Health Detention

The European Convention on Human Rights is of direct relevance in legislation. Article 3 prohibits torture or inhuman or degrading treatment or punishment in the care and treatment of persons with mental conditions including in medical treatment, treatment which conforms to therapeutic norms is generally acceptable and may include steps taken by force. However, there is an onus on state and authorities to ensure that they respect patients’ rights under the convention and that therapeutic methods must be certainly necessary.

Article 5 of the ECHR protects against arbitrary arrest and detention. Detention of persons of unsound mind may be permissible where strictly necessary. It must be medically established that the person is of unsound mind, that the condition is such that warrants compulsory confinement, and that the confinement process and the detention are undertaken in accordance with procedure.

The persons who are detained have a right under the convention to have the lawfulness of their detention challenged. The persons should have access to court and the opportunity to be heard with some form of representation. There must be special procedural safeguards to protect persons who are incapable of fully acting for themselves.

Article 8 of European convention on human rights deals with the right of persons to their private and family life, home, and correspondence. Restriction of this right may be necessary in a democratic society in the interest of public safety, prevention of disorder or crime, or prevention of health or morals, or the protection of the rights and freedoms of others.

The Mental Health NI order 1986 is the principal legislation dealing with mental health. It deals with admission and detention in hospitals, including compulsory admission, treatment without consent, guardianship, and management of a person’s property and assets. It also deals with mental health issues in the context of criminal proceedings.

It must generally consent to medical treatment. It is presumed that a person has mental capacity to consent. A person may lack mental capacity if he is unable to understand and retain information relating to the decision or appreciate the significance of the decision and make a considered decision based on information.

In the case of persons over 18, they may generally give or withhold consent to medical treatment. Persons between 16 and 17 may consent to surgical, medical, or dental treatment under the Age of Majority NI Act 1969.

In the case of persons under 16, they may or may not have the requisite capacity to consent to such treatment. If a person does not have the requisite capacity, the decision is made by their parents or guardian. If the parents refuse treatment, this may be overridden by a court order under wardship jurisdiction if the court considers the treatment is in the best interest of the person. The welfare of the minor child is the court’s paramount consideration.

Where a child is under 16 or is deemed mentally competent, the court may still override the minor’s decision where it considers particular treatment in the minor’s best interest.

A person with a mental condition may be compulsorily treated and detained under the above legislation. He may be admitted and detained in a hospital for assessment.

An involuntary admission may be initiated by an authorized social worker or a near relative on the recommendation of a medical  practitioner. The medical disorder must be a mental illness, handicap or other disorder, disability of the mind. This does not include mental conditions caused by personality disorders, promiscuity and moral conduct, sexual deviancy, dependence on alcohol or drugs.

A person may only be admitted for assessment if he is suffering from a mental disorder of the nature and degree which wants detention in the hospital for assessment, a failure to detain him would create substantial risk of likelihood of physical harm to him her or others.

Upon admission, the person is examined by a psychiatrist. If admitted, he may be detained for assessment for up to 14 days. He may be treated without consent.

An in-patient who has been admitted voluntarily may be detained if he seeks to leave hospital. A medical practitioner and staff may furnish a report to the authority stating his opinion that the indication to admit the person is necessary. The person may be detained for 48 hours. A mental health nurse can authorize detention for up to six hours for the purpose of assessment.

A person may be detained for more than 14 days his condition meets certain criteria. The person suffers from a mental illness or severe mental impairment of a nature or degree which warrants detention in the hospital for medical treatment a failure to detain the patient would cause a serious substantial likelihood of serious physical harm to him or to another.

A person may be detained for treatment for up to six months in the first instance. Further detention of six months is permissible. After that, the patient may be detained for periods of up to a year.

Once the person has been detained for a year, further detention is authorized by two psychiatrists, one of whom must be independent of the hospital concerned and must not have been involved in the recommendation for the application or the earlier stages of the detention.

A person compulsorily detained may make an application to the Mental Health Review Tribunal to challenge the lawfulness of the detention. The tribunal has three members: a legal member, a medical member, and a member of the public. The boards may meet in the hospital in which the person is detained.

The detained person has the right to representation, including legal representation, in hearings before the tribunal. Legal aid may be available if financial conditions are satisfied.

The tribunal may discharge the patient. It may direct discharge if it is satisfied the person stopped suffering from a mental illness or severe mental impairment of a nature or degree which warrants detention in the hospital for medical treatment and the discharge would not cause a substantial likelihood of physical harm to him or to others.

The tribunal may discharge the patient at a future. It may recommend absence of transfer to another hospital or into the guardianship of another. The burden of proof is on the authorities on each occasion.

Children who require psychiatric treatment may be detained under the Children NI order. A supervision order can be made where a child’s parent is unable to provide the requisite care and attention.

A court may permit psychiatric examination of the child who is the subject of a supervision order if on the evidence of a medical practitioner it is satisfied the child may be suffering from a mental condition and require treatment. A court may authorize medical treatment of a child.

The Health and Personal Social Services NI Order 1972 permits detention of persons who suffer from grave chronic diseases because of who are aged, infirm or physically incapacitated and are living in unsanitary conditions and are unable to develop themselves or receive from persons with whom they reside or persons nearby with proper care and attention.

Proceedings may be initiated by a social worker where he or she believes the removal is necessary in the interests of the person concerned or to prevent from causing injury or nuisance to another.

The social worker must consult with the person’s medical practitioner and medical officer designated by the authorities. A removal application may be made on the certification of the designated medical officer that it is necessary.

The medical health authority may apply to the magistrate’s court on order to remove the person. The nearest relative must be given three days’ notice of the intention to apply for removal. The person to from whose accommodation person concerned will be removed must be notified.

There must be clear evidence and persons concerned relatives and other persons may be legally represented.