LAW MATTERS:Clear and potent indications of a paternalistic approach towards people suffering from mental illness have emerged in some recent judgments, writes DR CIARÁN CRAVENBL
ON JULY 6th, 1949, 60 years ago this month, Philip Clarke was taken into custody by Garda William Melly and removed to a Garda station. Garda Melly believed that Philip was of “unsound mind” and that it was necessary to place him under control for his own safety.
A recommendation was made later that day for his involuntary detention in what was then Grangegorman Mental Hospital (now St Brendan’s Hospital). He was detained there as a person of unsound mind, in effect, for an indefinite, unreviewable period.
What happened that day was, in many respects, wholly unremarkable. The Mental Treatment Act 1945 expressly allowed it to be done. Perhaps not unsurprisingly, in the prevailing socio-cultural milieu and given the limited treatments available for patients with significant mental health difficulties, neither the High Court nor the former Supreme Court acceded to his habeas corpus application.
In determining the question of the constitutionality of the provision of the Act of 1945 under which he was detained – relating to the absence of a judicial review or examination prior to his detention – the Supreme Court held that the “impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and wellbeing of the public generally”.
Observing that “the existence of mental infirmity is too widespread to be overlooked” the court did not “see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others”.
It might have been considered that the sentiment expressed in that case, stressing the generally paternalistic nature of the mental health legislation, would not have survived the cultural and medical shifts over the following half century. Not so: the same view was repeatedly endorsed by the courts over the years.
Paternalism, however, is considered to have no place in current medical practice. Respect for individual autonomy is the pre-eminent value to which doctors subscribe – at least theoretically. Conceptually, that hardly sits well within a legal framework rooted in a fundamentally different value system or, indeed, with the reality of a lack of true autonomy in some individuals with serious mental health difficulties.
The due process requirements of the European Convention on Human Rights in relation to persons suffering mental disorder, which find expression in the Mental Health Act 2001, ground an ostensibly libertarian ethos. At the same time, section 4 of the Act seeks to place the “best interests” of the patient as the “principal consideration” (with due regard to the interests of others) in the making of care or treatment decisions. It also requires “due regard . . . to the need to respect the right of the person to . . . autonomy” (sic).
This suggests, superficially at least, an attractive via media or balancing mechanism between respect for individual autonomy and paternalism. But, how are a patient’s best interests best protected? Is it solely a matter of clinical hegemony – the doctor knows best – or professional paternalism in an institutionalised guise? Or does it require more?
The Supreme Court acknowledged expressly in RL v Clinical Director St Ita's Hospital & ors(February 15th, 2007) that the Act of 2001 provided a scheme of protection that was "very elaborate and very necessary", referring to an earlier decision of Costello P condemning the procedures formerly in place in this jurisdiction.
In several cases, the importance of due process was explicitly identified. In AM v Kennedy & ors(April 24th, 2007) the High Court, castigating disregard of formalities, considered that in matters involving the deprivation of liberty "the greatest care must be taken to ensure the procedures are properly followed". Similarly, in WQ v Mental Health Commission & ors(May 15th, 2007), the High Court considered that the best interests of a person suffering from a mental disorder are secured by "a faithful observance of and compliance with the statutory safeguards put into the 2001 Act, by the Oireachtas", an approach further endorsed in PMcG v Medical Director Mater Misericordiae Hospital & ors(November 29th, 2007).
In circumstances where mental illness will affect, on average, between one in three and one in four of us at some stage during the course of our lives, and, accordingly, where any one of us may find ourselves subject to the provisions of the Act of 2001, this is reassuring, especially considering the panoply of constitutional rights – in addition to the right to liberty – infringed by involuntary detention.
A paternalistic approach, however, is discernible in a number of other cases. In T O'D v Kennedy & ors, dealing with the review by Mental Health Tribunals of technically invalid involuntary detention orders, the High Court considered that section 4 of the Act of 2001 "infuses the entire of the legislation with an interpretative purpose".
It noted that the concern for the tribunal was "whether the substance of the order is sufficiently well justified by the condition of the patient" and that it was entitled, inter alia, to have regard to the fact that a person is suffering from a serious psychiatric illness requiring treatment "of assistance to him and to the community". Thus, the tribunal was empowered to affirm the lawfulness of a detention that has become flawed because of a procedural failure in relation to time limits.
In JH v Lawlor & ors(June 25th, 2007) the High Court had no doubt "that a purposive approach to interpretation of the Act [of 2001], consistent with its paternalistic and protective nature" must be adopted by the High Court when reviewing the lawfulness of a patient's detention. While acknowledging that this does not mean that when errors are made they may always be overlooked if the interests of the patient so require, the court held that it must have regard to a patient's best interests when balancing the nature of the procedural failure against the patient's need in his "own best interests" to be detained for care and treatment.
More recently, the High Court, in R v Clinical Director St Brendan's Hospital & anor(March 24th, 2009), adopted a similar approach, being satisfied, among other findings, that on the application of section 4, affirming the involuntary detention order was in the patient's best interests "having regard to his mental condition".
Even more recently, a unanimous Supreme Court in EH v St Vincent's Hospital & ors(May 29th, 2009) referred to the "paternalistic intent of the legislation as exemplified in particular by the provisions of sections 4 and 29 of the Act [of 2001]". A similar approach was taken to the interpretation of the 1945 legislation, and it did not see why any different approach should be adopted regarding the Act of 2001. Nor did it consider this was mandated or required by Article 5 of the European Convention on Human Rights.
Whatever about the actual language of the Mental Health Act 2001, its underlying libertarian philosophy and obvious genuflection to the due process requirements of the European Convention, there are clear and potent indications of a paternalistic approach emerging from the application of the best interests provisions of the legislation.
The distance travelled from Philip Clarke, on one view, might not be considered very great.
Dr Ciarán Craven lectures in medical law on the LLM course in TCD and is a practising barrister