I thank the committee for inviting us. The commission acknowledges the recent developments, even since we wrote our extended report on the mental capacity Bill when it was published in 2008. Since then, there have been significant interpretative changes with regard to the UN Convention on the Rights of Persons with Disabilities. There is a need to focus on assisted or supported decision making as a key element in the proposed Bill. In the particular area of mental health law, we need to be aware of the importance of supported decision making in underpinning the mental health policy document A Vision for Change and the recovery ethos in mental health care, which focuses on the potential of the person to reach his or her maximum ability in controlling his or her own life. The recovery ethos is a fundamental philosophy underpinning mental health care, as is the move towards community care. The idea of support and assistance in making one's own decisions is critically important.
To focus particularly on our remit here and what was contained in the 2008 Bill, there is, for example, no reference at all to mental health law and the interface with mental health legislation. It is a difficult area, as has been proven in the UK. We are very aware of the problem in the practice of mental health care, and I will outline for the committee the number of people, as far as we can ascertain, who might be affected by capacity law. The total number of admissions, according to our most recent figures, was 19,000 in 2010. This includes 2,000 people who were compulsorily admitted and 17,500 voluntary admissions. There is no Irish research on this area which allows us to extrapolate how many of those 17,000 might be affected in terms of having reduced capacity, either permanently or for a short period due to illness. I hesitate to suggest that we should follow these numbers, but they are the best we could do. We have to bear in mind that these pieces of research did not take account of the complexities of individual situations or the level of support involved in finding these people to be incapacitated. Nevertheless, the commission picked what we felt were the two most helpful studies. The number of people who are voluntarily admitted to mental health care and who lack capacity is between 5,000 and 6,000 annually. That is an approximation and members can see more detail in our submission.
Specifically, the concerns of the commission are to do with wards of court and other categories under the current law. We hope the wardship system will change with the incorporation of new legislation. We are expecting that to happen. The number of wards of court in mental health care is currently about 80 inpatients. The shocking thing is that these people are effectively detained, because they are not free to leave, but they have absolutely no safeguards under the present law. For example, they do not have access to a review of detention or a second opinion on their consent to treatment. They are a category completely outside the legislative structure because of a clause in the 2001 Act which retains jurisdiction for the High Court for any decisions to do with wards of court. Unless the High Court implements a similar system for detained patients, there is complete inequality here and potentially a breach of human rights law.
I will not go into everything we have suggested in our review of the Mental Health Act. We said, in response to what was in the 2008 Bill, that there should be a dual approach under one of the headings. There was a suggestion in the published scheme - I am not sure whether it was revised later - that there be a dual approach to wards of court, which would mean that new wards would be able to avail of the provisions of the Act while old wards might wait for a period of time. I cannot give the exact detail now but I know there was going to be an inequity in the system.
I will move on and look at the various categories under the Mental Health Act where issues of capacity arise. First, there is the issue of involuntary patients. Some involuntary patients are capable while others are incapable, but in either case their capacity can be overridden in terms of consent to treatment. The Act does refer to capable patients who are detained, and capacity is to some extent assessed, but we would argue that the provision is not strong enough. An important point was raised in a case in the European Court of Human Rights, Shtukaturov v. Russia, which we need to take into consideration, namely, that mental disorder alone cannot be the sole reason for removal of capacity.
By virtue of having a mental disorder, we cannot remove that person's legal capacity. That is a very important statement underpinning all of this. We have people who are involuntarily detained, whose illness is unrelated to the mental disorder and they may not be capable. The capacity law will have to apply there. If they have a physical illness, like a broken leg, it is clearly not related to their mental disorder.
We recently made submissions in the review of the Mental Health Act 2001 and stated that all sections of the Act which refer to consent should be reviewed in line with mental capacity law and with the UN Convention on the Rights of Persons with Disabilities. We have emphasised that there needs to be a synergy between these laws, or else there will be enormous fragmentation.
There are 1,900 to 2,000 involuntary admissions made every year, which represents 10% of all admissions. There is obviously a much larger figure for voluntary admissions. Let us say that someone has been discharged from being involuntary. The person has been detained and it has been established that he or she no longer needs to be detained, but may remain in mental health care. That person then becomes a voluntary patient. There is no consideration of his or her capacity in that situation. There is a real concern about people in that category. It has been raised in the courts, but because of our paternalistic approach to best interests and to the definition of voluntary, which does not really differentiate from people who are de facto detained, the issue has gone unchanged.
Voluntary admission and treatment is a very obvious category. We can think of a person who is compliant but who is incapacitated. It could be somebody who has dementia. It could be for any reason and we could be talking about any kind of person. Hospitals are powerful places, so compliance is very easy to obtain from people. We need very clear protections in this area.
