Please note: This Practice Note has been superseded by Legal representation at the Mental Health Commission, guidelines for solicitors - second edition, published in 2020.
The following guidelines are intended to assist solicitors who are involved in the representation of patients before Mental Health Commission (‘the commission’) tribunals. The tribunals review all involuntary admissions of patients to hospital or psychiatric units. If the detention is not lawful, the patient will be discharged.
Most of those involved in this area of work will be members of the commission’s panel and would therefore have fulfilled the selection criteria for membership of the panel (see below). Since representation of patients before the tribunals is not exclusive to panel members, these guidelines will also be of assistance to other solicitors. Most of those involved in this area of work will be members of the commission’s panel and would therefore have fulfilled the selection criteria for membership of the panel (see below). Since representation of patients before the tribunals is not exclusive to panel members, these guidelines will also be of assistance to other solicitors.
The Law Society is keen to ensure that patients’ representatives maintain the highest possible standards in the preparation, presentation and conduct of the clients’ cases before the tribunals. Since the patients may not raise concerns about the performance of their legal representatives, solicitors have an obligation to ensure that proper standards are maintained. However, the commission has published its Quality Assurance Directions for Legal Representatives (1 June 2008).
The right to liberty is a constitutional imperative. Under the Mental Health Act 2001, an involuntary admission will now automatically trigger a referral to a tribunal.
RETAINER AND REPRESENTATION
Since the enactment of the Mental Health Act 2001, solicitors are in a new and evolving situation. In the past, solicitors were advised that, before they could accept instructions from a client, they had to be satisfied that that client had the necessary mental capacity to enter into a contract for legal services and also to understand the nature and implications of the transaction in which they were involved. If, during the course of such a retainer, it became clear that the client no longer had the mental capacity to continue to instruct the solicitor, or to understand what was being done on his/her behalf, the solicitor had an obligation to terminate his/her services.
The Mental Health Act 2001 has now created a new role for solicitors, which is not based on a contract for legal services between a solicitor and a client with full mental capacity. The main issue that solicitors must be aware of is that solicitors’ contracts for legal services will be with the commission and that payment for the services provided will be made by the commission in accordance with the scale approved by the commission and the Department of Finance. (See the Mental Health Commission’s Terms and Conditions Pursuant to the Mental Health Legal Aid Scheme 2005.) The solicitor’s duty is, however, to give individual representation to the patient.
CLIENT’S INSTRUCTIONS OR BEST INTERESTS?
Questions will be raised as to whether solicitors representing patients should act in accordance with the patient’s instructions or whether their role is to act in the patient’s best interests. (See the Mental Health Commission website at www.mhcirl.ie for relevant High Court judgments, post-commencement of the Mental Health Act 2001.) Section 4 of the Mental Health Act 2001 obliges persons making decisions under the act to act in the best interests of the patient. The solicitor’s role is limited to acting in the client’s best interests in terms of legal representation. What is in a patient’s best interests is a matter for the professional judgement of the solicitor, taking into consideration the following points:
1) It is the patient’s views or wishes that should be represented to the tribunal. A solicitor should act in accordance with the patient’s instructions. However, in taking those instructions, the solicitor must determine whether or not the patient is capable or not capable of giving clear instructions.
2) It is recognised that some patients detained under the Mental Health Act 2001 will not have the mental capacity to give clear instructions to their solicitor.
3) All solicitors have a general duty to act “in the best interests of the client” at all times. This includes a requirement to give the clients their best advice. In cases coming within the provisions of the Mental Health Act 2001, this might include a realistic assessment of the likelihood of the patient being discharged, or advice about possible steps towards discharge, but the client patient has the right not to accept that advice.
4) In deciding what is in the patient’s best interests, regard should be had to the following:
• The client should be encouraged to participate as fully as possible in the decision-making process,
• The person’s known past and present wishes and feelings and the facts that he or she would consider important,
• The views of other people/ professionals whom the solicitor decides are appropriate or practicable to consult in the preparation of the case, and
• Whether the purpose for which any action or decision with regard to the detention and treatment of the patient was made can be achieved in a manner less restrictive of that person’s liberty.
The solicitor should prepare the evidence on behalf of the patient as in any other case, defending primarily the patient’s liberty and right to treatment in the least restrictive setting.
The solicitor should avoid an overly collaborative approach with the tribunal, leading to too easy an agreement to detention in the best interests of the patient.
It is acknowledged that there are no hard and fast rules or correct answers to some of the ethical and other questions raised in representing patients who are detained under the Mental Health Act 2001. However, in general, the solicitor’s role is to act on the patient’s instructions, advocating the patient’s views and wishes, even if these may be considered by the solicitor to be bizarre or contrary to the patient’s best interests. It is for the tribunal to decide, on the basis of the evidence before it, from the patient and from all the professionals purporting to act in the patient’s best interests, whether the statutory criteria set out in the 2001 act are met.
One particular matter that raises ethical and conduct issues concerns the solicitor’s duty of confidentiality when acting for people whose capacity is impaired (see Catherine Martin and Diarmuid Doorley v The Legal Aid Board, Ireland, and the Attorney General, High Court no 2003/6150). The starting point must be that all solicitors are under a duty to keep the client’s affairs confidential. However, there are certain exceptions to this duty, which are mainly statutory exceptions or cases where the client has consented that information may be disclosed. There are also extremely rare cases where it may be necessary to disclose information without the client’s consent when a client discloses to the solicitor that they intend to do serious harm to themselves or to somebody else.
Where the solicitor feels it is essential and is in the client’s best interest to disclose information confided in him/her by the client, the solicitor should first try to obtain the client’s agreement to disclosure. If the client does not agree, but the solicitor still feels it is necessary to disclose the information, then the solicitor should inform the client that he intends to do so and discuss with the client whether he/she, the solicitor, should cease to act.
Solicitors who are concerned at any time about their own position on any matter of conduct should contact the Guidance and Ethics Committee helpline. The solicitor will be assisted so that he/she can make an informed professional judgment on the particular matter.
TRAINING FOR SOLICITORS
The commission provides training for solicitors on the panel and there is also a requirement for solicitors to keep their skills updated by undergoing relevant and appropriate training as required, in order to keep abreast of developments in the area. Solicitors who are not on the panel should themselves voluntarily undertake similar training.
PROFESSIONAL INDEMNITY INSURANCE
It would be essential for all solicitors who act as representatives for patients before the mental health tribunals to ensure that they are appropriately covered.
The selection criteria for membership of the legal representatives panel were:
• To hold a current practising certificate from the Law Society of Ireland in the case of a solicitor or be currently subscribing to the Law Library, Ireland, in the case of a barrister,
• To have professional indemnity insurance to cover an individual claim of up to €1.3m, and
• To be a practising solicitor or barrister who has had no less than three years’ experience as a practising solicitor or barrister, ending immediately before application.
At the time of application and at all times throughout their tenure, the legal representative must be practising. Any law firm who wished to participate in the scheme was requested to provide the above details for each legal representative who proposed to provide legal services on behalf of the firm under the scheme. All solicitors had to undergo a qualifying interview.
Mental Health and Capacity Task Force *
*This practice note was first published in January/February 2007 by the Mental Health Subcommittee of the Law Society (Guidance and Ethics Committee, Family Law and Civil Legal Aid Committee). It has now been revised and is published by the Mental Health and Capacity Task Force.
Further information about the Mental Health Legal Representative Panel is available from the Mental Health Commission website at www.mhcirl.ie