Professor Matthew Sadlier:

I want to back up what Dr. Doherty said. It is about the concept of malicious intent. One concern that everyone working in the mental health service has is that some of the processes around involuntary admissions and the inpatient unit have become too pedantic and technical. Patients' health, well-being, risk and safety are often secondary to pedantic things like filling out the wrong date on the form, such as writing 1 January 2021 on New Year's Day when it is actually 2022. The risk to the patients, their families and society is completely ignored in those processes. If there is going to be a criminal prosecution, there must be some concept of malicious intent by the doctor. The concern is about having some phraseology or words within the legislation to ensure that people will not be prosecuted in a criminal way for what is, as Dr. Doherty said, an administrative or technical failure. If people are to be criminally prosecuted, there should be a concept that they have done something intentionally to harm another person. "Malicious intent" is a phrase included in other legislation that maybe provides some comfort. Without that wording and with the Mental Health Commission devising rules and guidance that could potentially lead to a criminal prosecution, those rules and guidance would need democratic oversight by the Oireachtas rather than allowing an agency to define what is a crime or not.