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21 November 2006

Module 4: Mental Health Tribunals

What are the guidelines/protocols regarding consent for an involuntary patient who does not have the capacity or is too unwell to make an informed decision regarding consent? (a) with regard to instructing a solicitor for representation purposes? (b) with regard to consent for the solicitor to view the patient's notes? Is it order for the treating Consultant Psychiatrist to make these decisions if it is the best interest of the patient?

 

The Mental Health Act 2001 does not provide for patients without capacity.

With regard to taking instructions from a patient without capacity, the solicitor can only do as instructed, if there are no instructions or the patient is not able to do so, the solicitor will represent this patient to the best of their ability.

With regard to the solicitor accessing notes from a patient who has no capacity to consent, the solicitor will have to wait until the Mental Health Tribunal sits in order for the Tribunal to order the release of the notes to the patient’s solicitor.

 

Please see the Law reform Commissions Consultation Paper on Vulnerable Adults and the Law: Capacity (May 2005) (LRC CP37-2005)   at www.lawreform.ie