Ms Orla Keane:

When we got the original heads of Bill, the intermediate orders were not in it. They were in the revised Bill we received in March or April of this year, which was a bit of a surprise. The issue is that to involuntarily detain somebody against his or her will is a major issue and can only be done in accordance with the law. There are very specific criteria for involuntarily detaining somebody and the revised criteria for that are set out in section 8. This Bill allows for the involuntary detention of a person because of mental health issues. The issue that was raised by the expert group and which has been put in by way of the intermediate admission and renewal orders relates to capacity. The remit of this legislation is being fundamentally extended to deal with issues of capacity. Those issues have been dealt with in the 2015 legislation. The commission, in its review of the legislation, has also made a number of recommendations to the Department. One applies to a situation of somebody who is either voluntarily or involuntarily detained and a lack of capacity is recognised. We have suggested a mechanism to allow such a person to transfer or transition to the 2015 Act.

Our concern is that people under this Act are going to be detained because of the criteria for mental illness. There is then a new category of people who the Department is saying are not detained but are going to receive the same oversight. Effectively, the commission will then be reviewing people as to their capacity. That is not one of our fundamental functions. We are also concerned about the fact that the commission is the owner or operator, for want of a better phrase, of both the Mental Health Act and the Assisted Decision Making (Capacity) Act. We have a fundamental difficulty because we would be setting up a parallel process of reviewing capacity under the Mental Health Act when all those issues should be dealt with under the 2015 Act.

We sent a memo to the Department setting out our concerns in that regard. When we got the general scheme of the Bill, as approved by Cabinet, we noted the problem was still there and, on that basis, we then brought it to the commission members.

We also have a fundamental concern about the situation of a person who does not meet the criteria for detention, who may lack capacity and is going to be detained.

I do not know what legal advice has been obtained by the Department as it has not shared that with us. We would have a concern that, legally, that might not even be sound. Fundamentally, it is introducing a new issue about assessing capacity into the mental health legislation, which is not the function of the legislation. Second, it is introducing a parallel system of capacity, which has already been dealt with in the 2015 Act. Our concern is that it would undermine the 2015 Act.

If I may add a further point, our further concern is that even if these orders were introduced and they were intermediate admission orders for 21 days, in order for the person to be assessed in terms of capacity to see if he or she should be brought under the 2015 Act, that would be something, but the scheme also proposes these intermediate admission orders would be extended for three months or a further six months and that goes completely against-----