I have acted as a legal representative for ten years on behalf of clients detained involuntarily under the Mental Health Act 2001 (MHA) in psychiatric hospitals.
Mental health tribunals primarily review the involuntary commitment of such patients on a periodic basis.
A disconcerting aspect of my experience has been the mixed feedback from service users of their interaction with An Garda Síochána.
The gardaí are often first responders to an emergency crisis, where it can be a highly charged atmosphere. The force has saved the lives of some individuals with suicidal ideation through prompt and risky intervention.
Mental health services
It has even been reported that the gardaí have had to fill the void in mental health services in Wexford after the closure of St Senan’s Psychiatric Hospital.
Some clients have, however, complained of being subjected to excessive force, unlawful arrest, and false imprisonment. Other claims include that the gardaí made fundamental errors of judgement that a person posed a threat, when in fact he/she was very unwell (for instance, having an epileptic seizure), and the situation could have, instead, been defused.
Feedback from service users
Amnesty International noted feedback from service users and relatives who had voiced concern at excessive use of force by gardaí in some circumstances. In addition, the gardaí can be requested to assist in the removal of a person to an approved centre under sections 13(3) and (4). A psychiatric hospital or other in-patient facility is classified as an ‘approved centre’ under this statute. The Amnesty report found that this practice can add significantly to the distress, discrimination and prejudice experienced by the individual.
Irish case law is sparse on this matter, and access to justice may not be a realistic option for an aggrieved party who could lack capacity to provide instructions and are often impecunious litigants. The adversarial nature of the courtroom may be detrimental for an individual with a labile condition, with no automatic right to anonymity/reporting restrictions (See DF v Commissioner of An Garda Síochána). Present litigation is more challenging than an ordinary civil action. Section 73 requires that leave must first be granted by the High Court to institute civil proceedings.
Difficult to draw conclusions
It is therefore difficult to draw conclusions for these non-exhaustive reasons – in the absence of independent evidence, some of these allegations have been rationalised at tribunals to be attributable to symptoms like persecutory delusions, drug-induced psychosis, and the counter-argument that any force used may have been necessary and proportionate.
The present regime is, however, not robust enough. Reform should entail putting in place more rigorous safeguards to protect an extremely vulnerable group who often fear authority.
A person can be taken into custody under section 12 of the MHA 2001 where a member of the Garda Síochána has reasonable grounds for believing that the person is suffering from a mental disorder and that, because of the mental disorder, there is a serious likelihood of the individual causing immediate and serious harm to himself/herself or to other persons.
The National Disability Authority proposed that section 12 be amended so that the gardaí should be obliged to bring the person to an approved centre for assessment and, only where that is not possible, should the person be kept in garda custody, and then only for the minimum time it would take for an assessment by a medical practitioner to take place.
The practice of transporting a person to a garda station should be the last resort, as otherwise it can exacerbate mental illness and even criminalise behaviour. The Report of the Expert Group on the Review of the MHA 2001 recommended an expanded role for HSE authorised officers in initiating the involuntary admission process. These individuals should be experienced mental health professionals and contacted immediately by the gardaí to assess the circumstances and, if necessary, make the application.
The Memphis Crisis Intervention Team (CIT) is an innovative first responder programme that has become nationally known in the USA as the ‘Memphis model’ of pre-arrest and jail diversion. This programme provides law enforcement-based crisis intervention training for helping those with mental illness. Officers volunteer to receive 40 hours of training provided by mental-health clinicians, service users, family advocates and police trainers. Training includes information on signs and symptoms of mental illnesses, mental-health treatment, co-occurring disorders, legal issues and de-escalation techniques.
One of the recommendations in the Report of Joint Working Group on Mental Health Services and the Police 2009 was that a feasibility study on the appointment of crisis intervention teams jointly staffed by members of An Garda Síochána and mental health personnel should be undertaken and published.
There have been classes introduced for garda diversity liaison officers, including modules on mental health issues and intellectual disabilities. I would advocate a more ambitious target, including that the Memphis CIT model be fully implemented across Ireland, with drop-off medical centres operating seven days a week with a ‘no refusal’ policy. I would concur with the GRA’s position that members of An Garda Síochána should be fitted with body cameras.
The Garda Síochána Custody Record does not explicitly screen for mental illness. The Treatment of Persons in Custody Regulations also need to be modernised and avoid inappropriate descriptions such as ‘mentally handicapped’.
Hospital records contain in-patient physical assessment forms/charts that note scars, lacerations, signs of neglect, and so on, upon admission of a patient. Should photographs also be taken of serious injuries sustained prior to/on admission if the patient requests or even consents? Again, should clinicians be obliged to notify next of kin as per the rules for use of seclusion?
There is a six-month ticking clock for the Oireachtas to cure the unconstitutionality of section 15(3) of the MHA further to the recent AB v St Loman’s Hospital judgment.
Why not enact concurrently this much-needed reform and make amends for Ireland being the last EU country to ratify the UN Convention on the Rights of Persons with Disabilities?