1. Capacity & Consent: Mental Health & Vulnerable Adults
Consent & Capacity In Healthcare Conference 2015
Capacity & Consent: Mental Health & Vulnerable Adults
Dr Kevin Power Partner
Mason Hayes & Curran
02 December, 2015

2. Topics Capacity and Consent in Mental Health
Vulnerable Adults: Case Study
The incapacitated voluntary patient
Detention outside of the MHA

3. Vulnerable Adult: Case Study
55 year old patient in obstetric hospital; early onset Alzheimer’s
Severe procidentia (uterine prolapse)
Not life threatening but significant associated morbidity
Only viable treatment is vaginal hysterectomy – major operation
No decision making capacity and not capable of improvement or amelioration (with or without assistance)
No other legal mechanisms applicable
Patient compliant & agreeable; family supportive

4. Can the Hospital perform the operation?
Dilemma
No other legal mechanisms applicable; Ward of Court impractical
Elective non-emergency situation
Doctrine of necessity?
Where consent cannot be obtained, doctors should provide treatment which is in the patient’s best interests and is immediately necessary to save life or avoid significant deterioration in health.
Scope uncertain; emergencies only
Defence to a claim of trespass vs. authority to provide treatment/optimal care
Role of a doctor vs. role of a patient
National Consent Policy
“No other person such as a family member, friend or carer and no organisation can give or refuse consent on behalf of an adult service user who lacks capacity to consent unless they have specific legal authority to do so”

5. What happened? Resolution Will anything change under the ACB?
High Court Application
Inherent jurisdiction (‘Parens Patriae’) – apply ‘best interests’ test
Objective achieved but process unsatisfactory for everyone
Will anything change under the ACB?
Yes, if patient acted when competent
Applications to Circuit Court

6. The Incapacitated Voluntary Patient: UK Position
The Bournewood Gap (HL v United Kingdom)
High Court > not detained
House of Lords > not detained
ECHR
Any suggestion L was free to leave was a ‘fairytale’
No formalised procedures for such patients
Violation of Article 5(1) and 5(4) of ECHR
Led to amendment of UK Mental Health Act

7. The Incapacitated Voluntary Patient: Irish Position
Cases
EH v St Vincent’s Hospital; Supreme Court [2009]
PL v Clinical Director of St Patrick’s Hospital; High Court [2012]
Decision > Not detained
Voluntary patient defined in the negative;
‘person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order’; section 2(1) MHA
No need for voluntary patient to ‘freely and voluntarily’ agree to admission
No need for voluntary patient to have capacity to agree to admission
No violation of rights if there is a failure to assess a patient’s capacity to give consent to admission

8. Criticism De facto detention?
Neither capacity nor consent relevant to admission as a voluntary patient
Inconsistent with first principles of informed consent
No effective safeguards for voluntary (incapacitated) patients
Not a rights-based approach; not consistent with ECHR obligations
Criticism by:
IHRC
Mental Health Commission
Expert Group on Mental Health Act

9. Proposals for Reform Assisted Decision Making Capacity Bill
Does not address Bournewood Gap
Reform of Mental Health Act 2001
Expert Group; report published May 2015
Proposals
Positive definition of voluntary patient: Person who has capacity (with support if required)
Formal Capacity Assessment within 24 hours of admission where patient may lack capacity
If no capacity, voluntary admission cannot take place (even if substitute decision maker appointed under ACB)
New patient category: ‘Intermediate patient’: lacks capacity but does not fulfil criteria for detention
Alternative procedural pathway for these patients

10. Detention of incapacitated adults by the High Court
HSE v VF [2014]
Detained under MHA
MHA did not allow for transfer to non-approved centre (where she needed specialist care)
Lacuna in legislation
Court ordered detention at non-approved centre
HSE v KW [2015]
Child detained (in the UK)
Personality disorder not subject to MHA
Required detention in approved centre (when she turned 18)
Court ordered detention at approved centre (outside of the MHA)
[Case subsequently withdrawn while subject to appeal]

11. Detention of incapacitated adults by the High Court
Basis
Inherent jurisdiction (‘Parens Patriae’)
Balancing of constitutional rights
Right to life/health/wellbeing vs right to liberty
HC jurisdiction subject to certain requirements (ECHR principles)
‘of unsound mind’
Illness of a kind that warrants detention
Validity of continued detention dependent on persistence of disorder/’unsound mind’
‘Least restrictive alternative’ must be chosen
Regular review (by the HC)
‘Rare & Exceptional Order’

12. Detention of incapacitated adults: Problems
HC not designed for this task
Fast & effective review of detention and remedy?
Patient-friendly?
Costs?
‘legal costs of the proceedings would have funded the costs of a purpose built unit for KW in Ireland’ [Mr Justice Noonan]
Statutory mechanism needed
Not easy to cover all scenarios
Does ACB resolve this situation?
Probably not

13. Take Homes
Many vulnerable (incapacitated) patients fall outside of (statute) law
Incapacitated patients requiring non-emergency treatment
Voluntary incapacitated mental health patients
Incapacitated mental health patients not ‘covered’ by MHA
Non –statutory mechanisms not suitable
ACB doesn’t resolve (all of) these problems
New legislative solutions needed

14. Q&A Dr Kevin Power Partner Mason Hayes & Curran kpower@mhc.ie
The contents of this Presentation are necessarily expressed in broad terms and limited to general information rather
than detailed analyses or legal advice. This Presentation may be tailored to your specific needs. If you would like to
discuss this option please contact Kevin Power, Partner, Mason Hayes & Curran ( or ).
Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts