Hunger Strikes in Prison: The Legal Issues

 

I contributed a paper on "Hunger Strikes in Prison: the Legal Issues" to a University College Cork conference this week.

The conference was "Terence MacSwiney, Cork Men’s Gaol, and the Political Hunger Strike, 1920-2020" and it was organised by the School of History.

My paper draws on themes discussed in this paper: Gautam Gulati, Darius Whelan, Eimear Spain, David Meagher & Colum Dunne, ‘Hunger Strikes in Prison: a Legal Perspective for Psychiatrists’ (2019) 36 Irish Journal of Psychological Medicine 55.  

My slides for the paper are available here.

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/)

Mental Health and Capacity Law Conference 2018

The Centre for Criminal Justice and Human Rights, School of Law, University College Cork and Irish Mental Health Lawyers Association held their 2018 conference on Mental Health Law and Capacity Law in UCC on Saturday 12 May 2018.

Topics discussed included Recent Developments in Mental Health Law, Dealing with Capacity Issues in Practice, and Children and the Mental Health Act 2001.

Ms Katharine Kelleher, Partner,  Comyn Kelleher Tobin, Solicitors, Cork, spoke on  ‘Section 25  Mental Health Act 2001 in practice from a legal perspective'. Ms Kelleher outlined how children with mental disorders are detained in approved centres by the District Court.  She discussed the evidence required at these court hearings and issues such as what happens when the children reach the age of 18. 

Ms Freda McKittrick, Head of Barnardos Guardian ad Litem Service:   ‘Catching or Falling? The experience of working with children in the Mental Health and Child Care Systems’. 
In this paper, Ms McKittrick outlined what works for children with mental health issues: continuity of service, structural integration of services, and where services are well established and prepared to manage risk.

Dr Anne Jeffers, Consultant Psychiatrist, spoke about the College of Psychiatrists of Ireland REFOCUS Group.  REFOCUS is the Recovery Experience Forum of Carers and Users of Services. REFOCUS is made up of 10 people with experience of mental illness, and ten people who had family members who used the services. The aim of the forum is to actively engage with the College of Psychiatrists, in order to improve the education of psychiatrists, and thereby improve mental health services. 

Dr Lisa Butterly, Historian:   ‘A Jury of My Peers’. 
Dr Butterly said she feels resentful of how poorly Ireland treats people with schizophrenia.  She highlighted the stigma attached to schizophrenia and noted that stigma bypasses self-determination, destroys self-esteem and destroys self-identity. 

Ms Brid Breathnach, Deputy Official Solicitor and Senior Civil Litigation Lawyer, Office of the Official Solicitor, London: ‘Serious medical treatment applications in the Court of Protection in England and Wales - a practitioner's perspective’:
Ms Breathnach said that the use of independent experts was an important safeguard in medical treatment cases. She spoke about recent cases in the Court of Protection, including cases concerning termination of pregnancy and persons in a vegetative state.

Mr Michael Lynn, Senior Counsel:  ‘Recent Developments in Mental Health Law’: 
Mr Lynn discussed important cases such as  A.B. v. Clinical Director of St. Loman’s Hospital,
Court of Appeal, 2018, where the court declared that s.15(3) of the Mental Health Act 2001 is unconstitutional.  The declaration stands suspended until November 2018.

Ms Áine Hynes, Partner, St. John Solicitors, Dublin:  ‘Dealing with Capacity Issues in Practice - Recent Developments’: 
Ms Hynes discussed how the High Court's wardship jurisdiction has become more flexible in recent years.  She also noted that a solicitor has a special duty of care in respect of vulnerable clients, and that a family member cannot give instructions to a solicitor for another family member lacking in mental capacity.

The conveners of the conference were Dr Darius Whelan, School of Law, UCC and Ms Joan Doran, Solicitor, Chairperson of the Irish Mental Health Lawyers Association.

Videos and slides from the conference are available at
https://www.ucc.ie/academic/law/docs/mentalhealth/conferences/

Save the Date: Mental Health and Capacity Law Conference 2018

SAVE THE DATE

Centre for Criminal Justice & Human Rights, School of Law, University College Cork and

Irish Mental Health Lawyers Association 

Annual Conference 2018

Mental Health Law and Capacity Law   

Saturday 12 May 2018 

10.00 a.m. to 2.00 p.m.

