Transcript Capacity Issues in the Context of Mental Health Act 2001

Capacity Issues in the Context of
Mental Health Act 2001
NATIONAL FEDERATION OF VOLULNTARY BODIES
“Meeting the Challenge – Of Building a Person Centred Mental
Health Service of People with Intellectual Disabilities”
The Heritage Hotel Killenard County Laois
25 and 26 October 2006
Patricia T Rickard-Clarke
Capacity Issues in the Context of the Mental
Health Act 2001:
Overview:
Capacity
Capacity Models
Mental Health Act 2001
Introduction
Legal Presumption of Capacity
Capacity and Rights:
Human Rights Dimension
Capacity Model
Status – current law
Outcome
Functional approach – LRC’s proposals
Statutory Definition of Capacity
Need for a statutory definition
Diagnostic threshold
Capacity and Mental Disorder
Mental disorder does not necessarily mean
lack of capacity
Mental Health Act 2001: Section 3 –
Definition of Mental Disorder
Section 3 of Mental Health Act 2001 provides:
“mental disorder” means mental illness, severe dementia or significant intellectual disability where –
(a) because of illness, disability or dementia, there is a serious likelihood of the person concerned
causing immediate and serious harm to himself or herself or to other persons, or
(b) (i) because of the severity of the illness, disability or dementia, the judgment of the person
concerned is so impaired that failure to admit the person to an approved centre would be likely to
lead to a serious deterioration in his or her condition or would prevent the administration of
appropriate treatment that could be given only by such admission, and
(ii) the reception, detention and treatment of the person concerned in an approved centre would be
likely to benefit or alleviate the condition of that person to a material extent.
Section 3 continued
“Mental illness” is stated to mean – ‘a state of mind of a person which affects the person’s thinking,
perceiving, emotion or judgment and which seriously impairs the mental function of the person to
the extent that he or she requires care or medical treatment in his or her own interest or in the
interest of other persons.’
“Severe Dementia” is stated to mean – ‘a deterioration of the brain of a person which significantly
impairs the intellectual function of the person thereby affecting thought, comprehension and
memory and which includes severe psychiatric or behavioural symptoms such as physical
aggression.’
“Significant Intellectual Disability” is stated to mean – ‘a state of arrested or incomplete development
of the mind of a person which includes significant impairment of intelligence and social
functioning and abnormally aggressive or seriously irresponsible conduct on the part of the
person.’
Involuntary admission
Exclusions: a person is suffering form a personality
disorder
is socially deviant or
is addicted to drugs or intoxicants
Consent
Informed Consent
Doctrine of Necessity
Substitute Decision Making
Child
Ward of Court
Enduring Power of Attorney
Other
Best Interests Principle
Role Mental Health Tribunals for persons with
Intellectual Disability
Appeal from decision of the MHT
Conclusion
Patricia T Rickard-Clarke
October 2006