All GPs should be conversant with the Mental Health Act 2005 in relation to the role of the GP.
In accordance with the Mental Health Act 2005, Form 5 (recommendation) is the form to be used for involuntary admissions. The relevant forms and information can be downloaded at www.mhcirl.ie
Walking the Tightrope
Balancing the patient’s best interests with their right to liberty
Section 10 of the Mental Health Act 2001 came into force in November 2006. It sets out the legal basis for the role and responsibilities of the GP in the involuntary committal of a patient to a psychiatric hospital.
The Act was enacted to bring Irish law, in respect of mental health issues, into line with international human rights standards.
The underlying cardinal principle of the Act is to safeguard the liberty of patients.
There are very limited circumstances in which an individual’s right to liberty can be interfered with, save by judicial process.
The involuntary committal of a patient is one of the very limited exceptions. That being the case, the Courts will always strictly interpret the procedures to be followed under the Act. Any deviation from the prescribed procedures will render any subsequent admission order to a psychiatric hospital (or “approved centre” as defined by the Act) invalid and, consequently, will expose a general practitioner to a potential claim in medical negligence.
The first step in the involuntary admission procedure is that the GP (or any registered medical practitioner) must receive an application from a third party to commit the patient.
The applicant can be a spouse or relative of the patient, an authorised officer of the Health Service Executive, a member of An Garda Síochána or any other member of the public.
The Act specifically disqualifies the following persons from making an application to a registered medical practitioner:
- Anyone under the age of 18 years.
- An authorised officer of the HSE or a member of the Garda Síochána who is a relative or spouse of the patient.
- A member of the governing body, or the staff, or the person in charge of the approved centre concerned.
- Any person with an interest in the payments (if any) to be made in respect of the care of the patient concerned in the approved centre.
- Any registered medical practitioner who provides a regular medical service at the approved centre concerned.
- The spouse, parent, grandparent, brother, sister, uncle or aunt of any of the persons mentioned in points 2-5.
The applicant to the GP must have formed the view that the patient has a mental disorder and the applicant must complete a statutory form within 48 hours of observing the patient demonstrating symptoms of mental disorder.
There are four individual forms for the four categories of persons making an application to a GP and it is very important that as the GP, you ensure the correct form has been presented.
You must then examine the patient within 24 hours of receipt of the application form. There have been a number of authorities before the Courts, both before and after the enactment of the 2001 Act, which make it abundantly clear that there must be a personal examination of the patient concerned which must be documented and which must demonstrate that you have formed an individual opinion that the patient is suffering from a mental disorder.
Under the Act, a mental disorder is defined as an illness, dementia or disability leading you to form the view that there is a serious likelihood of the patient causing immediate and serious harm to themselves or other persons. An alternative definition under the Act is the judgement of the patient being so impaired that failure to admit the person to an approved centre could lead to a serious deterioration of their condition or prevent the administration of appropriate treatment that could be given only by such admission, and the reception, detention and treatment of the person concerned would be likely to benefit or alleviate the condition of that person to a material extent.
Personality disorder, social deviance or drug or other addictions are specifically excluded as criterion for involuntary admission.
The critical part of your role in involuntary admission is the carrying out of the examination. The patient must firstly be informed of the purpose of the examination, unless you form the opinion that advising the patient as to the purpose of the examination would be prejudicial to the patient’s mental health, wellbeing or emotional condition. If you do hold this opinion, it should be documented in the clinical records.
In a case of O’Reilly – v – Mid Western Health Board (a case taken by a patient under the old Mental Treatment Act 1945), a GP signed an application form on foot of accounts of the Plaintiff’s history from both her husband and father, and from a visual examination of her from 12 to 15 yards away, whilst she was having a dispute with her husband.
The Plaintiff was hysterical and violent towards her husband but was not aware of the GP’s presence. A second doctor signed the form after physical examination of the Plaintiff and consultation with the first GP and a Consultant Psychiatrist.
Both the High Court and Supreme Court (in 1993) found that the first GP’s actions were sufficient “examination” for the purpose of the Act and hence the Plaintiff failed to win leave to take proceedings against the GP or the Mid Western Health Board.
The Plaintiff, however, appealed her case to the European Commission of Human Rights in Strasbourg, which ruled in her favour.
A consideration of Section 10 of the 2001 Act was held in a recent case of S.O. – v – The Clinical Director of Tallaght Hospital by Mr Justice Gerard Hogan.
The GP in this case signed a Section 10 form but did not actually see or examine the patient. As in the O’Reilly case, the GP relied on what the patient’s mother and brother told him in respect of their observations and he also heard a tape recorder conversation between the brother and the patient.
The patient was removed to Tallaght Hospital and a Consultant Psychiatrist examined and signed an involuntary admission order.
The Judge, however, held there was complete failure on the part of the GP to carry out a personal examination of the patient, which was required by Section 2 of the Act, and hence the requirement of Section 10 that there be a prior examination by a registered medical practitioner before a patient is brought to an approved centre had not been met. Accordingly, the subsequent detention was held to be invalid and illegal.
Accordingly, it is fair to say that the Irish Courts take a very strict approach to the provisions of the 2001 Act. If there is any failure to observe, to the letter of the law, the procedures as laid down by the Act, then any subsequent detention in an approved unit is an invalid detention.
It doesn’t matter whether a consultant psychiatrist in the approved unit fully agrees with the general practitioner’s view that the patient is suffering from a mental disorder. The GP’s view can only be formed after a physical examination of the patient and no amount of collateral evidence such as accounts from family members, recordings, etc, can make good the failure of a GP to actually examine the patient.
To sum up, if you fail to follow the procedures laid down in Section 10 of the Act, or fail to actually examine the patient, then you expose yourself not only to a potential claim in medical negligence, but also to the possibility that such a patient may seek a declaration before the Court in Strasberg that their committal represented an arbitrary detention in violation of Article 5 of the Convention on Human Rights.
If you require any further guidance in relation to the procedures to be followed in any individual case, then do not hesitate to seek the assistance of Medisec.