Ms Orla Keane:

The current test in the Act is "best interests", which means that everything done for the person under the Act, either voluntary or involuntary, should be done in their best interests. That was interpreted by people and the courts in quite a paternalistic way. It was thought that we should move away from that concept and adopt a new concept of guiding principles. One of the Senator’s colleagues, who promoted the Mental Health (Amendment) Act 2018, introduced that concept, which also aligns with the guiding principles in the 2015 Act.

The guiding principles here set out how people should approach dealing with matters on behalf of persons. The person should be involved and if he or she has difficulties comprehending things, all relevant supports should be given. One should not use more information than is possible and one should not give information to other people unless it is relevant and necessary. This is very much bringing the person into the centre and having his or her will and preference as a key issue in how one goes about making decisions for the person if he or she is, as in some cases, an involuntary patient. The guiding principles are also to apply to voluntary patients.

This is very much a new form of best interests in the guise of guiding principles. It takes some learnings from the 2015 Act and moves away from the paternalistic approach where other people know best what the person wants to one where the person is brought to the centre of the process and his or her will and preferences are looked at.