CHAPTER 8 - INFORMED CONSENT TO TREATMENT<

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1 CHAPTER 8 - INFORMED CONSENT TO TREATMENT< Informed consent is not mere acceptance of a medical intervention, but a voluntary and sufficiently informed decision, protecting the right of the patient to be involved in medical decision-making, and assigning associated duties and obligations to health care providers. Its ethical and legal normative justifications stem from the promotion of patient autonomy, self-determination, bodily integrity and well-being. Persons with disabilities often suffer from [the] unjustified perception of being incompetent or dangerous to themselves or others. Such prejudices, coupled with existing laws and practices limiting legal capacity, often compromise their informed consent. Report of the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health UN Doc A/64/272 (10 August 2009) paras 8 and 69 Existing law in Ireland At present Part 4 of the Act (consent to treatment) is significantly out of step with international human rights law and standards. In particular, the need to respect patient autonomy is given insufficient weight. No significance is attached to competence or capacity in the provisions relating to ECT and the administration of medication for more than three months (sections 59 and 60). In addition, no formal weight is given to advance directives or decisions of substitute decision-makers (such as a donee of an Enduring Power of Attorney or a court appointed Personal Guardian). Arguably, the Act in its current form encourages a culture of exclusion and non-participation (by service users) in treatment decisions, which is firmly at odds with the recovery ethos advocated by A Vision for Change, as well as the provisions of international human rights law, including in particular the CRPD. Under section 57 of the Act, an involuntary patient may be treated without consent where in the opinion of the consultant psychiatrist 137

2 responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and, by reason of his or her mental disorder, the patient concerned is incapable of giving consent. This provision (which is broader in scope than the common law doctrine of necessity) creates a situation where the consultant psychiatrist responsible for the care and treatment of a patient is effectively tasked with determining whether a patient has capacity to consent to treatment as well as acting as substitute decisionmaker where the patient lacks capacity. Thus it would seem to place an excessive burden of responsibility on the consultant psychiatrist. It is also questionable whether it adequately protects the rights of the patient. AI s consultations on the Act revealed considerable concerns among some service users and carers about the latitude of the grounds upon which treatment could be imposed without consent under this provision. The European Committee for the Prevention of Torture received complaints that section 57 allows too much discretion to consulting psychiatrists as the legislation does not provide for a clear test of incapability and, secondly, that courts lack the necessary expertise to assess whether persons administered medication without prior consent were indeed incapable of giving that consent. 315 > Furthermore, the provisions of sections > and > of the Act allow a programme of electro-convulsive therapy (ECT) or medication for a period in excess of three months to be administered to an involuntary patient where the patient is unable or unwilling to give consent, thereby overriding competent refusals of treatment. There was a consensus from AI focus groups that the word unwilling should be deleted from this provision 318 >. While section 59 and 60 require that a second consultant psychiatrist approve of the course of treatment, there is no requirement that that he/she be independent of the treating psychiatrist. The European Committee for the Prevention of Torture has recommended that sections 59 and 60 be amended to provide that the second consultant psychiatrist is independent. 319 > Commenting on Australia s approach to informed consent in its mental health laws, Kämpf summarises by saying that [o]verall decisionmaking in relation to involuntary treatment is focused on deciding for the person concerned, rather than with the person, and it seems to rest on the idea that in cases of doubt, coercion is the preferred option. 320 > The 138

3 same criticism can be levelled at the provisions of Part 4 of the Act. The CRPD demands a shift in this approach by seeking to facilitate decisionmaking with the person rather than for the person. 321 > The general rule in law is that a person has the right to consent to or refuse general medical treatment for a physical injury/illness. This is the case regardless of how unwise a decision to refuse treatment may be or the likely repercussions. Treatment cannot be given without consent save where it is an emergency situation and consent cannot be obtained for this reason (because, for example, the patient is unconscious) and the treatment is necessary to save the life or preserve the health of the patient (under the common law doctrine of necessity). 322 > Thus the autonomy and bodily integrity of the individual is paramount. However, when it comes to treatment for a mental disorder, the Act (similar to laws in most other jurisdictions) has openly disregarded the right of persons who experience mental health problems to autonomy, privacy and bodily integrity. While section 4(3) of the Act refers to the rights to dignity, privacy and bodily integrity and requires that due regard be taken of these rights, later provisions of the Act provide for significant interferences with these rights and a paternalistic approach to the best interests of the patient appears to take precedence in practice. 323 > Part 4 of the Act (Consent to Treatment) makes so many inroads into the general rule that a person should have the freedom to consent to treatment as to practically render it meaningless for persons detained under the Act. The MI Principles, upon which Part 4 of the Act appears to have been modelled, have been similarly criticised by numerous commentators, including the former UN Special Rapporteur on the right to health, Paul Hunt, who stated [w]hile some of the Principles recognise important rights and standards, others are controversial and offer inadequate protections, notably on the issue of informed consent. 324 > While the provisions of Part 4 of the Act only apply to involuntary patients in law, in fact they impact upon all persons who come into contact with mental health services, including those who do so on a voluntary basis. 325 > This is because, as has been reported to AI anecdotally, many voluntary patients feel coerced into consenting to treatments, which they do not wish to have because they feel threatened by the possibility 139