Brookfield Health Sciences Complex, University College Cork   

Conference programme will be published shortly, once finalised.

Speakers will include:

• Ms Freda McKittrick, Head of Barnardos Guardian ad Litem Service:   ‘Catching or Falling? The experience of working with children in the Mental Health and Child Care Systems’ 
• Mr Michael Lynn, Senior Counsel:  ‘Recent Developments in Mental Health Law’  
• Dr Lisa Butterly, Historian:   ‘A Jury of My Peers’ 
• Dr Anne Jeffers, Consultant Psychiatrist: ‘Learning from the Patient: Experience with the College of Psychiatrists of Ireland REFOCUS Group’ 
• Ms Katherine Kelleher, Partner,  Comyn Kelleher Tobin, Solicitors, Cork:  'S 25  Mental Health Act 2001 in practice from a legal perspective'  
• Ms Brid Breathnach, Deputy Official Solicitor and Senior Civil Litigation Lawyer, Office of the Official Solicitor, London: ‘Serious medical treatment applications in the Court of Protection in England and Wales - a practitioner's perspective’ 
• Ms Patricia Hickey, General Solicitor for Minors and Wards of Court 
• Ms Áine Hynes, Partner, St. John Solicitors, Dublin:  ‘Dealing with Capacity Issues in Practice - Recent Developments’ 

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

- Conference Fee - €120 
- NGOs €50
- Academics - €50
- Devilling barristers and trainee solicitors - €50
- Students – Free

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

Four CPD Hours – Solicitors and Barristers
College of Psychiatrists of Ireland - 3.5 external CPD Credits.

Book Online 

Twitter hashtag:  #IMHLAUCC 

Events in March 2017 and after

I have updated the listings of events here.

This is the current list:

Wed. 29 March 2017:

Making Economic, Social and Cultural Rights Meaningful, Dublin

http://www.iccl.ie/articles/conference-%E2%80%93-making-economic-social-and-cultural-rights-meaningful.html

Thu. 30-Mar-2017 06:00 PM  

Special Criminal Court for Sierra Leone: jurisprudential developments in the field of women's rights and of children's rights - Lecture - The International Law Association-Irish branch, Dublin 

http://www.ila-hq.org   

Thu. 30 March 2017:

UCC Sports Law Clinic presents: Increased Regulation in Sport, Cork  

https://www.facebook.com/events/375005416218749/ 

30-31 March 2017:

Separated Children in Judicial Proceedings: Recourse to European and International Mechanisms - Blackhall Place, Dublin 

http://www.ucc.ie/en/lawsite/news/fullstory-744862-en.html 

Fri. 31 March 2017:

Understanding the "Right to be Forgotten" - A Workshop, School of Law, University College Cork 

http://www.ucc.ie/en/lawsite/eventsandnews/title-745773-en.html 

Fri. 31 March 2017:

A Tale of Two Cities: the Protection of Fundamental Rights in Strasbourg and Luxembourg, School of Law Annual Distinguished Lecture, NUI Galway 

http://www.nuigalway.ie/business-public-policy-law/school-of-law/news/school-of-law-annual-distinguished-lecture-2017-1.html 

Fri. 31-Mar-2017 09:00 AM  

Spanish and Italian Property Transactions Update - The Post-Recession Position - Law Society Finuas Network Seminar, Dublin - Law Society of Ireland 

https://www.lawsociety.ie/Spanish_Italian_Property_Transactions_Update_The_Post-Recession_Position#.WK1zZ2-LQdU  

Fri. 31 March 2017:

Probate Seminar - Southern Law Association in collaboration with STEP, Cork

http://www.sla.ie/home 

31 March to 2 April:

International Law and the State of Israel: Legitimacy, Exceptionalism and Responsibility, Cork 

https://israelpalestinelaw.com 

Wed. 5 April 2017:

