http://www.ucc.ie/law/docs/mentalhealth/conferences/13.00-Aine-Hynes.pdf

[Photos by Casey Photography]

Alan Corkery: A Psychiatrist’s Perspective on the Assisted Decision-Making (Capacity) Act 2015 - Unanswered Questions

This a summary of the presentation by Alan Corkery to the Legal Capacity Conference 2016 at University College Cork. The summary was written by Joanna Ralston.

More information on the Legal Capacity Conference - http://imhla.ie/events/.

Slides and videos from the conference –
http://www.ucc.ie/law/docs/mentalhealth/conferences/capacity-2016.shtml


Dr Alan Corkery is a Consultant Psychiatrist in Rehabilitation Psychiatry, North Cork Mental Health Services.  The title of his presentation was ‘A Psychiatrist’s Perspective on the Assisted Decision-Making (Capacity) Act 2015: Unanswered Questions’.

Dr Corkery spoke about the 2015 Act from the perspective of a psychiatrist. Dr Corkery stated that there are only a handful of what he referred to as historical Wards of Court in Ireland at present, all of which must be reviewed within 3 years of the legislation coming into operation. Dr Corkery was of the view that there are a lot of wards out there that have never been subject to a formal review and that it remains to be seen how many of those wards are out there that are subject to de facto wardship.
Dr Corkery also raised the issue of costs and how they can be contained. He was of the view that the Act is not clear on legal aid provisions for those who will be subject to court procedures.

Alan Corkery’s Slides:
http://www.ucc.ie/law/docs/mentalhealth/conferences/12.30-Alan-Corkery.pdf

[Photos by Casey Photography]

Louise Loughlin: Perspective on Capacity Issues from the National Advocacy Service

Louise Loughlin - Casey Photography 

This a summary of the presentation by Louise Loughlin to the Legal Capacity Conference 2016 at University College Cork. The summary was written by Joanna Ralston.

More information on the Legal Capacity Conference - http://imhla.ie/events/.

Slides and videos from the conference –

http://www.ucc.ie/law/docs/mentalhealth/conferences/capacity-2016.shtml

Louise Loughlin is National Manager at the National Advocacy Service for People with Disabilities.  The title of her presentation was ‘Perspective on Capacity Issues from the National Advocacy Service’.
Ms Loughlin spoke about how the individual can get lost in the process. Ms Loughlin was of the view that Ireland requires a cultural shift towards supporting decision-making and that there may in certain circumstances be a role for advocacy services to operate as decision-making assistants. Ms Loughlin raised the important point as to who is going to ensure that the voice of the individual is actually heard?

Louise Loughlin’s Slides:  
http://www.ucc.ie/law/docs/mentalhealth/conferences/11.30-Louise-Loughlin.pdf

Video of Louise Loughlin’s Presentation

[Photos by Casey Photography]

Mary Donnelly on Policy and Principles in the Assisted Decision-Making (Capacity) Act 2015

Mary Donnelly - Casey Photography 

This a summary of the presentation by Mary Donnelly to the Legal Capacity Conference 2016 at University College Cork. The summary was written by Joanna Ralston.

More information on the Legal Capacity Conference - http://imhla.ie/events/.

Slides and videos from the conference –

http://www.ucc.ie/law/docs/mentalhealth/conferences/capacity-2016.shtml

Mary Donnelly is a Professor at the School of Law, University College Cork.  The title of her presentation was ‘Policy and Principles in the Assisted Decision-Making (Capacity) Act 2015’.

Professor Donnelly highlighted some of the policy issues and principles contained in the 2015 Act. She stated that she had some very serious concerns about resources and how we are going to face the challenge of giving this Act effect in reality.
Professor Donnelly spoke about the fact that there will be many stumbling blocks along the way but that yet there is also a lot of potential in the Act.
In referring to some of the principles of the Act, Professor Donnelly spoke about the looseness of the language contained in the Act. She asked, how are these principles going to be given effect in practice?
Professor Donnelly referred to the Act as being complex containing 146 sections. Implementation of the Act will require extensive regulations and codes of practice. Professor Donnelly was of the view that she would like to see a provision contained in the Code of Practice that would enable us to see and to know how the Act is working in practice.

Mary Donnelly’s slides:
http://www.ucc.ie/law/docs/mentalhealth/conferences/11.00-Mary-Donnelly.pdf

Video of Mary Donnelly’s Presentation

[Photos by Casey Photography]

Peter Bartlett on Implementation of Capacity Legislation

Peter Bartlett -    Casey Photography 

This a summary of the presentation by Peter Bartlett to the Legal Capacity Conference 2016 at University College Cork. The summary was written by Joanna Ralston.

More information on the Legal Capacity Conference - http://imhla.ie/events/.

Slides and videos from the conference –

http://www.ucc.ie/law/docs/mentalhealth/conferences/capacity-2016.shtml

Professor Peter Bartlett is Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, University of Nottingham.  The title of his presentation was ‘Capacity Legislation and the Challenges of Implementation’.

Professor Bartlett in referring to the experience in the UK in implementing the Mental Capacity Act 2005 highlighted some of the problems that occurred, some of which may be relevant in the Irish context. The Act has not permeated into the professional population, service users, carers or the general population and is not relied upon very much despite a lot of cash resources being put into its implementation.