4 of being involuntarily detained and treated under the Act and being faced with the prejudice and discrimination that goes hand in hand with that. The power imbalance Throughout AI s consultations on the Act, service users and carers highlighted the sense of a significant power imbalance in the relationship between the psychiatrist and the individual patient. The European Court of Human Rights has acknowledged this position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals and concluded that this calls for increased vigilance in reviewing whether human rights law and standards have been complied with. 326 > Similarly, the UN Special Rapporteur on the right to health in his 2009 Report refers to [t]he power imbalance created by reposing trust and unequal levels of knowledge and experience in the doctorpatient relationship which makes effective communication especially challenging. 327 > Arguably the existing structure of the Act, which places what many believe to be excessive power in the hands of psychiatrists, serves to exacerbate the power imbalance in the case of persons with mental health problems (be they voluntary or involuntary). Research has shown that the psychological effect of the loss of autonomous control and the non-consensual invasion of the body during involuntary treatment is significant. 328 > Coercive treatment can be anti-therapeutic, have an impact on self esteem and lead to apathy, distrust, submissiveness, dehumanisation and frustration. 329 > The CRPD calls for the greatest possible collaboration between the individual and the clinician. 330 > Such an approach, which moves away from paternalism and respects the autonomy and dignity of the individual must underpin and inform the treatment provisions of the Act. [Note: in the UK, the Mental Health Act 1983 (England and Wales) (as amended) has granted powers traditionally reserved to psychiatrists to a range of other clinicians (nurse, clinical psychologist, occupational therapist or social worker), provided they have passed the appropriate accreditation as an approved clinician. 331 > In conducting its review of the Act, the Department should consider ways in which a more multidisciplinary approach to the treatment provisions of the Act could be adopted.] 140

5 RECOMMENDATION: 75. In conducting its review of the Act, the Department should consider ways in which a more multidisciplinary approach to the treatment provisions of the Act could be adopted. Projected cost: costing issues similar to Recommendation 13. It should be a matter of good practice to have multi-disciplinary involvement in care planning. Human rights and involuntary treatment Informed consent in healthcare is a key component of the right to the highest attainable standard of physical and mental health and invokes several human rights that are indivisible, interdependent and interrelated such as the right to autonomy, freedom from discrimination, freedom from inhuman or degrading treatment, and the right to privacy and bodily integrity. 332 > Informed consent has three essential components: firstly consent must be given without coercion, undue influence or misrepresentation (undue influence includes situations where the patient perceives there may be an unpleasant consequence associated with refusal of consent 333 >); secondly consent must be given after the disclosure of the associated benefits, risks and alternatives to the medical procedure in question (i.e. it must be informed); and thirdly to give valid consent the person must have capacity to give consent. The requirement of informed consent presupposes capacity on the part of the patient to give such consent. The presence of a mental health problem does not equate with incapacity to consent to treatment. 334 > Empirical studies have demonstrated that a sizeable majority of people with mental health problems, including persons diagnosed as having schizophrenia and clinical depression, are no less competent to make decisions regarding medical treatment than the general public. 335 > Thus lack of capacity should not be assumed in individuals with a psychiatric diagnosis, even those undergoing inpatient care. This point is reinforced by the CRPD, which requires as a starting point, a presumption of capacity. The recent ECtHR case of Shtukaturov v Russia also confirmed 141