Irish Women Lawyers' Association and Dublin Solicitors Bar Association

present a panel event on the IWD 2017 theme of "Be Bold for Change", Dublin

http://www.iwla.ie/contents/164 

Wed. 5 April 2017:

Spies, Parking Tickets, Illegal Transactions and Insider Dealing: Four Cases which Reshaped Contract Law - Inaugural Lecture by Professor James Devenney, McCann Fitzgerald Chair in  International Law and Business, UCD Sutherland School of Law, Dublin 

http://www.ucd.ie/law/newsandevents/events/inaugurallectureprofessorjamesdevenney/

5-7 April 2017:

Socio-Legal Studies Association conference, Newcastle

http://www.slsa.ac.uk/index.php/annual-conference 

6 April 2017:

Expert Evidence | Recent Developments in Practice & Procedure - DSBA, Dublin

http://www.dsba.ie/seminars/litigation-seminar-6th-april-.2782.html 

6-8 April 2017:

Irish Tax Institute Annual Conference, Galway

https://taxinstitute.ie/SeminarsConferencesDetails.aspx?ID=163 

7-8 April 2017:

The Future is Now: International Conference on eConveyancing and Title Registration, School of Law, NUI Galway 

http://conference.ie/Conferences/index.asp?Conference=495 

Sat. 8 April 2017:

Mental Health Law, Capacity Law & Deprivation of Liberty - School of Law, University College Cork 

http://www.ucc.ie/en/lawsite/news/fullstory-749035-en.html

10-11 April 2017:

Association of Law Teachers' Annual Conference 2017: Foundations and Futures, Portsmouth, England

http://www.lawteacher.ac.uk/events.asp 

20 April 2017:

Mandatory Regulatory CPD Seminar - DSBA, Dublin

http://www.dsba.ie/seminars/mandatory-regulatory-cpd-seminar-april-20th-2017.2783.html 

20-21 April 2017:

Annual Conference of British and Irish Law Education and Technology Association, Portugal 

http://www.bileta.ac.uk/Annual%20Conference/ 

Tue. 25 April 2017 2:00 PM:  

Family Law: A Review of Recent Developments - Legal Seminar - CPD Accredited, Dublin 

http://www.cltireland.ie/course.aspx?crseidcode=1094 

Wed. 26 April 2017:

Brexit Series - Implications for Irish Agriculture, ICEL, Dublin

http://www.icel.ie/Agriculture

Thu. 27 April 2017:

Environmental Principles - Between Flexibility and Opacity - 15th Annual Law and the Environment Conference, University College Cork.

http://www.ucc.ie/en/lawsite/news/fullstory-747233-en.html 

Thu. 27 April 2017:

Perspectives on hidden victims: Findings of three new innovative

studies, School of Law, University of Limerick 

http://ulsites.ul.ie/law/conference-and-masterclass-perspectives-hidden-victims-27th-april-2017

Fri. 28-Apr-2017 09:00 AM 17-Jun-2017 

Law Society Finuas Network Executive Leadership Programme 2017 - Law Society Finuas Network Programme - run over 3 non-adjacent weekends. Discounts available for Finuas members., Law Society, Dublin 

https://www.lawsociety.ie/en-IE/Courses--Events/cpd/Leadership/ 

28-30 April 2017:

New Politics – New Law? - Burren Law School, Co. Clare 

http://www.burrenlawschool.org/law/newpoliticsnewlaw 

3 May 2017:

UCD Human Rights Centre Brexit Seminar at Irish Human Rights and Equality Commission, Greene Street, Dublin 7. Email law.events@ucd.ie for details.

Fri. 05-May-2017 10:00 AM  

Midlands General Practice Update - 

Law Society Skillnet in partnership with the Laois Solicitors’ Association, Carlow Bar Association, Midland Bar Association and Kildare Bar Association - The aim and objectives of the day are to provide an opportunity for practitioners to update their knowledge in areas of law of essential relevance to most in general practice. There will also be an opportunity to network with other practitioners., Heritage Hotel, Portlaoise 

https://www.lawsociety.ie/Midlands_General_Practice_Update_2017#.WNkxBm8rL3g 

Tue. 9 May 2017:

ICEL Data Protection and Privacy Conference, Dublin

http://www.icel.ie/Privacy2017 

Tue. 9 May 2017 01:00 PM:  

Practical Conveyancing: A Review of Recent Developments - Legal Seminar - CPD Accredited., Dublin 

http://www.cltireland.ie/course.aspx?crseidcode=1095 

Thu. 11-May-2017 02:00 PM 12-May-2017 

Essential Practitioner Update Parts I & II 2017 - 

Law Society Skillnet in partnership with the Leitrim, Longford, Roscommon and Sligo Bar Associations - Two day event with three attendance options. The aim and objectives of the event are to provide an opportunity for practitioners to update their knowledge in areas of law of essential relevance to most in general practice., Landmark Hotel, Carrick on Shannon 

https://www.lawsociety.ie/Essential_Practitioner_Update_2017_Parts_I_and_II_Thursday_and_Friday_Leitrim#.WNkxO28rL3g 

17 May 2017:

Brexit - Fishing Rights and redrawing Irish territorial waters - ICEL 

Details to follow at http://www.icel.ie.  

Mon. 22-May-2017 01:00 PM  

Professionalism across the Professions -

Presented by Law Society Professional Training and the 3U Partnership - venue Law Society of Ireland, Blackhall Place - light lunch served at 1.00pm seminar begins at 2.00pm - Law Society of Ireland, Dublin 

https://www.lawsociety.ie/lspt/cpd 

4-7 June 2017:

World Congress on Family Law and Children's Rights - in partnership with School of Law, University College Cork - Venue: Convention Centre, Dublin 

Details at http://www.wcflcr2017.com   

8 to 10 June 2017:

British and Irish Association of Law Librarians Annual Conference, Manchester, England

http://www.biall.org.uk/pages/conferences-biall.html 

12-16 June 2017:

Summer School on Transitional Justice 2017, University of Ulster, Jordanstown 

https://www.ulster.ac.uk/ulster-life/events/transitional-justice-institute/summer-school-on-transitional-justice-2017 

19-23 June 2017:

International Criminal Court Summer School - Irish Centre for Human Rights, NUI Galway

http://www.conference.ie/Conferences/index.asp?Conference=497 

19-23 June 2017:

International Disability Law Summer School, NUI Galway

http://conference.ie/Conferences/index.asp?Conference=507

Fri. 23 June 2017:

ICEL Eversheds Sutherland Procurement Conference 2017, Dublin

http://www.icel.ie/procurement2017 

28 June 2017:

Brexit - WTO option as the basis for UK/EU trade - ICEL

Details to follow at http://www.icel.ie. 

9 August 2017:

The Interface of National Security and Humanitarian Law in Situations of Low-Intensity Armed Conflict / High Intensity Emergency - Transitional Justice Institute, University of Ulster

https://www.ulster.ac.uk/ulster-life/events/transitional-justice-institute/the-interface-of-national-security-and-humanitarian-law 

5-8 September 2017: 

Society of Legal Scholars Annual Conference, Dublin, - UCD Law School 

http://www.slsconference.uk 

Law Society Diploma and Certificate courses:  

Details at http://www.lawsociety.ie/Courses--Events/Public-Diplomas-CMS/

Certificate in Professional Education; Diploma in Alternative Dispute Resolution;
Certificate in Conveyancing; Diploma in Law; Diploma in Education Law;
Diploma in Healthcare Law; Diploma in Judicial Skills and Decision-Making;
Certificate in Pensions Law and Practice; Diploma in Sports Law;
Diploma in Trust & Estate Planning (STEP);
Certificate in Practice Development; Certificate in Decision-Making Capacity and Support
Diploma in Arbitration; Diploma in Finance Law; Diploma in Corporate Law and Governance
Diploma in Mediation; Diploma in Technology Law; Diploma in In-House Practice
Diploma in Litigation Management Skills (new); Certificate in Aviation Leasing and Finance
Certificate in Advanced Negotiation; Certificate in Charity Law, Trusteeship and Governance
Certificate in Employment Law Advocacy Skills; Certificate in Commercial Contracts
Certificate in Company Secretarial Law and Practice; Certificate in Trade Mark Law; Diploma in Aviation Leasing and Finance
Diploma in Commercial Property; Diploma in Employment Law
Certificate in Data Protection Practice; Certificate in Environmental and Planning Law
Certificate in Human Rights Law; Diploma in Legal Decision-Making Skills

