People can easily be held against their will in psychiatric facilities
Mental Health Commission stages mock hearing to demonstrate how tribunals operate
Pictured during a mock mental health tribunal are (from left) Dr Maria Frampton, tribunal consultant; Ann Donnell, tribunal chair, and Mary Rose Tobin, tribunal lay member. Photograph: Cyril Byrne/The Irish Times
The process for being locked up against your will as a result of a mental illness is surprisingly simple.
First a competent adult fills out a form – downloadable from the internet – detailing the illness and why you require secure care. While this can be anyone who has observed you within the last 48 hours, in practice it’s usually a family member or a garda.
Then a GP examines you, taking account of mood, thought patterns and behaviour, before writing up their own report – the results of which they do not have to share with you if they believe it could cause further distress.
Next the doctor contacts the director of the relevant psychiatric facility to see if they will accept you.
An “assisted admissions team” – usually psychiatric nurses – might be dispatched to take you to the hospital if a person is resisting, and gardaí can also be called if needed.
The original order lasts for 21 days, meaning that once in the facility a person is probably going to be there for nearly three weeks before their case is formally reviewed, although they can be released sooner if a consultant psychiatrist agrees.
Every year between 2,000-2,500 people are detained against their will in psychiatric facilities where they can be forcibly injected with medication, physically restrained by staff and locked in isolation. For comparison’s sake, just over 9,000 people a year are sent to prison for crimes or alleged crimes.
“You actually don’t really realise how much power the State or the doctors have in this area until you go through it,” says Simon, who was detained against his will four years ago when he stopped taking his anti-psychotic medication.
Simon – who asked that his real name not be used – suffers from schizophrenia and has been through the process twice; both times at the instigation of his father.
“I definitely needed to be in hospital. I think if I was more together I would have gone in on my own but to be honest I don’t really remember what I was doing that led to it either of the times.”
Now stable on his medication and back in college, Simon has few complaints about the parts of the process he can remember. “But I did wonder . . . if you were sick but not too sick, they could just put you in there and there wouldn’t really be anything you could do about it. Even if it was a really bad place for you.”
There are many people who, unlike Simon, are not happy with how they were treated during the process.
One of the best insights into the experience of involuntary psychiatric care is offered by Emma Bainbridge who, as part of her doctoral studies at NUIG, surveyed patient experiences shortly after their detention and again three months after discharge.
Out of 263 patients she surveyed, 43 per cent felt their detention was necessary, rising to 65 per cent when they were re-interviewed three months after release.
Only 33 per cent believed their need for admission was adequately assessed. Crucially, this only increased to 40 per cent at the follow-up stage when patients were more stable and presumably had greater insight into their illnesses.
More than a quarter of the patients who spoke to Bainbridge experienced “at least one coercive measure” while detained. Of these, 81 per cent experienced physical restraint, half experienced seclusion and 70 per cent received forced injections of medication. One person was physically restrained 12 times while another was put in seclusion on 16 occasions.
More than 57 per cent of interviewees said they felt threatened into taking medication, a figure which only dropped slightly to 51 per cent at follow-up.
“Many patients do not believe that the whole tribunal-based governance around involuntary care is truly independent. Importantly, these perspectives persist in many patients even when their symptoms (usually of psychosis) settle,” says Prof David Meagher, a psychiatrist who has worked at most stages of the involuntary admission process.
Bainbridge’s study illustrates the stark reality of involuntary admission. The State, through the health service, has the power to take away many of the basic rights everyone takes for granted.
The check on this power comes from the Mental Health Commission (MHC) and its mental health tribunals. Every involuntary patient must been assessed by a tribunal, comprised of a lawyer, a consultant psychiatrist and a lay person, within 21 days of admission. Last year there were 1,867 hearings.
The hearings are held in private by law. However, the Mental Health Commission agreed to stage a mock hearing for The Irish Times to demonstrate the process.
The patient, “John Doe”, was played by an actor while the other participants played their normal roles.
Hearings usually take place in meeting rooms in the psychiatric facility where the patient is being held (“but in some places it’s across a coffee table,” says tribunal chair Ann Donnelly). This one was held in the commission’s offices.
There’s a water jug and glasses on the table, although in a real hearing these might be removed if the patient has a history of aggression.
You say I’m hostile. But how would you like it if you were being locked up. Of course I’m not going to be happy
They check the relevant forms are filled in correctly.
These ones haven’t been. For the purposes of the demonstration several errors have been inserted into the file, although the tribunal doesn’t think any of them will translate into a finding of unlawful detention.
“In the early days in 2006 (shortly after the modern review system was established) mistakes on the forms did lead to orders being revoked,” Donnelly explains. Now, everyone is experienced enough that such errors are rare.
John is accompanied by his solicitor and the treating consultant psychiatrist, Dr Fiona Fenton, when he is brought into the room. It was Fenton who compiled the report for the tribunal stating John is suffering from a mental illness.
The actor playing John does a convincing job at portraying what the commission says is a broadly typical patient. He refuses to make eye contact and fidgets with his hands as he tells the tribunal he wants to go home.
“I’m going to be leaving. I want to leave. There’s nothing wrong with me.”
Fenton explains that this is John’s third admission under the Mental Health Act. He suffers from paranoid schizophrenia and hasn’t been taking his medication. His father had him admitted after he stopped eating and leaving the house.