6 that the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. 336 > The right to consent to treatment also includes the right to refuse treatment. 337 > This is the case regardless of the outcome for the patient of such refusal. 338 > In other words, a person has the right to make what is perceived by others as an unwise decision and that decision must be respected. In the context of mental health treatment, it must be stressed (in training and codes of practice) that the fact that a person does not accept a diagnosis or does not have trust/confidence in a specific form of treatment cannot in and of itself be considered evidence of incapacity. Recognising the complex nature of mental health problems A Vision for Change advocates a bio-psychosocial approach to mental health services, which should be holistic, that is, address all aspects of mental health including biological, psychological and social. Similarly, the Mental Health Commission has recognised that there are a multiplicity of perspectives about the causes of mental health problems and the appropriateness/efficacy of different supports and treatments and in its publication on the recovery approach, the Commission states that the recovery approach emphasises the need to create space for other approaches and perspectives, and not just as adjuncts to medication. 339 > Until the adoption of the CRPD, international human rights law and standards stopped short of saying that involuntary treatment of a competent person with a mental health problem was never justified. 340 > However, the general rule was that people who have capacity to make treatment decisions should be allowed to do so, except in very exceptional cases. 341 > So, for example, the CPT Standards state that: Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or other medical intervention. Any derogation from this fundamental principle should be based upon law and only related to clearly and strictly defined exceptional circumstances. (Report of the Committee for the 142

7 Prevention of Torture (Council of Europe 2000) para 41.) Thus it is clear that the blanket provisions in section 59 and 60 of the Act, which allow a psychiatrist (provided s/he has obtained a second opinion from a colleague) to override the competent refusal of an unwilling involuntary patient, is out of step with human rights law and standards, even as they stood before the introduction of the CRPD. A number of human rights are relevant to the right to consent to or refuse treatment, which when read together in light of the CRPD, and in particular its emphasis on non-discrimination, appear to prohibit legal provisions that do not respect the competent refusal of a person to treatment for a mental health problem and adequately protect the rights of persons who lack capacity. In addition, the CRPD requires states to develop a genuine process of supported decision-making to maximise the ability of people with mental health problems to make autonomous treatment decisions. 342 > Before exploring how the existing provisions of the Act require amendment in order to comply with up to date human rights law, the following is a summary of the human rights that are relevant to the subject of informed consent to treatment. The right to privacy, including the right to physical and mental integrity Traditionally, the right to physical and mental integrity was recognised as an aspect of the right to privacy, rather than a standalone right, for example under Article 8 ECHR. Similarly, under Irish law the right to bodily integrity has been recognised as an unenumerated personal right under Article 40.3 of Bunreacht na héireann. 343 > The ECtHR has held that all compulsory medical interventions constitute an interference with the right to physical integrity and must be justified under Article 8(2). 344 > Article 8(2) provides that there shall be no interference with the exercise of [the right to privacy] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. While there has been no ECtHR case specifically on this point, there is a strong argument that involuntary treatment of a person with capacity cannot be justified 143

8 under Article 8(2), save in the most extreme of circumstances and that a law that allows competent refusals of treatment to be overridden in anything but the most exceptional cases, would fall foul of Article 8. For the first time in a binding international treaty, Article 17 CRPD expressly recognises the right to respect for physical and mental integrity on an equal basis with others. This development likely stems from the fact that persons with disabilities, including people with mental health problems, have often suffered violations of that right, on the basis of their disability. Unlike all other provisions of the CRPD, Article 17 comprises a single statement and does not contain any further clarification or elaboration of what that entails in the context of people with disabilities. 345 > In particular, it does not clarify whether involuntary treatment is ever permissible under the Convention. Various amendments were proposed during the negotiation process in an effort to clarify the meaning of Article 17, but they were eventually dropped as agreement could not be reached. 346 > Kämpf argues that Article 17 s silence as to its meaning has the advantage of not providing terminology that can be narrowly interpreted in order to avoid moving away from the current status quo. Instead she contends that it requires States Parties to rethink their involuntary treatment schemes in light of the principles of the CRPD. 347 > When read together with Articles 12 and 25 CRPD (the right to the highest attainable standard of health), the right to respect for physical and mental integrity on the same basis as others implies that a person with a mental health problem should only be subject to treatment without consent if they lack capacity in accordance with Article 12, and the treatment is strictly necessary to protect their health or to prevent harm to them or to others. To accord with Article 12(4) the wishes and feelings of the person deemed to lack capacity should be respected. This would include affording respect to advance statements requesting particular treatment, and recognising the binding nature of valid and applicable advance decisions and lasting powers of attorney refusing treatment for a mental health problems. 348 > It is important to remember that, even where a person lacks capacity and cannot exercise his or her autonomy, s/he retains the right to privacy and physical and mental integrity. 349 > This is particularly relevant in situations where a person who has been found to lack capacity to make a treatment decision actively resists the administration of treatment. This issue is discussed further below in Chapter 9 (seclusion and restraint). 144

