Anne-Marie O'Sullivan BL is an Irish barrister practising in child and mental health law. She has previously worked as Mental Health Legal Officer with Amnesty International Ireland, and is an active member of the PILA Pro Bono Register.
Advance healthcare directives enable a person to set down his or her wishes about care and treatment in anticipation of any future decision-making difficulties. They can limit infringements of personal autonomy and bodily integrity as well as promoting a person-centred approach to care. These objectives reflect the principles of the UN Convention on the Rights of Persons with Disabilities (CRPD), which seeks to promote legal capacity by moving away from a substitute decision-making model towards a system of supported decision-making.
In anticipation of Ireland’s ratification of the CRPD, the Assisted Decision-Making (Capacity) Bill 2013 will introduce a supported decision-making model into Irish law. However, in its current draft format it lacks any provision for advance decision-making, which is an integral part of a system of supported decision-making. To address this omission, the Department of Health published a draft General Scheme of Legislative Provisions for the making of Advance Directiveson 4 February 2014. It is anticipated that this Scheme will be integrated into the 2013 Bill at Committee stage following a public consultation, and will provide for legally binding healthcare directives.
At first glance, it would appear that mental health treatment falls squarely within the Scheme. In defining the “treatment” that can be contained in an advance directive, Head 2 includes interventions or procedures done for any purpose relating to physical and/or mental health. The accompanying explanatory memorandum also speaks of the need to ensure compliance with the principles of non-discrimination and equality expressed in the CRPD as well as Ireland’s obligations under the Council of Europe’s Recommendation CM/Rec (2009) 11 on principles concerning continuing powers of attorney and advance directives for incapacity.
Unfortunately, upon closer inspection it appears that the application of advance directives concerning mental health treatment is severely limited. Specifically, under Head 5, subhead (7), where a person’s treatment falls under Part 4 of the Mental Health Act 2001 or the Criminal Law (Insanity) Act 2006, his or her advance healthcare directive will not be binding (although it can be taken into consideration). This is purportedly necessary to fulfil the State’s obligations to uphold the common good and to protect and maintain the rights and best interests of its citizens.
Far from being the “limited exception” described by the Scheme, this exclusion is very broad and covers any involuntary treatment which the consulting psychiatrist believes is necessary to safeguard the person’s life, to restore his or her health, to alleviate his or her condition or to relieve his or her suffering in circumstances where the person is unable to provide consent due to his or her “mental disorder” (section 57(1) of the 2001 Act). This goes beyond the doctrine of necessity and clearly discriminates between physical and mental treatment under the Scheme. The exemption also extends to sections 59 and 60 of the 2001 Act, which allow for electro-convulsive therapy (ECT) or medication for a period in excess of three months.
This blanket exemption ignores the fact that Part 4 of the 2001 Act is significantly out of step with international human rights law and standards. Part 4 of the 2001 Act gives insufficient weight to patient autonomy in situations where they are most needed, while sections 59 and 60 attach little or no significance to a patient’s decision-making ability. Additionally of concern is the Scheme’s reference to the “best interests” principle as a justification for excluding involuntary mental health treatment. Not only is this reliance on the “best interests” principle in direct conflict to the Scheme’s own stated aims “to promote the autonomy of persons in relation to their treatment choices” and to “enable persons to be treated according to their will and preferences” (Head 3), it also marks a move away from the ethos of 2013 Bill.
If the new capacity legislation is to comply with Ireland’s international obligations, this omission is only one of several issues that must be resolved prior to the Scheme’s integration into the 2013 Bill. However, for people with mental health problems, it is vital that their concerns are addressed now and that Scheme does not discriminate between advance directives for physical and mental health treatment.
Removing the limiting provisions would signify the Government’s commitment to fully integrating advance directives for mental health care and treatment into the general legislation. It would also set a clear path for future amendments to the Mental Health Act 2001.
The Department of Health has opened a public consultation process on the Scheme, and submissions can be made before 7 March 2014, by emailing advancedirectives@health.gov.ie.