Issue Arising Regarding The Detention Of Those With Limited Mental Capacity In Hospitals And Nursing Homes

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In a very complex judgement of the 17th October 2019, the Supreme Court in the “C” case addressed a very important question for hospitals, nursing homes and others entrusted with the care of patients (generally elderly) who may have limited mental capacity.

 

Outline of the case

In this very difficult case, family members of a 96 year old lady repeatedly challenged the actions of medical authorities caring for their mother.  In essence, they wanted to care for her at home and maintained that she wished to return home.  The hospital authorities felt that she wouldn’t be properly looked after at home and that she didn’t have the mental capacity to make a well-informed decision.

Ultimately the patient was made a Ward of Court (whereby her affairs are looked after by the Court) and the actions of the Judge dealing with the wardship were also challenged.  An application had been made by the HSE for the patient to be taken into wardship and the President of the High Court sent a “medical visitor” i.e. a psychiatrist whose job it is to report to the Court, to see the patient.  A complaint made was that the patient wasn’t allowed to see the report of the medical visitor nor was she given sufficient notice of the hearing at which she was made a Ward of Court.

 

Court of Appeal decision

The decision of the Court of Appeal on 2nd July 2018 was seen as very seriously restricting the ability of hospitals and nursing homes to detain patients who expressed a wish to leave but who the hospital authorities did not feel had sufficient mental capacity.  The Court found that they had no authority to stop a patient leaving. At no time was it suggested that the patient suffered from a mental illness whereby she could have been detained against her will under the Mental Health Acts

 

Supreme Court decision

Ultimately the Supreme Court came to consider all the various strands of the case and gave judgement on the 17th October last.

An important influence on this case and indeed many others in this area is the European Convention on Human Rights and particularly Article 5 (1) which guarantees the right to liberty and security of every person and states that nobody may be deprived of his liberty save in specified categories of cases and “in accordance with a procedure prescribed by law”.

The “paternalistic” approach of the Courts in the past in dealing with the affairs of people who have limited mental capacity is increasingly under attack as failing to afford sufficient importance to the right of individuals to make their own decisions.  In line with this, the Assisted Decision Making (Capacity) Act, 2015 which was passed in 2015 but which hasn’t yet come into effect, will do away with the wardship system in an effort and try and ensure that a person’s own wishes are respected even in circumstances where others feel that their decisions are foolhardy.

The Supreme Court came to the view that in the history of this case, Courts have been involved in making decisions about the patient and made assumptions about her wishes and best interests without making a proper independent investigation or assessment of her views.

The Court emphasised that because a person’s mental capacity is limited, this doesn’t mean that there can be a total disregard of their wishes.

 

Principles set down by the case

The Court made clear that even though somebody may have had the best interests of a patient in mind, if they are kept in an institution against their express wishes, then they have been detained and the Court may be asked to decide whether that detention was sanctioned by the law.  In this case the Court found that it was clear that the patient was detained, as she was prevented from leaving the hospital. People who are mentally impaired have the same rights regarding the deprivation of liberty as everyone else.

The Court found that if a hospital concludes that the patient lacks mental capacity to make a decision, it must, if it has serious concerns for their welfare, seek the assistance of the Court within a reasonably short time if it wants to detain a patient who expresses a wish to leave.  The Court noted that in most cases two weeks would be too long.  The appropriate way to seek the assistance of the Court would be to contact the Wards of Court office and notify them of their concerns.

 

Pressure from families

If hospital authorities believe unreasonably grounds that third parties (generally family members) are unduly pressurising a vulnerable patient to comply with their instructions to leave, the Court felt that it would be legitimate to prevent them leaving for a brief period until the situation is assessed. This is permitted by following the “doctrine of necessity”.  This allows, for example, hospital authorities to treat a patient who is unconscious without their getting consent in emergency situation.

The hospital or nursing home must then assess whether the patient has mental capacity.  If it decides that the patient does not have mental capacity or has impaired mental capacity and is potentially vulnerable to dangerous conduct by third parties, then it should seek the assistance of the Courts. This is so even where they manage to persuade the patient to stay if they know that the patient doesn’t have mental capacity.  In the C case the Court came to the conclusion that while there was nothing to stop the hospital persuading the patient to stay, they didn’t give proper consideration to whether, having persuaded her, she had the mental capacity to agree.

Needless to say, if the hospital authorities come to the conclusion that a patient has mental capacity, the hospital must let the patient make their decision.

 

Steps for hospitals/nursing homes to take

The Court set out a series of steps which should be taken when a controversy arises with a long stay patient:

  1. The first question is whether the patient truly wants to leave or is in reality being removed by third parties in circumstances where there is a real risk to their health and welfare.  The hospital can prevent them being removed.
  2. If a patient genuinely does want to go and has the mental capacity to make that decision, all the hospital can do is try to persuade her to stay.
  3. If the hospital is concerned that the patient lacks mental capacity they must address that issue. Persuasion will not generally suffice because the lack of mental capacity implies an inability to process the information that they provide and make an informed decision.
  4. The hospital is entitled to take some brief period to make its own assessment of mental capacity.  The Court recommended that a person be found who hasn’t been involved in any dispute regarding the patient who could act as her intermediary or advocate.
  5. If it is decided then that she lacks mental capacity, the hospital must bear in mind that it does not have the power to detain her or make a decision on her behalf and must then seek the assistance of the Courts if it feels that the patient is at risk.  The doctrine of necessity permits the hospital to keep the patient in the hospital in the interest of their personal safety provided that it lasts no longer than is necessary to take appropriate legal steps.

 

It was hoped that the Supreme Court’s decision might give a definitive answer to the proprietors of nursing homes and hospital in relation to patient, often elderly, who lack mental capacity.  Perhaps it was asking too much given the complexity of the issues concerned.

 

For example, the Court doesn’t deal at all with the issue of the patient who lacks mental capacity but doesn’t express a desire to leave.  Neither does it deal with the patient who lacks mental capacity and who intermittently expresses a desire to leave but can be relatively easily redirected.  Nor does it deal with the situation of the patient who lacks mental capacity but who might express the desire to leave the nursing home temporally to go for a walk, when this wouldn’t be safe for them.

 

It is also of concern that if the principles of the decision were to be applied, the resources of the Wards of Court office would be very severely stretched by many requests for directions from the Court.  The process of taking someone into Wardship or even getting directions of the Court is generally quiet a complex and slow one involving significant cost for whoever makes the application in paying for medical reports and arranging legal representation. The procedure may be too slow in many cases to be effective.

 

Nursing homes and hospitals will continue to make pragmatic decisions such as keeping their outside exits locked and attempting to persuade patients (with the assistance of their families) that their best interests are served by remaining in the nursing home where they can be properly looked after. The C case has not made these decisions any earlier.

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