9 The right to the highest attainable standard of physical and mental health Article 25 (Right to Health) of the CRPD states unequivocally that health professionals must be required by States to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care. This reinforces the argument that people with disabilities, including people with mental health problems (whether or not they are involuntarily detained), must enjoy the right to consent to or refuse treatment on an equal basis with others. The prohibition of torture and inhuman or degrading treatment or punishment The prohibition of torture and inhuman or degrading treatment or punishment is an absolute right that is recognised in a variety of international human rights instruments, including the ICCPR (Article 7), the ECHR (Article 3) and, most recently, the CRPD (Article 15). In the case of Herczegfalvy v Austria the ECtHR found that, where the individual in question was entirely incapable of deciding for him or herself, a method of treatment which is therapeutically necessary according to established principles of medicine cannot be regarded as inhuman or degrading. 350 > To date there has been no decision under Article 3 ECHR where the individual was treated against his/her competent refusal. However, there is a strong argument that such treatment could amount to inhuman or degrading treatment under Article > Thus, according to Bartlett et al it does seem compelling that involuntarily injecting a chemical designed to alter the individual s mental state over the individual s competent objection would be a sufficiently serious intervention to trigger Article > Tina Minkowitz argues that forced or non-consensual psychiatric interventions amount to torture. 353 > The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, has stated that [w]hereas a fully justified medical treatment may lead to severe pain or suffering, medical treatments of an intrusive and irreversible nature, when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, may constitute torture and ill treatment if enforced or administered without the free and informed consent of the person concerned. 354 > The UN Special Rapporteur on the right to health has said that policies and 145

10 legislation sanctioning non-consensual treatments lacking therapeutic purpose or aimed at correcting or alleviating a disability, including sterilisations, abortions, electro-convulsive therapy and unnecessarily invasive psychotropic therapy, violate the right to physical and mental integrity and may constitute torture and ill treatment. 355 > Capacity as the gateway for treatment without consent It is clear from the foregoing that the human rights relevant to the right to consent to or refuse treatment, when read together in light of the CRPD, and in particular its emphasis on non-discrimination, appear to prohibit legal provisions which do not respect the competent refusal of a person to treatment for a mental health problem and adequately protect the rights of persons who lack capacity. Not even the criminal law permits compulsory treatment without consent of a person with capacity to consent or refuse. 356 > The use of capacity as the gateway or threshold for treatment without consent has the advantage of being non-discriminatory; as such an approach would see the same rules applying for treatment for physical or mental health problems. 357 > Case study: Ontario 358 > While many jurisdictions continue to allow competent refusal to be overridden in certain circumstances in the mental health context, there are jurisdictions where the treatment of competent patients is never permitted without informed consent. One such jurisdiction is Ontario, Canada, where treatment decisions are completely separated from decisions to detain. A person who has decision-making capacity can make decisions regarding treatment for mental health problems regardless of whether s/he is in a psychiatric hospital (voluntarily or involuntarily) or in the community. 359 > Thus, there is no distinction between treatment for mental and physical illness or disorders. According to Bartlett, this has not caused major difficulties in practice. While in theory it is possible that people with capacity will refuse all treatment and end up being detained for long periods, in practice this has happened rarely. Undoubtedly, this is the most robust and preferential approach from a human rights perspective, particularly when viewed in light of the CRPD. 360 > 146

11 RECOMMENDATION: 76. Section 57 of the Act should be amended to provide that the free and informed consent of a patient shall be required in all circumstances before treatment can be administered unless (i) the person lacks decision-making capacity and (ii) the emergency provisions of the proposed new section 57A (emergency treatment), the provisions of section 58 (psycho-surgery), section 59 (ECT) or, as the case may be, section 60 (medication) have been complied with in full. Projected cost: as 77 below and 14 above, the combined effect of this and recommendations 77 and 78 below are to increase the numbers of people who will have the right to a second opinion, with ensuing costs, and the right to independent review by tribunal, with ensuing costs. Voluntary patients and Part 4 of the Act At present we have a parallel system, whereby involuntary patients have certain protections, albeit insufficient, under Part 4 of the Act (such as the right to a second opinion), whereas no safeguards apply to voluntary patients, even if they lack capacity. 361 > This system has been criticised by a number of expert legal commentators 362 > and observed by the CPT. 363 > In addition, it would appear to be out of step with the requirements of the ECHR, which Professor Phil Fennell has summarised as follows: The ECtHR emphatically rejected the argument that a compliant incapacitated patient should be treated on the same basis as a capable consenting patient in relation to deprivations of liberty under Article 5 of the European Convention (i.e. that no formal procedure was required where a person did not object to admission). The same principle must apply to interferences with physical integrity. It is too important to be lost simply because a person has given themselves up to the intervention, especially if he or she lacks the capacity to consent to treatment. 364 > 147

