Mr. John Farrelly:

The Mental Health Commission welcomes the opportunity to speak to the committee today on the scheme to amend the Mental Health Act. The commission is an independent statutory body established in April 2002 under the provisions of the Mental Health Act. The principal functions of the commission are to promote, encourage and foster the establishment and maintenance of high standards and good practices in mental health services and to take all reasonable steps to protect the interests of persons detained in approved centres. We register and inspect all approved mental health centres in the State. The commission's vision, as set out in its strategic plan is the highest quality mental health and decision-support services underpinned by a person's human rights. The remit of the commission was extended by the Assisted Decision-Making Capacity Act 2015, which provided for the establishment of the decision support service.

The Bill will establish a modern statutory framework to support decision-making by adults who have difficulty in making decisions without help. As the independent regulator of mental health services and the State agency with responsibility for the 2001 Act, it is an enormous privilege to input into the legislation which shall assist in improving mental health services in Ireland for years to come. In July and August 2019, the Department provided the commission with copies of the heads of a Bill to amend the 2001 Act. This was a unique opportunity for which I thank the Department and the Minister. On receipt of the heads of the Bill in July 2019, we established an executive working group, the terms of reference for which were approved by the leadership team and the board of the commission. There then followed a series of meetings of the working group on each part of the heads and certain specific sections, such as the guiding principles and capacity and consent. The working group then met the commission’s legislation committee to look in detail at all parts. A draft submission was presented to the board of the commission in February 2020 and, subject to certain amendments, the submission was approved and sent to the Department of Health in early March 2020. A similar process was then followed on the proposed new part of the 2001 Act relating to children.

We raised a number of key points in our submissions. The commission adopted a practical person-centred and rights-based approach when reviewing the heads of Bill and making its submissions to the Department. We identified and raised issues in almost every section of the Act. The executive summaries provided to the committee give an indication of the issues the commission has sought to address. Some of the key changes are to ensure parity of mental health issues to general health issues and to extend the regulatory remit of the commission to 24-hour residential mental health services and all community mental health services.

When the 2001 Act was reviewed by the expert group, the part relating to regulation did not receive the same attention as some of the other parts. This is not a criticism but a comment. The commission recommended that mental health services be divided into three categories. These are approved in-patient facilities, which are covered at present, approved community residences, which the Department has confirmed in writing should be subject to regulation, and approved community mental health services, which include all the community services set out in A Vision for Change and Sharing the Vision. The commission also recommended that the relevant part of the 2001 Act should be retitled "Regulation" and the various stages of regulation, including registration, inspection, monitoring and enforcement, should be clearly set out. The commission also recommended that the approved centre regulations of 2006 be amended in parallel to the Act. It also sought to separate measures relating to restrictive practices from treatment measures. The commission does not agree with the inclusion of restrictive measures in Part 4 of the 2001 Act and recommended that a separate part of the Act deal with restrictive practices and the rules relating to them. Treatment and restrictive practices are two different things.

We also sought to reform the provisions relating to consent, capacity as linked to the 2015 Act and the administration of medication. This part of the heads of the Bill was the subject of significant discussion, with the result that a number of amendments have been recommended. Issues considered included the 2015 Act, the changes in the area of consent and the rights-based approach advocated by the UNCRPD. The commission wants to ensure that guiding principles are introduced to replace the best interest test and that they are patient-centred and work in the context of mental health. The commission also wants to ensure the remit of the mental health tribunals and those of the Circuit Court for the benefit of patients. This is often forgotten but it is a significant function when people are deprived of their liberty. The commission recommended a number of smaller changes in this area to include supporting the move to all applications for involuntary admission being made by authorised officers, who are people who understand mental health, with no applications to be made by An Garda Síochána. We recommend that the section on bringing a person to an approved centre against his or her will be the subject of review by a mental health tribunal, which is now called a review board, involving the other members of a person's team in the admission or renewal process.

It is worth noting the commission has objected to the insertion of intermediate admission and renewal orders, which were not in the heads of the Bill as provided to us in July 2019. These provisions were suggested by the expert review group to fill a gap that existed prior to the 2015 Act but the 2015 Act has addressed the issue of capacity. Therefore, it is the commission’s view that these provisions are no longer required. Furthermore, in the commission’s opinion the provisions in the general scheme would undermine the 2001 and 2015 Acts and fundamentally change what is being proposed.

The board of the commission is concerned at the inclusion of these provisions. They go against everything that we are trying to achieve in terms of parity for people with mental health issues.

In regard to the new Part relating to children, the commission welcomes that the Department of Health and the Department of Children, Equality, Disability, Integration and Youth are working on various aspects of this new Part of the Act. There are number of issues which the commission believes are important to include, such as that each child should be appointed a legal representative from the beginning of an involuntary detention process to its conclusion. The commission is of the view that this is the best way to ensure that the voice of the child is heard. Furthermore, the commission could extend its legal aid scheme to deal with the appointment of such legal representatives. There needs to be separate provisions relating to children under 16 years and those who are 16 to 17 years old. There should be a statutory provision for the furnishing of information to the children and their parents-guardians. The provisions in the 2001 Act need to stand alone from those in the child care legislation and there is need for greater involvement of children in the process in terms of attending court remotely and having a say in proceedings.