My family member has been detained - what does that mean? The following information has been kindly provided by the Law Centre (NI). It is intended as a guide for understanding what can happen under mental health legislation when a person needs to be admitted to hospital for treatment and how this interacts with human rights legislation. Please note that this section does not cover patients who have been found to have committed an offence, and who are detained under the criminal justice process. Nor does it cover the rules regarding Guardianship. If either of these two scenarios exist, then please contact Law Centre (NI), or other agencies for advice. What happens under the Mental Health (Northern Ireland) Order 1986? Admission to hospital for treatment A situation may arise where someone close to you experiences an episode where their symptoms are of such severity that an in-patient admission to a psychiatric hospital may need to be considered. Where possible, try to speak to your loved one and check what they want to happen. It may be that they agree to become a voluntary patient. In this case, your first point of contact would be a GP, or, if your loved one is known to secondary mental health services, their key worker (e.g. CPN). If a person is not willing to go to hospital voluntarily, you should contact social services, and/ or the person’s GP. It is legal for the relevant health and social care trust to undergo a legal process to arrange for the person to be admitted to hospital for a period of assessment to a psychiatric hospital against their will. The legislation relating to this is contained within the Mental Health (Northern Ireland) Order 1986, and is known as a ‘detention’. The person will then become an involuntary or ‘formal’ patient. About the Mental Health (Northern Ireland) Order 1986 (‘the Order’) You may have heard of the word ‘sectioning’. Technically this refers to the English Mental Health Act (1983). In Northern Ireland the correct term is ‘Detention’. It means the same thing. Certain mental health care professionals are allowed to make assessments and admit people compulsorily to hospital. It can happen where it is thought that treatment is necessary, and it is assessed there is a risk to the person him/herself or others. The Order sets out a framework for the care, treatment and protection of mentally disordered individuals. Detention for assessment (and thereafter treatment) If a person meets the detention criteria, they can be detained for an assessment period, which can last for up to 14 days. This is to determine if the person is suffering from a mental disorder that requires treatment in hospital. The legal criteria It is vital to note that however we look at it, detention under the order does deprive a person of their fundamental human right, namely their liberty. It is a power that can only be exercised when both parts of the legal criteria have been satisfied. These are: 1. That the person is suffering from a mental disorder which requires treatment in hospital (the clinical element). And 2. That there would be a ‘substantial likelihood of serious physical harm’ occurring to himself, or other persons, should he/she remain in the community (the risk element). It is a matter of judgement whether the criteria, particularly the second one, have been satisfied. It was established by the High Court in 2011 (the JR45 case) that the degree of certainty required (i.e. ‘substantial likelihood’) was equivalent to ‘a real probablity’ It is worth noting that a person cannot be detained solely because of ‘personality disorder, promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’ as defined in the Order. How the application for detention works It is possible for a carer (as Nearest Relative) to make an application for admission to hospital. However this is rarely done (about 1 in 10 applications are done this way), the reason being that it may cause damage to the carer/ patient relationship in the future.The person who usually makes the application for detention will be an approved social worker (ASW). An ASW is a social worker who is experienced in mental health matters. The ASW must carry out a series of investigations about the person’s current condition, medical background and social circumstances. If it is practical to do so, this includes consulting with the ‘Nearest Relative,’ who is defined under the Order. The ASW needs to have two conversations with the Nearest Relative. The first is as part of the consultative process to see if an admission is necessary, (i.e. before the ASW has made up his/her mind). The second conversation will be to inform the Nearest Relative if they have decided to apply for admission or not. If not, and the ASW has been required to carry out an assessment because of Article 40 (4) of the Order, then the ASW must provide written reasons why they refused to apply for admission. If the ASW decides to apply for admission to hospital, they must inform the nearest relative. If the nearest relative does not want the person to be detained, they can voice an objection to it at this time. If such an objection is raised, then the ASW must instruct a second ASW to come and assess the person. If the second ASW agrees with the first, then the application will proceed and the nearest relative’s