12 Thus, the treatment provisions in Part 4 of the Act should apply to both involuntary and voluntary patients. As a patient should not be administered any form of treatment against their capable wishes (whether they are voluntarily or involuntarily admitted to an approved centre), it makes sense that the same safeguards would apply to both categories of patients. This is all the more relevant when one considers, for example, that the majority of inpatients who were administered ECT in 2008 were voluntary patients (over 80 per cent in each quarter). 365 > RECOMMENDATION: 77. The provisions of the Act relating to the administration of treatment should apply equally to voluntary and involuntary patients. Projected cost: this would depend on knowing the numbers of voluntary incapacitated patients there are who might require treatment without their consent. See Recommendation 14 above.* While AI recognises that there may be cost implications to this recommendation, this is an essential amendment to the Act in order to ensure that the rights of all patients are adequately safeguarded against potential grave violations of their rights. Involuntary treatment in an emergency situation The WHO recognises that in emergencies (for example, where a person is actively suicidal or in the case of an acutely disturbed patient who is violent or aggressive), it may not be feasible or reasonable to comply with the procedures for involuntary treatment set out in law (see recommendations further below). For this reason the law should provide for such emergency treatment with sufficient safeguards. 366 > However it is important that such provisions only be invoked in genuine emergencies and are not used to circumvent other substantive protections set out in the Act. Thus, any such legal provision must only be invoked where the person is reasonably believed to lack the capacity to make the treatment decision at hand and where the treatment is necessary in order to safeguard the life or preserve the health of the patient. Essentially, what is called for is a codification of the common law doctrine of necessity. 148

13 In addition, the law should expressly provide that emergency provisions should only be invoked where compliance with the substantive procedures would cause such delay as would lead to harm to the person. 367 > Emergency treatment should not be prolonged for longer than necessary. The WHO cites with approval a maximum time frame of 72 hours, which should give sufficient time for compliance with the substantive procedures. 368 > It should be noted that the WHO explicitly states that emergency treatment should not include ECT, depot neuroleptics 369 > or irreversible treatments such as psycho-surgery. 370 > Accordingly, these exceptions should be expressly set out in the law. RECOMMENDATION: 78. A new section (57A) should be inserted into the Act to deal with emergency situations (which should be narrowly defined in line with the common law doctrine of necessity). This should provide for the administration of treatment (with the exception of psycho-surgery, ECT and depot neuroleptics) for a short period of time to a person who is reasonably believed to lack capacity, where compliance with the substantive procedures in sections 60 would cause such delay as would lead to harm to the person. Such emergency treatment should be restricted to a maximum period after which it may only be continued after the provisions of section 60 have been complied with. The Department should consult with service users and healthcare professionals to ascertain what would be a reasonable maximum time period for the administration of emergency treatment. In any event this should be no longer than the 72 hours recommended by the WHO. Projected cost: none 149

14 Procedural safeguards around treatment The requirement that any purportedly justifiable interferences with Article 8 ECHR (right to privacy) be in accordance with the law requires not only that they be set out in law (such as under the Act), but also that sufficient safeguards exist to ensure effective control of those interfering with the individual s rights. 371 > Council of Europe Recommendation (2004)10 elaborates on what these safeguards should entail, including that persons subject to involuntary treatment can effectively exercise the right to appeal against an involuntary treatment decision (Article 25). The WHO in its guidance has called for similar safeguards in mental health laws relating to treatment including that a second, independent, accredited mental health practitioner confirms the treatment plan and, preferably, that the treatment plan be sanctioned by an independent authority, which should examine, not only whether the proposed treatment is in the patient s best interests, but also that the patient him/herself does indeed lack the capacity to consent to or refuse the treatment. 372 > The treatment should have a therapeutic aim and be likely to entail a real clinical benefit and should not be given for longer than is necessary. In addition, it should be systematically reviewed by the treating clinician and periodically by an independent review body. 373 > One of the key aims of the treatment must be to restore the patient s capacity and when this occurs involuntary treatment should be stopped. 374 > In addition to providing patients and their families with information of their rights and involving them in treatment planning even where they lack capacity, patients and their families or personal representatives must have a right to appeal to a review body, tribunal and/ or court against the imposition of involuntary treatment. 375 > Similar to the way that Article 5 ECHR (right to liberty) and corresponding articles in other conventions require that procedural safeguards be put in place to prevent arbitrary deprivations of liberty, Article 6 ECHR (right to a fair trial) provides a right to certain procedural safeguards in the context of determinations of capacity or incapacity and treatment decisions. 376 > This includes primarily the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (Article 6 ECHR). 377 > Mary Donnelly points to three main goals that should underpin reviews of treatment decisions, all of which have a basis in the international (and in some cases the national) human rights framework. These goals are: 150

