The following guidelines are intended to assist solicitors who are involved in the representation of patients before Mental Health Commission ("MHC")(‘the Commission’) tribunals. The MHC tribunals were established under the Mental Health Act, 2001 (as amended) ("Mental Health Act") to review all involuntary admissions of patients to hospitals or psychiatric units ("Approved Centres"). The Mental Health Acts provided for the statutory review of an involuntary patients' detention in an Approved Centre recognising that the right to liberty is a constitutional imperative and that the involuntary detention of a person must be justified under the Mental Health Acts.  If the detention is found by the MHC tribunal (3 member panel) to be unlawful the order (either the admission order or the renewal order) is revoked and the patient can then legally leave the Approved Centre or they may elect to remain in the Approved Centre as a voluntary patient.  

Most legal representatives of patients before a MHC tribunal are appointed members of the MHC's panel of legal representations (see below). Since representation of patients before the MHC tribunals is not exclusive to panel members, these guidelines will be of assistance to other solicitors. 

The Law Society aims to ensure that solicitors maintain the highest possible standards in the preparation, presentation and conduct of their clients’ cases before the MHC tribunals. Since some patients may not raise concerns about the performance of their legal representatives, solicitors have an obligation to ensure that proper standards are maintained at all times and that the patient /client is represented in a professional and ethical manner. 

The MHC issues regular guidance and updates to tribunal members and legal representatives to ensure that all professional attendees at the MHC tribunals are aware of current guidelines and up to date case law on the area of mental health law in Ireland and their obligations to ensure that they remain up to date with same.  

Retainer and representation

Solicitors can act for patients even when the patient does not have legal capacity to enter into a contract because the Mental Health Acts have provided that the professional arrangement between the solicitor and their client/patient is for the solicitor to provide individual professional representation to the patient having regard to the patient's instructions and the patient's best interests.  The Mental Health Acts provide that the professional contract for the engagement of the professional services of the solicitor is with the MHC and it is the MHC that discharges the solicitor's professional fees. 

As to whether the solicitor acting for a patient before a MHC tribunal should act in accordance with the patient's instructions or the patient's best interests, practitioners are referred to up to date guidance and case law published by the MHC at www.mhcirl.ie.

A solicitor should act in accordance with the patient’s instructions whilst recognising that some patients detained under the Mental Health Acts will not have the mental capacity to give clear instructions to their solicitor.

• A legal representative should encourage their client to participate as fully as possible in the decision-making process and to attend at the MHC tribunal.
• The solicitor should explore with their client what details about their client's medical and social history and their present wishes and feelings should be disclosed and discussed before the MHC tribunal. 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 i.e. revoke the order and remain in hospital as a voluntary patient and/or negotiate for the patient increased authorised leave from the Approved Centre.
• The solicitor for the patient should avoid an overly collaborative approach with the MHC tribunal and should be mindful at all times that the involuntary detention of a person against their will must be justified having regard to a full and rigorous scrutiny of all aspects of the patient's detention.
• 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 unusual or contrary to the patient’s best interests. It is for the MHC tribunal to decide, on the basis of the evidence before it, from the patient and from all the professionals acting for the patient, whether the statutory criteria set out in the Mental Health Acts are satisfied.

Confidentiality

All solicitors are under a duty to keep the client’s affairs confidential, but the appointed solicitor is permitted to exchange appropriate material pertaining to the patient/client with the MHC in relation to the MHC tribunals and related matters. The solicitor representative shall ensure that all materials in their possession are retained in a safe and secure manner and are returned to the MHC as per the MHC's guidelines. However, there are certain exceptions to this duty, which are mainly statutory exceptions or cases where the client has consented that the 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/she 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 MHC 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. Any solicitors who wish to practice in the area of mental health law and appear before MHC tribunals should undertake relevant training in mental health law.

The MHC invites applications for appointment to the panel of legal representatives as and when the panel requires additional members and details of the application and selection criteria and process are published at www.mhcirl.ie. 

Further information about the Mental Health Legal Representative Panel is available from the Mental Health Commission website at www.mhcirl.ie

This practice note is intended as a guide only and is not a substitute for professional advice. No responsibility is accepted for any errors or omissions, howsoever arising.