Mr. John Farrelly:

The Mental Health Commission is an independent statutory body established under the provisions of the Mental Health Acts to promote the establishment and maintenance of high standards in mental health services and to uphold the rights of persons detained in approved centres. The Mental Health Commission's remit was extended by the Assisted Decision Making (Capacity) Act 2015 to include the establishment of this new decision support service. The director of the DSS, Ms Áine Flynn, is attending the committee.

Ms Flynn and her staff in the DSS are employees of the commission, with a distinct but complementary statutory remit. Until shortly before the passing of the 2015 Act, the intention was that the DSS would be located in the Courts Service. It is my view that the commission is a more compatible home for the DSS as the commission has been able to share its valuable experience of building a service to implement long-awaited, rights-based reforms.

The board and the executive of the commission have been strongly supportive of the DSS establishment project. This is and has been a multifaceted project based on an approved, time-bound and costed plan. It is worth stating that the business processes, IT systems, communications and draft codes of practice of the DSS have been developed based on assumptions about the content of the amended Act. At this stage, any major divergence from the present general scheme would impact on our timeline to the commencement of operations. We would hope to commence in June this year.

During the DSS establishment project, the service has had the opportunity to engage extensively with the Department of Children Equality, Disability, Integration and Youth and previously with the Department of Justice and Equality on amendments to the 2015 Act. At all times, this engagement has been with a view to ensuring that the Act functions in a way that is person-centred and provides ease of access to the new support framework.

We are pleased to note that a number of our proposed amendments are reflected in this general scheme. As set out in our submission to this committee, we have particularly welcomed the following proposals. Amendments with regard to the director’s investigation of complaints clarify that informal resolution rather than escalation to the court should be available where appropriate. The amendments also provide a means of temporarily suspending a decision supporter pending investigation in urgent cases.

It was our submission that the repeal of section 43(3), which provides for the court to confer on the director responsibility for custody, control and management of the relevant person’s property, albeit in limited circumstances, is incompatible with the director’s other functions and, indeed, had echoes of the approach in wardship.

We believe the revision of the process in relation to enduring powers of attorney should provide greater certainty for persons planning ahead.

The improved position of current adult wards whose cases will be reviewed under Part 6 is welcome. We understand there are approximately 2,150 adult wards and that approximately 40% hope to apply to have their cases reviewed as soon as possible after commencement.

The improvements in access to the court and to ongoing review are important, as is the repeal of section 57 with its concerning reference to "a class of wards". The removal of provisions around the purported exercise of restraint by attorneys and decision-making representatives is also very important. In this context, we reiterate the urgent need for protection of liberty safeguards for institutional settings, which we understand are to be developed as stand-alone legislation by the Department of Health.

In our submission, we refer also to a number of minor outstanding matters and to more substantive matters not included in this general scheme, on which we understand work is continuing. The commission is particularly concerned about the interface between the 2015 Act and the Mental Health Acts. We must emphasise that access to the supports available under the 2015 Act cannot be withheld from persons in the mental health setting.

I reiterate that the commission and the DSS team is appreciative of the contribution we have been able to make to this amending legislation and the invitation to address this committee. The 2015 Act is ambitious and complex legislation. From our extensive and diverse stakeholder engagement, we are aware that there are varying opinions about the 2015 Act, whether it goes too far or not far enough, especially with regard to achieving compliance with the UNCRPD. There may well be matters that need to be revisited in future and it is part of the director’s duties to keep the operation of the Act under ongoing review. It is, however, deeply principled legislation and we know that a huge number of persons are waiting impatiently for its delivery. We are pleased to assist with this step forward on the journey to its long-awaited commencement.