Follow Irish Law Events on Twitter - @irishlawevents

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]

Reforming the Mental Health Act 2001

The Report of the Expert Group on the Review of the Mental Health Act 2001 has been published today.  The press release is here.  The full report is available here.  For reaction from Mental Health Reform and Amnesty International Ireland see here. There has been media coverage in the Irish Times, Irish Examiner and on Morning Ireland (interview with Kathleen Lynch). 

As I have meetings and classes today I cannot write a proper blog post yet. 

However, here are some of my tweets.  For more see http://twitter.com/dariuswirl


Darius Whelan retweeted
Katherine Wade @kathwade 
1/1 Guiding principles in Mental Health Act Review are CRC-based with ref to Art 12 and need for consultation and individual care plans.

Darius Whelan @dariuswirl  · 
New mental health leg. to change how people interact with services - @KathleenLynchTD on @morningireland (audio) http://bit.ly/1zNG3uN 

Darius Whelan retweeted
Katherine Wade @kathwade  · Children to have separate guiding principles and presumption of capacity to refuse admission/treatment http://bit.ly/1wJg112  #mentalhealth

Darius Whelan @dariuswirl  · 
Press Release - Minister Lynch publishes Expert Group Review of the Mental Health Act, 2001 #MentalHealth http://bit.ly/1zNzvMx

Darius Whelan @dariuswirl  · 
Group: S.73 should be repealed - (requires permission of the Court before instituting civil proceedings under the Act) #mentalhealth

Darius Whelan @dariuswirl  · 
Group: Introduction of legislation for advance healthcare directives which should apply to mental health equally with general health

Darius Whelan @dariuswirl  · 
Group: Appeal to Circuit Court - onus of proof re mental illness should lie with approved centre rather than person detained

Darius Whelan @dariuswirl  · 
Group: Mechanism to allow information in relation to decisions of Review Boards to be published in anonymised form needed #mentalhealth

Darius Whelan @dariuswirl  · 
Group: Full proposals on ECT. Can continue without consent in limited circumstances #mentalhealth
Embedded image

Darius Whelan @dariuswirl  · 
Group: Children to have a stand-alone section of the Mental Health Act with child appropriate guiding principles #mentalhealth

Darius Whelan @dariuswirl  · 
Group: New intermediate patients - people who may not warrant detention but do not have the capacity to give informed consent - safeguards

Darius Whelan @dariuswirl  · 
Group: Key decisions such as admission of involuntary patients should involve assessment by at least two Mental Health Professionals.

Darius Whelan retweeted
MHReform @MHReform  ·  2h 2 hours ago
Reaction frm @AmnestyIreland & @MHReform to publication of #MentalHealthAct review report: http://bit.ly/1ALBvVT  @morningireland @TodaySOR

Renewal Orders will be for 3 or 6 months only – 12 month orders will no longer be possible. #mentalhealth

Darius Whelan @dariuswirl  · 
Mental Health Tribunals (renamed Mental Health Review Boards) will review detention after 14 days rather than 21 days #mentalhealth

Darius Whelan @dariuswirl  ·  Group proposes ECT without consent only in limited circumstances - and must be approved by a Mental Health Review Board #mentalhealth

Darius Whelan @dariuswirl  · 
Will tweet some points from report of Expert Group on Mental Health Act 2001 (full text received via @juneshannon - thanks!)

Darius Whelan @dariuswirl 
Fast track for laws to ban shock therapy #mentalhealth http:// http://www.irishexaminer.com/ireland/fast-track-for-laws-to-ban-shock-therapy-316085.html#.VPgHNMvZ3b0.twitter …

Mental Health, Criminal Law and Risk of Harm

Website of the Central Mental Hospital

The recent tragic case of stabbings in Cobh, Co. Cork, highlights the treatment of those with mental health issues by the criminal justice system.

This is a complex area and further details may be found in some of the source materials referred to at the end of this blog post.