The UK has brought in very extensive, turgid provisions on the deprivation of liberty safeguards. It is extremely legalistic and is a massive process. People are now beginning to wonder whether it is appropriate at all. We must address this because we have people who are called voluntary who might be subject to a more restrictive form of care and treatment than a truly voluntary person or a person who is just voluntary and lacking capacity. Someone who is actually deprived of liberty may be subject to a regime of medication, does not feel free to leave and objectively is in a place for a not inconsiderable period of time. Such a person is deprived of liberty. We need to look at that particularly category because it arose in the European Court of Human Rights in the HL case, which was referred to earlier as Bournewood. The court stated that where a level is imposed that amounts to a deprivation of liberty, a procedure must be put in place under a state's capacity law.
There is much concern about the age of consent. It is 18 under the Mental Health Act 2001 and 16 for general consent to medical treatment. The Law Reform Commission has produced a very good document on this that provides a comprehensive examination, and it has dealt with mental health care as well. That needs to be considered.
The next points are in respect of the guiding principles. When we wrote our first report, we welcomed the obligation in the proposed scheme to have regard to the principles underpinning the proposed law. That is still our position and it would apply to formal and informal decision making. We have concerns with informal decision making, because it is so vast. Reference was made in head 1(c) to assisting people to make decisions. All efforts reasonably possible must be made to ensure that people can make their own decisions. People spoke already about the statistics for the future with 100,000 people having capacity issues in 10 years or so. We really need to consider the sustainability of whatever approach we take. As a starting point, supporting people to enable them make their own decisions is clearly the most sustainable approach. The person is enabled to be independent in his or her decision making, so the State does not have to take that on board. We need to highlight that, and it would be in keeping with Article 12 of the UN Convention on the Rights of Persons with Disabilities. It would also be in keeping with the principle of the least restrictive alternative, which is a very important human rights principle when we intervene in people's lives.
Support is not a one-off situation. It is a process or continuum to enable and build decision-making capacity. An important aspect of policy for us in this State is that we develop a supportive decision-making system. The Council of Europe has said that states need to look at any private arrangements that people can make themselves for their own futures. That statement was made as far back as 1999 in one of the early documents on capacity.
Best interests under the guiding principles is a really contentious issue. The commission is very concerned because the Mental Health Act 2001 has been interpreted by the courts in a very paternalistic way in some cases. There may have been concerns that people's rights were overridden in pursuit of a best interests approach. The UN Convention on the Rights of Persons with Disabilities refers to the philosophical shift we need to make away from paternalism towards recognising the will and preferences of the person. Senator Bacik mentioned that earlier. I only recently realised that many decisions in our courts refer to preferences of people, so it is not outside our realm of language. In our review of the Act, we have stated that best interests have to be defined in keeping with the UN convention, however that is done.
The commission believes that advocacy is another form of support that should be introduced, not just because it is done in the UK, but because we have a wide variety of advocacy. We can have volunteers. We have a very large number of people who have recently retired or who are about to retire from practice. These people are able and capable. We have people who could be advocates. We do not always have to see it in terms of cost and State resources, so we should be pushing the issue of advocacy.
One of the Senators asked earlier about advanced directives. We already have enduring powers of attorney under our law. The scheme of the Bill proposes to advance that in a better way, and that is a form of advanced directive. It is already in our law. Advanced directives are being used widely. They are a natural type of support that we can offer to people, but not everybody takes them up. It is all about education and informing people about the benefits of it.
The last two points I wish to make are in respect of the decision-making structure. This is critical. The authority that will rule here in Ireland is proposed as a public guardian. Whether we call it public guardian or not - perhaps guardian has other kinds of overtones - we need an oversight body. There is no question about that. Whether the decision making structure should rest with the courts is a matter we need to take seriously. We need to think about issues of flexibility and sustainability. In England, the Court of Protection is not able to deal with all the difficulties it has encountered, so it has to be accessible as well. Flexibility, accessibility and sustainability are the three elements I would apply to whatever decision-making structure we have. Right now in Ireland we already have the mental health tribunals, which are flexible, accessible and can be responsive. That is not to say that is the system, but within it we could incorporate all of the issues we have spoken about. The circle of support around the person could be presented before such a body, which would enable the person and so on. When we move from what we are comfortable with, such as talking about the courts system, we also have other systems that might be more responsive to individual needs.
Reviews of the Mental Health Act and the Criminal Law (Insanity) Act are currently taking place. We are now producing a new capacity law. It is the first time we have ever had an opportunity to look at three laws that intersect significantly. If Government Departments were to pull together there could be a tremendous forward-looking approach.