Now he is hostile to the patients and staff and won’t eat the hospital food because he thinks he is being poisoned.
“You say I’m paranoid but you’re only paranoid if it’s not true. You made me go inside. So I wasn’t paranoid,” John responds. “You say I’m hostile. But how would you like it if you were being locked up. Of course I’m not going to be happy.”
John seemed to be making a valid point here – anyone would be angry about being locked up against their will. I repeat his words later to Meagher.
“This is a key reason why we need medical input to decisions around involuntary treatment – the fact that somebody has a severe and active mental illness by no means prevents them from having a highly logical perspective about most of the environment around them and being able to communicate that in a very coherent way,” he says.
According to Meagher, doctors must differentiate between an understandable reaction to a stressful situation, such as involuntary detention, and the underlying symptoms of an illness such as psychosis.
Meagher says the attitude of patients at tribunals can vary considerably. “Some perceive the tribunal as a battle to be won or lost (which is clearly not a helpful perspective), while a considerable number either refuse to attend or leave during proceedings.”
Next to speak at the tribunal is Johns’s solicitor, John Neville. He submits that the errors in the forms mean the detention is “fundamentally flawed” and the order should be revoked.
Neville’s job is a difficult one. If a patient wants to be released, he must advocate for that, even in cases such as John’s where secure treatment is clearly in their best interest.
John wants to get out so Neville must try everything he can to make it happen.
“It’s what we have to do. It’s our obligation,” he says later.
Tribunals are supposed to be more inquisitorial than adversarial. They’re not a High Court and shouldn’t have a “winner-takes-all philosophy”, Meagher says.
However, in some cases patients’ solicitors treat the tribunal like a court case to be won at all costs. This can impact the relationship between a patient and the doctor who might wish to keep them in hospital, he says.
“In short, when the tribunal goes home the treating clinician and the patient need to be able to work together to get the best outcome for the patient.”
The relationship between doctor and patient is a delicate one and could be harmed if the patient believes it is the doctor keeping them there against their will
It doesn’t appear Neville is going to be successful. The tribunal’s only role is to either affirm or revoke the involuntary admission order. To do that it examines if the paperwork is correct and if the patient has a mental illness on the day of the hearing, nothing more.
Donnelly indicates that in John’s case they would likely overlook the paperwork errors and endorse the order.
“We would have to make that decision. I don’t know what way we would come down on it. You know, we’d have to have a big discussion about it. I mean there are a lot of issues with the forms. I think we could probably excuse them and I think it would be certainly in his best interest to stay in the hospital”. *
Normally a tribunal member would visit John on the ward to convey the bad news – its better that it comes from an outsider rather than the doctor responsible for his treatment.
The relationship between doctor and patient is a delicate one and could be harmed if the patient believes it is the doctor keeping them there against their will.
The tribunal does revoke some detention orders – about one in 10 – usually in cases where it finds the patient does not suffer from a mental illness under the Mental Health Act on the day of the hearing.
In most cases it’s clear the patient requires secure care. The most difficult cases are the borderline ones, the ones where a patient has shown significant improvement but is in danger of relapse.
“Bipolar disorder is one that can cause difficulties for all of us – if someone is manic or hyper-manic and they’re not quite fully recovered but they’re 80 per cent recovered. There’s still that risk that if they leave hospital they’ll go mad spending or they’ll be reckless with driving or drinking or all that kind of stuff,” says Frampton.
In many ways the tribunals are cold, formalistic processes run by sympathetic people who do their best by the patient while trying to minimise risk. However, risk can’t be avoided altogether.
If the patient doesn’t meet the criteria set out in the act they must be released, even if everyone in the room except them knows it probably a bad idea.
“You can’t be wandering around the street thinking ‘did I do the right thing?’,” says Donnelly. Some patients have threatened others or attempted suicide but if they don’t meet the criteria under the act on the day of the hearing, they must be released, she says.
In certain cases, patients who don’t meet the strict criteria can be persuaded to stay in hospital on a voluntary basis. But this doesn’t always work out.
“There’s cases where the patient will say in the tribunal ‘of course I’ll stay, I’ll do everything you ask’,” Donnelly says. “And four hours later, they’re gone.”
If the tribunal affirms an order it remains in place for three months before being reviewed again. Until recently six-month and 12-month orders could also be made, but in May these were struck down by the Supreme Court as unconstitutional.
The ruling would have led to the immediate release of nearly 100 severely-ill patients, including about 15 high-support patients being treated in the Central Mental Hospital.
However, the court suspended its finding of unconstitutionality until November 8th to allow laws to be enacted to fix the problem.
A Department of Health spokesman said legislation is currently being drafted to address the court’s ruling.
Tribunals are also a blunt instrument. For various reasons, a small number of patients are released when they should stay in secure care while others are detained even though they might fare better in the community, given the right supports.
Meagher believes there are issues with the process but, crucially, “it does not generally pose a major barrier to unwell persons receiving treatment”. He also points out the involuntary admission rate in Ireland is lower than most European countries and nearly half the UK rate.
“Also it has added much-needed transparency to the reality that there are not droves of misguided psychiatrists trying to lock people up unnecessarily.”
* This article was amended on October 1st, 2018