15 to protect individuals against violations of their human rights. This includes the right to be free from inhuman or degrading treatment, and the rights to privacy, bodily integrity and autonomy; to ensure the delivery of the most appropriate treatment. This should involve an assessment of whether there are other more appropriate treatment options available and how these could be delivered it has a medical or therapeutic aspect, but also involves social and psychological factors. This goal is in line with the right to the highest attainable standard of physical and mental health (Article 12 ICESCR and Article 25 CRPD) and the right to rehabilitation (Article 26 CRPD); to ensure respect for the values of dignity, fairness and participation in the decision-making process. This accords to the right to fair procedures set out in Article 6 ECHR and Article 12(3) (legal capacity) and 13 (access to justice) CRPD. In addition, a process that is based on values of fairness and participation not only has a better chance of delivering the best decision for the patient, but is also leads to higher levels of compliance with treatment and better therapeutic outcomes. 378 > There are three common mechanisms whereby treatment reviews can take place: judicial reviews, tribunal reviews and reviews by fellow professionals. Mary Donnelly provides a detailed critique of these three approaches based on the experience in England, Victoria (Australia) and Ireland, and concludes that while none of the existing models delivers a satisfactory level of protection, tribunal reviews have the greatest potential to provide a package which protects substantive rights, ensures the most appropriate treatment and provides an accessible, fair and participative process. 379 > In comparing the Irish approach to the approach in England and Wales, Donnelly unambiguously concludes that the Irish model is clearly inferior to that used in England and Wales. 380 > For instance, the Irish approach does not require that the second opinion psychiatrist be appointed from an independent panel with the result that [t]here is nothing on the face of the Act to prevent a consultant psychiatrist from referring the matter to a second consultant whom he or she knows will agree with the treatment decision made. Donnelly makes the valid point that [e]ven presuming that a psychiatrist would not 151

16 deliberately choose the second psychiatrist on this basis, it is a natural aspect of professional relationships that professionals will often be drawn to colleagues who take a similar approach to their own. 381 > Nor does it place any obligation on the second opinion psychiatrist to consult with other members of the multi-disciplinary team or record reasons for his/her opinion and there is limited scope for auditing such treatment decisions (because of the lack of data required to be captured by the MHC and Inspectorate). Despite the fact that the provisions in England and Wales which provide for reviews of treatment decisions by fellow professionals are obviously an improvement on those in Ireland, Donnelly concludes that a tribunal review would be superior. This position is reinforced by the fact that questions have also been raised about the effectiveness of the second opinion system in England and Wales. Commenting on the notably low levels of disagreement between first and second opinion doctors in England and Wales, Phil Fennell queries the effectiveness of second opinions as safeguards for patient s rights: Safeguard for whom? Is the second opinion system more geared to providing a safeguard for the patient s right to physical integrity, or is the safeguard more oriented towards clinicians desire to acquire a flak jacket against potential legal liability? 382 > The Act already provides a role for tribunals in reviewing decisions to administer psychotherapy (section 58) and it would seem to make sense to also give the tribunals a role in reviewing other treatment decisions. RECOMMENDATION: 79. Mental health tribunals should be given a role in reviewing treatment decisions (in addition to their existing role regarding psycho-surgery) as is set out in greater detail in the following recommendations. Specific safeguards for the administration of psycho-surgery It must be acknowledged that the existing provisions of the Act in relation to psycho-surgery (section 58) are far less problematic from a 152

17 human rights perspective than the provisions relating to ECT (section 59) and medication for periods of three months or more (section 60), in that they do not allow psycho-surgery to be administered against the competent refusal of a patient. Nevertheless, section 58 does not spell out in detail the comprehensive safeguards required by the human rights framework as discussed above. It is AI s understanding that because of major questions as to its efficacy as a form of treatment for mental health problems, psycho-surgery is no longer performed in Ireland. Accordingly the Government is left with two options as to how to deal with psychosurgery under Irish law; either to prohibit the use of psycho-surgery altogether or to make it subject to the same procedural safeguards as are recommended in relation to ECT below. RECOMMENDATION: 80. The Act should either (a) prohibit the use of psycho-surgery altogether (to reflect current practice whereby psycho-surgery is not performed) or (b) make the psycho-surgery subject to the same procedural safeguards as are recommended in relation to ECT (see below). Specific safeguards for the administration of ECT As was summarised above, section 59 of the Act allows a programme of electro-convulsive therapy (ECT) to be administered to an involuntary patient where the patient is unable or unwilling to give consent, thereby overriding competent refusals of treatment. While section 59 requires that a second consultant psychiatrist approve of the course of treatment, there is no requirement that that psychiatrist be independent. As regards the reference to 'unwilling' in section 59 of the Act, the Department s 2007 Report on the Act states: Submissions suggest that the reference to 'unwilling' be deleted from this section. Where capacity exists any refusal to accept treatment should be respected and this right protected by law. The Minister accepts in principle this suggestion but would wish to consider the implications in the context of any new capacity legislation. 153