The Criminal Law (Insanity) Act 2006 introduced major changes in Irish law concerning mental health  and criminal law.  For example, it changed the verdict in some of these cases from 'guilty but insane' to 'not guilty by reason of insanity'.  In order for such a verdict to be reached, the Act requires the following:  

(a) the accused person was suffering at the time from a mental disorder, and

(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—
(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or
(iii) was unable to refrain from committing the act,
the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.

According to media reports in this case, it appears that such a verdict was returned regarding this individual (Mr Michael Greaney) in 2013.

Under the 2006 Act, if such a verdict is returned, the judge does not automatically send the person for mental health treatment.  Instead, the person may be sent to the Central Mental Hospital (CMH) for assessment to see if the person requires treatment.  The emphasis switches at this stage from the person's mental health on the day of the act to their health at the time of assessment.  A person's mental health may fluctuate enormously from month to month (or even from day to day).

Depending on the assessment, the judge can then either order that the person be detained in the Central Mental Hospital or discharged.  In this case, it appears that the judge ordered that the person be discharged, on condition that he live away from the family home.  That condition was later lifted by the court.

If the judge ordered that the person be detained at the Central Mental Hospital, the question of the person's release would be in the hands of the independent Mental Health (Criminal Law) Review Board.  This board has 4 members (listed here) and usually 3 members sit on a hearing to review a particular case. There are approximately 110 hearings per year.  Each case is reviewed every six months and the person will be represented by a solicitor.  A person could also be temporarily released by the CMH under s.14 of the 2006 Act (which does not require approval by the Review Board).

A decision made by a judge to release a person (or to put it another way, not to order that they be treated in the CMH) would be made based on psychiatric evidence of the risk they pose at the time of the assessment.  Assessment of risk is a difficult matter and it is impossible to predict risk of harm with high levels of accuracy.  As a society, it is important that we strike a fair balance between detaining those who may pose a risk to the community and recognising that a person with significant mental health issues may not have been criminally responsible for their actions. The current law attempts to strike that balance as best it can, with advice from medical experts.  This law is in fact of need of reform to strengthen the rights of the individuals concerned, e.g. there is a need for more frequent reviews of detention by the Review Board as the cases of those detained under the civil legislation - the Mental Health Act 2001 - are reviewed more frequently. The law also urgently needs to be changed to remove the "insanity" label from such individuals, a label which is entirely inappropriate and anachronistic. 


Source Materials

Barry Roche - Irish Times coverage  

Muiris Houston in Irish Times

Ralph Rigel - Irish Independent coverage 

Irish Examiner coverage

T.J. McIntyre, Sinead McMullan & Seán Ó Toghda, Criminal Law, 3rd ed. (Dublin: Round Hall, 2012)

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Round Hall, 2009)

Liz Campbell, Shane Kilcommins & Catherine O'Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010)

Darius Whelan, annotations of Criminal Law (Insanity) Act 2006 and 2010, available in Westlaw IE database

Citizens' Information - Criminal Insanity and Mental Health

Website of Mental Health (Criminal Law) Review Board

Full text of Criminal Law Insanity (Act) 2006 as amended by Criminal Law (Insanity) Act 2010

Darius Whelan, slides on Criminal Law (Insanity) legislation

Mental Health Commission, Forensic Mental Health Services for Adults in Ireland, Position Paper, 2011

Mental Health Reform submission

Louise Kennefick blogpost on Human Rights in Ireland

Recent mental health news

Some recent mental health news from my twitter feed:

Maybe a mental health court needed ? > Diversion, which is used in juvenile justice, is needed in District Court http://t.co/spuVB49D4U
— Darius Whelan (@dariuswirl) July 14, 2014

MT @Ukilkelly: Civil & political rights in mental health - Ireland and the Human Rights Committee by @eilionoirflynn http://t.co/KeQli5OTg8

— Darius Whelan (@dariuswirl) July 13, 2014

Young man 'should be in psychiatric hospital, not prison' - court told - Independent.ie http://t.co/SBETr1j8q5 via @sharethis