objection will be noted on the file. If the second ASW disagrees with the application to admit, then it will not proceed. Note that ability of the Nearest Relative to object at this stage in the process is an important safeguard. Nearest Relatives should be aware that the Health Trust must employ the ‘least restrictive option’ to address the situation. Definition of Nearest Relative The Order gives certain rights to the nearest relative which can be used to protect the patient's interests. The nearest relative is determined as the highest placed person in the following list, regardless of gender. If more than two people it is usually the older who is chosen. • Husband, wife or civil partner • Partner (of either sex) who has lived with the patient for at least six months • Daughter or son • Father or mother • Brother or sister • Grandfather or grandmother • Aunt or uncle • Nephew or nieceIt is important to note that out of the list above, a person who lives with, or cares for, the patient is likely to be regarded as the Nearest Relative. A person who is not a relative but who has lived with the patient for at least five years can also be regarded as the Nearest Relative. In summary, the Nearest Relative has the right to: • Make an application for compulsory assessment or treatment of the patient, or get the patient's social services in their local trust to ask an approved social worker to consider the patient's case. • Be told if an approved social worker applies for the patient to be detained for compulsory assessment. • Be consulted about, and object to, a social worker applying for the patient to be detained for compulsory treatment. • Discharge the patient. This is done by giving the hospital 72 hours written notice of the intention to discharge. The discharge can be blocked by the treating Consultant Psychiatrist sending the Nearest Relative a ‘barring letter’ within the 72 hour period. • If a ‘barring letter’ is received, the Nearest Relative can apply to a Mental Health Review Tribunal [MHRT] on behalf of the patient. This must be done within 28 days from the date of barring letter. A Tribunal normally takes 6 weeks to be convened. • The Nearest Relative can only use the power of discharge/ applying to MHRT once during any period of detention. It is important to note that the Order is not compliant with the European Convention on Human Rights in one important respect. The patient is not able to initiate a process to seek a change of nearest relative, if they do not agree with the appointment of that Nearest Relative. There may be one or more reasons why they would want the NR replaced. To impose a nearest relative against the patient’s wishes is an unwarranted infringement of their Article 8 right to respect for a private life. The law was changed accordingly in England in 2007, but our Order has not been changed. However health and social care trusts are aware of the problem. A pragmatic way round it is for the patient or his/her representatives to write to the detaining Consultant Psychiatrist, setting out the reasons why he wants the NR changed. It is useful to suggest someone else to be appointed as NR. Copy the letter to the person’s GP and the Assistant Mental Health Director of the relevant Trust. Hopefully the health and social care trust will agree to the NR displacement.The Application process continued... The ASW’s application is founded on a recommendation by a medical practitioner’ - preferably, but not necessarily, the person’s GP. Both the ASW and the medical practitioner must meet with the person no more than 24 hours before they make the application for admission. They often do so at the same time. If the ASW and the medical practitioner sign the appropriate forms, the person can then be legally conveyed to a psychiatric hospital. On arrival, the person must be immediately examined by a doctor with specialist psychiatric training. If that doctor agrees that the legal criteria have been met, then is at this point that the detention for assessment period begins. Thus, three health care professionals are involved and all must agree with the need for detention. It must be recognised that it is not inevitable that the person will be detained. The ASW or GP may decide that the grounds for detention do not exist. They have to work under the principle of ‘least restrictive option’. If there is a solution available other than detention, then this must be explored. An excellent way of understanding how the detention process works is to look at a flowchart form outlining the different stages of detention. The GAIN (Guidelines Audit and Implementation Network) website provides a very visual and accessible outline of the detention process. Website link to GAIN: www.gain-ni.org/flowcharts The effects of detention While in hospital, a detained patient is afforded the same care and attention as a voluntary patient. However, some additional measures are, or can be, placed upon them. The main difference is that if the person is detained for treatment, the responsible medical officer (RMO) can impose certain treatments, usually administration of medication, without the patient’s consent. This can last for a period of up to three months, after which a second opinion must be sought from another psychiatrist.Patient support agencies • The hospital itself has a duty to provide patients, at the earliest opportunity, with information about their rights. The hospital staff will try to help and resolve any concerns that patient might have. • Voluntary and community groups have advocates who visit wards regularly. Some have personal (otherwise known as ‘peer’) experience of mental health problems or hospital admission, and are well placed to provide empathy, emotional support, practical help or advice. • The health and social care trust may have a patient liaison officer. • If an issue or complaint arises, which requires more formal investigation, the matter can be referred to the Regulation and Quality Improvement Agency (RQIA) or the NI Ombudsman, the statutory watchdogs for health and social care trusts. • At all times, the patient has the right to receive advice from a solicitor or other legal adviser. Discharge from detention Discharge by hospital authorities Discharge from detention can be directed by the RMO or the health and social care trust managers. Thus, it is worthwhile making representations to them if the patient feels that the grounds for their detention no longer apply. The Mental Health Review Tribunal A detained patient can apply to the tribunal, which is an independent judicial body responsible for hearing appeals against compulsory detention. A patient can be legally represented at the hearing. An application to the tribunal can be made once during each detention period. Nearest relative The nearest relative has the power to order the discharge of the patient by giving ’72 hours’ written notice to the hospital. During this period of time, the hospital can bar the discharge. If this happens, the nearest relative can apply in their own right to the Mental Health Review Tribunal. This must be done within 28 days of the barring order. Human Rights Act 1998 The Human Rights Act 1998 incorporates into our domestic law the European Convention on Human Rights (the Convention). The Convention states the fundamental rights and protections of all individuals within member states and these are set out in articles. Public authorities, including health and social care trusts, must by law act in accordance with the Convention. Some of the rights are not absolute and can be interfered with if there are compelling reasons for doing so, as set out in the Convention. The articles that are most relevant to the operation of the Mental Health (Northern Ireland) Order 1986 are as follows: Article 5: Right to liberty and security Depriving someone of their liberty via detention, because of mental disorder, is an infringement of this right. However, it is allowed if the procedure in the Mental Health (NI) Order 1986 is followed, and if detention is deemed absolutely necessary. Article 8: Right to respect for private and family life Taking a person away from their family and home is obviously an interference with this right. It is legal to do so for several reasons, including in the interests of ‘public safety’ or the ‘protection of health’; both of which would apply in a detention order. However, the hospital must have ongoing regard for this right; for example, when considering requests for temporary leave back home, or when dealing with a complaint about the conditions of detention. “Proportionality” This is one of the main concepts of the Convention. To justify an action that infringes a Convention right, the Health and Social Care Trust must show it is a proportionate response to the particular risks that present themselves, and proportionate to the individual’s own set of circumstances. The action must not be seen as excessive. Other relevant legislation To offer the most effective support to person with a mental illness, it is helpful to be familiar with a person’s legal rights also under: • Disability Discrimination Act 1995 • Disability Discrimination (NI) Order 2006 New legislation in Northern Ireland to replace the current Mental Health (Northern Ireland) Order, 1986: At the time of going to print with this guide, there is work on a new single bill progressing through our legislative process here in Northern Ireland which will ultimately replace the Mental Health (Northern Ireland) Order, 1986. The Bamford Review recommended the introduction of a single legislative framework for the reform of existing mental health legislation and the introduction of mental capacity legislation for Northern Ireland to include the enhancement of protections for those unable to make decisions and the embedding within the legislation of principles designed to protect the human rights of those with mental illness or a learning disability. The proposed The Northern Ireland Mental Capacity (Health, Welfare, and Finance) Bill is the first joint Bill to be introduced to the Northern Ireland Assembly, and was developed in part from the recommendations of the Bamford Review. It seeks to adopt progressive proposals to protect the rights of people with disabilities, when making personal healthcare, financial or legal decisions. Once approved, Northern Ireland will become one of the first areas in Europe to introduce a Human Rights based approach to legislation governing this area; ensuring those with disabilities have as much involvement as possible in critical decisions affecting their lives.