Capacity Issues in the Context of Mental Health Act 2001

1. Capacity Issues in the Context ofMental 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

2. Capacity Issues in the Context of the Mental Health Act 2001: • Overview: Capacity • Capacity Models • Mental Health Act 2001

3. Introduction

4. Legal Presumption of Capacity

5. Capacity and Rights: • Human Rights Dimension

6. Capacity Model • Status – current law • Outcome • Functional approach – LRC’s proposals

7. Statutory Definition of Capacity • Need for a statutory definition • Diagnostic threshold

8. Capacity and Mental Disorder • Mental disorder does not necessarily mean • lack of capacity

9. 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 – • 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 • (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.

10. 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.’

11. Involuntary admission • Exclusions: a person is suffering form a personality disorder • is socially deviant or • is addicted to drugs or intoxicants

12. Consent • Informed Consent • Doctrine of Necessity

13. Substitute Decision Making • Child • Ward of Court • Enduring Power of Attorney • Other

14. Best Interests Principle

15. Role Mental Health Tribunals for persons with Intellectual Disability

16. Appeal from decision of the MHT

17. Conclusion

18. Patricia T Rickard-ClarkeOctober 2006