18 It is clear from the above discussion that the current wording of section 59 does not comply with the requirements of international human rights law. The MI Principles provide useful guidance as to the procedural safeguards that should be put in place to ensure that the rights of persons with mental health problems are adequately protected. Accordingly, MI Principle 11(14) states that intrusive and irreversible treatments for mental health problems may be administered only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient. The importance of verifying that a person has given free and informed consent should not be underestimated. A study commissioned by the UK Department of Health and conducted by the Service User Research Enterprise of the Institute of Psychiatry at King s College London concluded that approximately 50 per cent of consumers who participated in that research felt they were inadequately informed about ECT and a significant number of those who signed consent forms did not feel that they freely consented to ECT. 383 > In addition, there should be a right to appeal (exercisable either by the patient, or in some cases a representative or next of kin) to the Circuit Court against any decision by the tribunal to allow a programme of ECT to be administered to a person who lacks capacity (MI Principle 11(16)). There should also be a provision stating that for the avoidance of doubt, if a person regains capacity at any stage, the programme of ECT must be discontinued unless the person gives his or her free and informed consent to its continuation. Accordingly, the following detailed recommendations are made with respect to ECT. These provisions should apply to all patients who are to be administered ECT, whether as inpatients or out-patients. RECOMMENDATIONS: 81. Where a person consents in writing to a programme of ECT, the mental health tribunal should review: whether the person has the necessary functional capacity to make the treatment 154

19 decision. In reviewing the patient s functional capacity, the tribunal should be required to take into account the views of at least two members of the multi-disciplinary care team 384 > in addition to the view of the treating consultant psychiatrist and the independent consultant psychiatrist 385 >; whether the person has given free and informed consent to the programme of ECT; and A. whether the treatment is necessary as a last resort and constitutes the least intrusive treatment or therapy appropriate to the patient s health needs (taking into account, among other things the view of the independent consultant psychiatrist). 82. Where it is reasonably believed that a person lacks capacity to consent to a programme of ECT: A. The treating consultant psychiatrist and a second independent consultant psychiatrist should certify that (i) they believe the patient lacks capacity to consent to or refuse ECT and (ii) the treatment is necessary as a last resort and constitutes the least intrusive treatment or therapy appropriate to the patient s health needs. The second independent consultant psychiatrist should be required to consult with at least two persons from different disciplines who have been involved with the patient s treatment (in addition to the treating consultant 155

20 psychiatrist). S/he should also be required to specify reasons for his/her opinion and inform the MHC of same. In addition, the mental health tribunal should review: B. The patient s functional capacity. In reviewing the patient s functional capacity, the tribunal should be required to take into account the views of at least two members of the multi-disciplinary care team in addition to the view of the treating consultant psychiatrist and the independent consultant psychiatrist. If s/he is found to have capacity, then treatment should only be administered with free and informed consent. The guiding principles of the new capacity legislation, including especially that a person should not be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success (i.e. supported decision-making) are particularly relevant here 386 >; and C. The necessity of the treatment as a treatment of last resort, having regard to the opinion of the independent psychiatrist and members of the multi-disciplinary team and such other evidence or reports as are produced by the patient/his or her representative or requested by the tribunal as it sees fit. 83. Even where the above criteria are satisfied the 156

21 tribunal may not permit the administration of a programme of ECT to a person if to do so would conflict with either: A. A valid advance directive of the person as regards ECT; or B. A valid substitute refusal by a personal guardian or a donee of an enduring power of attorney or substitute duly appointed under the capacity legislation. 387 > Projected cost: none 84. The Act should expressly set out a right to appeal (exercisable either by the patient, or a person acting on his/her behalf) to the Circuit Court against any decision by the tribunal to allow a programme of ECT to be administered to a person who lacks capacity. Projected cost: it is difficult to quantify since the number of people likely to appeal to the Circuit Court is unpredictable. As with Recommendation 65 above, costs for the appeal would either be borne by the appellant (patient) or under the Mental Health Legal Aid Scheme, where the MHC has provided written authorisation for legal aid to institute proceedings. 85. The Act should state that, for the avoidance of doubt, if a person regains capacity at any stage, the programme of ECT must be discontinued unless the person gives his or her free and informed consent to its continuation. Projected cost: none Recommendations relating to administration of 157