— Darius Whelan (@dariuswirl) July 10, 2014

TD calls for “fully independent” evaluation of all mental health services in west http://t.co/ePjLmMG5HH via @IrishTimes

— Darius Whelan (@dariuswirl) July 8, 2014

Hospital closures pave way for new mental health premises at Portrane - Independent.ie #mentalhealth http://t.co/W1Ota9XRS8 via @sharethis

— Darius Whelan (@dariuswirl) July 8, 2014

Suspended seven-year term for woman over killing son (8) #diminished #responsbility #mentalhealth http://t.co/WNz0IyFqcT

— Darius Whelan (@dariuswirl) July 8, 2014

Limerick Prison failed to follow its own procedures to watch over a man who took his own life while on suicide watch. http://t.co/kBSW8WJL2j

— Andrew Madden (@andrewmmadden) July 5, 2014

Irish Mental Health Lawyers Association seminar - Dublin, 23 July 2012

Irish Mental Health Lawyers Association 

2012 Seminar

Reforms to the Mental Health Act 2001, update on Capacity legislation and Treatment issues 

Date: Monday 23rd of July 2012

Venue: Law Society, Blackhall Place, Dublin 7

Time: 5.30pm - 8.00pm

Registration and refreshments: 5.30

2 CPD points will be available for attendees

AGENDA

5.30pm  Registration  - Tea/Coffee/sandwiches

6.00pm  Dr. Darius Whelan,
President Irish Mental Health Lawyers Association, Faculty of Law U.C.C.
Daring to Change: The Interim Report of the Steering Group on the Review of the Mental Health Act

6.30pm  Fionn Fitzpatrick.
Presentation on need for legislative reform following her own experiences of the mental health services.

6.45pm  Mark Felton, Solicitor.
Overview of Proposed Capacity Legislation.

7.00pm  Dr. Ciaran Craven B.L.,
Mental Health Act 2001, Capacity and Consent to Treatment cases.

7.40pm  Joan Doran, Solicitor.
Operating the Mental Health Act 2001 Act, a practitioner’s viewpoint.

Seminar Registration Form available here:
http://www.irishlaw.org/events/imhla-july-2012.doc

Provisional registration can be made by email to: joan@joandoran.com


Fee:  Free to members of IMHLA
€65 to non-members


Cancellations must be received in writing. For cancellations received 5 working days or less prior to the event, the attendance fee is non refundable.

It may be necessary, for reasons beyond the control of the conference organisers, to alter the content and timing of the program or the identity of the speakers.

Time to remove mental health disqualification for TDs

Dáil Éireann - CC BY by apanoply

The Guardian reported yesterday that the British government will support a private member's bill by the MP Gavin Barwell which would remove laws which discriminate against people who have mental health problems, including a ban on "mentally disordered persons" from doing jury service, a bar on people who have been sectioned under the Mental Health Act for more than six months from becoming MPs, and another that can have people removed as director of a company "by reason of their mental health".

It is high time that similar restrictions were removed in Ireland.  For example, section 41 of the Electoral Act 1992 states that a "person of unsound mind" may not be a member of the Dáil.
This section has not been repealed.

(By the way, this is also the section which bans undischarged bankrupts or those undergoing a sentence of 6 months or more).

In January 2010, John Moloney TD, then Minister of State for Mental Health and Disability, said that he had written to the Minister for the Environment asking that the relevant restriction on membership of the Dáil be repealed (see article by Mark Tighe in Sunday Times, 31 January 2010).  He also said at the time that he had stress and depression two years previously, forcing him to take four weeks off work.  At the time he referred to s.51 of the Electoral Act 1923, but that had been repealed and replaced in 1992.

In a similar vein, the European Court of Human Rights has overturned an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties in Kiss v Hungary (2010).

In 2011, the Venice Commission reversed an anomaly which allowed countries to exclude people with "genuine mental disabilities" from the ballot box. See more at http://www.savethevote.info, a site set up by the Mental Disability Advocacy Centre in Budapest.

See also June Shannon, 'Fears that Dáil rule fuels mental health stigma', Medical Independent, 2 Jun 2011.

[ Dáil Éireann photo - CC BY from Flickr by apanoply ]