Jamaica Gleaner
Published: Monday | November 19, 2012
Home : Flair
Managing the affairs of a mentally ill person
McGregor
In researching this topic, I came across several quotations from famous persons such as Mahatma Ghandi, Pope John Paul II and Sir Winston Churchill, all of whom agreed that a society will be judged by how it treats its weakest members. Immediately, the young, the elderly and the ill came to mind. Of these groups, I chose to focus on the treatment of mentally ill persons as the subject of today's article. In particular, I will consider whether one aspect of the existing legislation is adequate - appointing a committee to manage the affairs of a mentally ill person.

At some time in our adult lives, many of us might face the challenge of caring for a relative who is no longer capable of attending to their own affairs as a result of mental impairment. Often, the diagnosis is Alzheimer's or some form of dementia. Persons who are so afflicted may still have the means to continue to attend to their own needs, but often there is no one who has legal authority or access to their resources.

Usually, funds cannot be withdrawn, investments cannot be managed and property cannot be sold or rented. Where this happens, one must look to the provisions of the Mental Health Act to have the court appoint an appropriate individual or individuals to manage the affairs of that person (called a patient in the act).

The persons who can make applications under the act are the attorney general or a relative of the patient; and that patient must be someone who is suspected of suffering from a mental disorder. That mental disorder must be "a substantial disorder of thought, perception, orientation or memory which grossly impairs a person's behaviour, judgement, capacity to recognise reality or ability to meet the demands of life which renders a person to be of unsound mind".

According to the act, the closest relative of the patient means the husband or wife (husband or wife includes a person with whom the patient has resided for at least six months). However, if there is no husband or wife, any of the persons named in (a) to (h) below, in descending order of priority, may apply:

a) son or daughter

b) father

c) mother

d) brother or sister

e) grandparent

f) grandchild

g) uncle or aunt

h) nephew or niece.

The act makes it clear that the nearest relative (if that person is not the husband or wife) must be at least 18 years of age and ordinarily a resident in Jamaica. Otherwise, for the purposes of the act, that person will be treated as if he was dead.

I came across an interesting case which was decided in the supreme court in 2009. The patient, Horner, attempted to reverse the order which appointed a committee to manage his affairs. He complained that the order was made without him being notified that an application had been filed. For this reason, the court explored the need for service of an application made under the act and the judge concluded that the hearing could proceed after service of the claim on the patient himself, on the person with whom the patient resides or on some other person entitled to conduct proceedings on the patient's behalf. However, the hearing could also proceed without the patient or anyone else being served at all.

Although not affecting the outcome of the case, the judge made two comments which, if taken on board, could improve the effective use of the act and prevent it from being abused. The first has to do with the heavy reliance on the report from a medical doctor as the basis for making the order. While taking care to state that the integrity of most such medical doctors is not in question, the judge recognised that the interests of the patient could be better served by having a social enquiry report prepared by an independent agency regarding the patient's circumstances where the doctor's reputation is not known.

The second comment was that a time limit be placed on the need for the person managing the patient's affairs to provide an accounting to the court of their stewardship of the patient's affairs.

I will make one comment regarding the adequacy of the legislation in its present form. The act provides no scope for a caregiver who is not related to the patient to manage his affairs. In some cases, this has been a source of hardship, because the only option is to appoint the attorney general under the Mental Health Act or the administrator general under the Administrator General's Act. Is it time to consider whether there may be a fit person, who is not related to the patient, who could be appointed as the patient's guardian, with sufficient safeguards in place to ensure accountability and transparency?

There are some persons who argue that the entire legislation should be reviewed. I would welcome comments as to ways in which legislation could be amended to ensure that the care for mentally ill persons is improved.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield Deon and Co. Send feedback and question to lawsofeve@yahoo.com or lifestyle@gleanerjm.com




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