Ms Fiona Anderson:

I thank the committee for the opportunity to contribute. I have been with the mental health services for the past 30 years or so under the Mental Health Treatment Act 1945 and the Mental Health Act 2001.

I will start on the subject of involuntary detainment and the proposals relating to medical treatments and electroconvulsive therapy, ECT, under the 2001 Act. The Act requires that the responsible treating consultant psychiatrist explain to the involuntarily detained person in an understandable method and language the benefits, side effects and withdrawal symptoms of any proposed medical treatment or ECT. The detainee should be given a minimum of 24 hours, but ideally 48 hours, to consider the proposed medical treatment or ECT, weigh the pros and cons of the information, make an informed decision and communicate with persons to assist him or her. Where capacity is compromised, the detainee should be permitted to appoint a person whom he or she trusts to assist in any of the three ways listed below, having due regard, respect and consideration for the expressed will and preferences of the detainee and not the "best interests" approach, under which the person has no involvement in the decision-making process and outcome.

The three-tiered system is: appoint a person or persons to assist the detainee to understand the information relating to any proposed medical treatment or ECT so that he or she is in a position to make an informed decision; appoint a person or persons to assist the detainee to understand the information relating to any proposed medical treatment or ECT and make a combined decision with the person; and the courts appoint a representative, preferably somebody close to the person and trusted by him or her, to make decisions on his or her behalf. While enduring power of attorney is an option available to the person, the decision to appoint someone to act on his or her behalf should his or her capacity become compromised requires careful consideration because it is wide open to abuse in terms of finances and property, particularly where older persons are concerned.

It is important to note that it does not automatically follow that an involuntarily detained person also lacks the capacity to make decisions. A reservation is being sought to be placed on Article 12 of the UN Convention on the Rights of Persons with Disabilities, UNCRPD, on legal capacity, especially as regards psychosocial and mental health disabilities, which would be discriminatory and goes against Article 5 on equality and non-discrimination. It is important to note that all individuals, when given the opportunity and option to appoint a person to assist them, even with compromised capacity, are capable of making a decision or a combined decision and of trusting someone to make decisions on their behalf.

Advanced medical directives are not legally binding in mental healthcare as they are in general medical services and the 2001 Act overrides the Assisted Decision-Making (Capacity) Act 2015 in its present format.

Upon admission, an involuntary detainee is provided with a copy of a guide to the Mental Health Act 2001, known as the blue book. This is the most inappropriate time to give the booklet to a person because he or she may be too ill to read and understand the information regarding mental health tribunals or may be medicated to the hilt on admission. The term "mental health tribunal" may lead to a misunderstanding of what a mental health tribunal consists of and should be changed to mental health "review board" rather than a "tribunal panel".

A section 28 hearing should be explained fully to the involuntary detainee. More often than not an involuntary detainment order is revoked prior to the initial hearing. A detainee may not have what is defined as a "mental disorder" at the time of the tribunal and often a detainment order is revoked before a hearing can take place. Many involuntary detainees are not given the opportunity to have their voices heard and their human rights vindicated by a mental health tribunal.