The Act has not integrated into the professional culture. Professor Bartlett was of the view that we may have difficulty also in Ireland getting traction for the Assisted Decision-Making (Capacity) Act 2015 and it is something that we are going to have to resource properly.

Professor Bartlett referred to the problem of scale given that capacity issues can virtually cover decisions in any setting. Associated with this problem is how it is possible to get the statute embedded into the way we think so that it becomes more than a tick box exercise. Phrases likes changing professional ethos sound great but how in practical terms is this to be achieved?

How can the Act be successfully implemented from a family perspective? It is difficult to ensure that the family as a unit can function; it is more than just about the Act, it is also about the other family members and how to ensure that those who are most vulnerable are being protected.

He discussed the flexibility of the language in the Act and how much weight should be attached to the language in the Act. he asked, how can “wishes and preferences” be accommodated? In the Irish context the Act refers to will and preferences in circumstances which are “practical”. This raises the questions as to who decides what is practical?

He raised the issue of professional colonization which in his view in the UK is largely by social workers and to some degree medics. The experience in the UK has been that if testing capacity is controversial then it is largely dealt with by professionals. The Act in the UK to a certain extent has allowed professionals to do what professionals want to do. He referred to “collegiate” decision-making where no one has personal responsibility for the decision being taken where families can be pushed aside despite the existence of best interests.

Professor Bartlett also referred to the issue of the courts and the inherent delays in the Court process and that this is not an option for poor people.

Finally, Professor Bartlett referred to the role of the relevant person in Court. The issue here is: can this person give evidence in Court and how should a Judge deal with this person?

Peter Bartlett’s slides: http://www.ucc.ie/law/docs/mentalhealth/conferences/10.10-Peter-Bartlett.pdf

Video of Peter Bartlett’s presentation.

[Photos by Casey Photography]

Legal Capacity Conference, UCC, Saturday 9 April 2016

Centre for Criminal Justice & Human Rights, School of Law, University College Cork and
Irish Mental Health Lawyers Association

Legal Capacity Conference 2016

Saturday 9 April 2016
10.00 a.m. to 2.00 p.m.
Brookfield Health Sciences Complex, Room G10
University College Cork

Speakers and chairs include:

• Professor Peter Bartlett, Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, University of Nottingham   
• Ms Louise Loughlin, National Manager, National Advocacy Service for People with Disabilities 
• Dr Alan Corkery, Consultant Psychiatrist in Rehabilitation Psychiatry, North Cork Mental Health Services 
• Professor Mary Donnelly, School of Law, University College Cork  
• Ms Áine Hynes, Partner, St. John Solicitors  

Conference Convenors:
Dr Darius Whelan, School of Law, UCC and Ms Joan Doran, Solicitor, Chair, Irish Mental Health Lawyers Association

- Conference Fee - €80  
- NGOs €30
- Academics - €30
- Devilling barristers and trainee solicitors - €30
- Full-time students – Free
- UCC Staff – No charge

Further Information from Ms Noreen Delea, Events Manager, School of Law, UCC, tel: (021) 4903220, email n.delea@ucc.ie.

Four CPD Hours available

http://imhla.ie/events/2016/3/10/ucc-09april2016

Link to book online:
http://www.uccconferencing.ie/product/legal-capacity-conference-2016/

Capacity Bill and Prime Time programme

Cross-posted from Irish Mental Health Lawyers Association:

Implications of the Assisted Decision-Making (Capacity) Bill 2013 for Vulnerable Persons in Congregated Settings

Submissions by The Irish Mental Health Lawyers Association on the Assisted Decision–Making (Capacity) Bill were made to the Department of Justice on the 30th of October 2013.

The Prime Time programme aired last night on the treatment of vulnerable persons in the care of the HSE at Áras Attracta highlights the urgent need for the Assisted Decision-Making legislation to be implemented as a matter of urgency. We and other organisations have made submissions in relation to appropriate deprivation of liberty safeguards which we consider should have been included in the Bill. An extract from our submissions are set out below.

We consider that it is necessary at this time, to emphasise that there must be appropriate legal mechanisms in place to ensure there is proper oversight of vulnerable adults in care, who cannot speak for themselves and who are entitled to be afforded their basic human rights. Legal mechanisms such as deprivation of liberty safeguards can serve to shine a light on poor practice and unlawful acts. We also consider that it is of the utmost importance that serious consideration is given to the immediate implementation of the Personal Advocacy Service provisions of the Citizens Information Act 2007. 

EXTRACT FROM SUBMISSION

1.    Reviews of detention of persons who lack capacity admitted to residential centres other than approved centres.
The Bill does not fully resolve the issue of people who lack capacity and are admitted to a residential centre on a "voluntary" basis but are de facto detained in the centre.  This is an issue which arises in residential settings such as nursing homes, social care institutions and centres for people with disabilities.  Ireland is not directly tackling the problem of the "Bournewood gap" and ECHR case-law such as H.L. v UK; Stanev v Bulgaria; D.D. v Lithuania and other cases.

Recommendation
The IMHLA recommends that the Bill should state that if a person is being admitted to any residential centre, this can only occur on a voluntary basis, where the person has capacity to consent to such admission and does consent to such admission.  Capacity to consent should be assessed appropriately. 

Áine Hynes, IMHLA                    Phone 01 6779097

10 December 2014

Full IMHLA Submission on Bill