Jim Daly (Cork South West, Fine Gael) | Oireachtas source

Section 2 of the Bill substitutes a new definition of voluntary patient which explicitly includes a reference to the need for such patients to actually consent to such admission. Currently, the definition of voluntary patient in the Mental Health Act 2001 states that a voluntary patient is not subject to an admission order. In other words, a person is a voluntary patient if he or she is not an involuntary patient subject to detention. This definition makes no reference to consent. In order to be compliant with the UN Convention on the Rights of People with Disabilities and in line with the provisions of the Assisted Decision-Making Capacity Act 2015, it is necessary to amend the definition of voluntary patient to include a specific reference to the need for a person to consent to admission.

However, this change cannot proceed on its own without any associated changes being introduced. The suggested definition of voluntary patient would immediately result in some people being denied inpatient treatment. Such persons would be those who lack capacity and, therefore, cannot provide consent. While they would need inpatient treatment, they would not be sufficiently mentally ill as to warrant admission as an involuntary patient. As they lack capacity and cannot consent to treatment, they could not be voluntary patients but, equally, as they do not suffer from a mental disorder within the meaning of section 3 of the 2001 Act, they also could not be detained. Such patients are often referred to as the "compliant incapacitated". Before any new definition of voluntary patient which explicitly refers to capacity, we need also to include lawful measures which ensure that at no stage would the compliant incapacitated be denied treatment.

In this regard, my Department is currently working on deprivation of liberty safeguards, intended to allow persons without capacity to be lawfully admitted to residential care and to psychiatric hospitals for treatment. It is essential that the change to the definition of "voluntary patient" occurs simultaneously with the commencement of provisions relating to deprivation of liberty. Work is under way on these safeguards and my Department is in discussion with the Department of Justice and Equality about including these provisions in the Assisted Decision-Making (Capacity) Act 2015. I assure Members here today that this is a priority change for my Department. The fact that the Assisted Decision-Making (Capacity) Act 2015 has not yet commenced allows us time to finalise the necessary changes as without such commencement, and the roll-out of the decision support service, the planned deprivation of liberty measures cannot begin.

Where this important change is concerned we agree that it is a necessary change, but we ask Members to press the pause button because we need to finalise the deprivation of liberty safeguards in tandem with this change, otherwise we will be legislating to deny certain people inpatient psychiatric treatment. This, obviously, cannot be allowed to happen. It is my intention to revisit this provision on Report Stage.