22 medication While public debate over the past year or so has been focused on ECT, there are also serious human rights concerns with section 60 of the Act, which relates to the administration of medication to an involuntary patient for a period in excess of three months. This provision is framed in identical language to section 59. At present the provisions of section 60 of the Act allow medication for a period in excess of three months to be administered to an involuntary patient where the patient is unable or unwilling to give consent. Like section 59, while section 60 requires that a second consultant psychiatrist approve the course of treatment, there is no requirement that the psychiatrist be independent, rendering the practical value of this safeguard highly questionable. Referring to section 60, the 2007 Report of the Department of Health and Children s review of the Act stated at page 28: Again, submissions recommend that the reference to 'unwilling' be deleted from this section. Where capacity exists any refusal to accept treatment should be respected and this right protected by law. The Minister accepts the principle and is of the view that this requires to be considered in the context of any new capacity legislation. Not only does section 60 (like section 59) allow an unjustified interference with the right of a competent patient to refuse treatment, but it also creates the anomalous situation whereby a competent person may not be given medication without informed consent for an initial period of up to three months (as section 57 applies) 388 > but thereafter may be given medication against their competent refusal. 389 > It would appear that this anomaly arose as a result of an error in drafting rather than a policy decision and it should be amended accordingly. 390 > 158

23 RECOMMENDATIONS: 86. General requirements for the administration of medication Medication should only be administered with the free and informed consent of the patient or, where the person lacks the capacity to consent, 391 > when the following safeguards have been fulfilled (which should be expressly set out in the Act): The treatment must be necessary and constitute the least intrusive treatment or therapy appropriate to the patient s health needs; and Both of these criteria should be certified by the treating consultant psychiatrist and confirmed by a second independent consultant psychiatrist. Projected cost: There could be additional costs in relation to the cost per assessment of the second independent consultant psychiatrist. The cost per second opinion is set out in Recommendation Right to apply for tribunal review of proposal to administer medication Upon an application by a patient (or someone acting on the patient s behalf) who objects to the proposed administration of medication, 392 > the tribunal should review: A. The patient s functional capacity (to be defined in accordance with the new capacity 159

24 legislation) in the same manner as is required in the case of reviews relating to ECT; and B. The necessity of the treatment, having regard to the opinion of the treating psychiatrist, the independent psychiatrist and members of the multi-disciplinary team and such other evidence or reports as are produced by the patient/his or her representative or requested by the tribunal as it sees fit. Even where the above criteria are satisfied the tribunal shall not permit the administration of the proposed medication to a person if to do so would conflict with either: C. A valid advance directive of the person as regards that medication; or D. A valid substitute refusal by a personal guardian or a donee of an enduring power of attorney or other substitute decision-maker duly appointed under the capacity legislation. Projected cost: there are likely to be some additional costs to this recommendation based on the number of additional tribunals to review medication. The cost depends on the number of individuals who challenge their treatment. Some of these tribunals could be combined with the tribunals reviewing involuntary detention, so the cost would not be entirely additional. 88. Automatic periodic reviews of ongoing administration of medication by tribunals In addition, the tribunal should be required 160

25 automatically to review the long-term administration of medication at set intervals (the three-month period foreseen by the existing section 60 could be used here). Such review should also cover both (i) the capacity of the patient to consent to or refuse treatment (and whether the patient has given informed consent, where relevant) and (ii) the necessity and appropriateness of the treatment following the same format as a review of medication requested by a patient. Projected cost: there are likely to be some additional costs to this recommendation based on the number of additional tribunals to review medication. The cost depends on the number of individuals who challenge their treatment. Some of these tribunals could be combined with the tribunals reviewing involuntary detention, so the cost would not be entirely additional. Other provisions relating to the administration of medication 89. There should be a right to appeal (exercisable either by the patient, or in some cases a representative or next of kin) to the Circuit Court against any decision by the tribunal to allow a programme of medication to be administered to a person who lacks capacity. Projected cost: costs of an appeal would either be borne by the individual or by the Mental Health Legal Aid Scheme, where the MHC has provided written authorisation for legal aid to institute proceedings. 90. The Act should state that, for the avoidance of doubt, if a person regains capacity at any stage, the programme of medication must be discontinued unless the person gives his or her free and 161