Ms Áine Flynn:

As we have dealt with in our submission and Mr. Farrelly referred to in the opening statement, we are very keen to see a better alignment between the mental health legislation and the Assisted Decision-Making (Capacity) Act. In our submission, we refer to two aspects in which we think this is important. Professor Flynn also referred to the removal of the viability of an advanced healthcare directive where somebody is detained under the mental health legislation. The DSS of the Mental Health Commission has been very consistent in saying that is discriminatory, it offends against parity and it should be removed but I understand that is receiving attention.

Another concerning section in the Act is section 136, which effectively disapplies access to supports under the 2015 Act in the mental health setting, but I believe that is also receiving attention. We hope that it will be amended in the final version of this legislation.

I do not know if it is appropriate to refer to some of the matters that have come up in colleagues’ answers today, but regarding access to legal representation, which Mr. Harris raised, there is provision in the Act for access to legal aid for the relevant person who is the subject of an application under Part 5. Mr. Harris also referred to some aspects of Part 10 and the detained ward. I understand that part of the Act is also receiving attention. On wards more broadly, the review of their circumstances under Part 6 is the responsibility of the Office of Wards of Court, but it has begun to engage in communications with those current wards, who number approximately 2,150. That would be ongoing, as the review continues, but that is with the Office of Wards of Court.

I am in a position to pick up on the point about the excessive bureaucratisation, as exemplified under the removal of medical and treatment decisions from enduring powers of attorney. Merely by way of clarification, that was not one of our own submissions. The idea is not to create obstacles, but rather to promote clarity. At the moment, when it is possible to plan ahead, in terms of healthcare by way of an enduring power of attorney and an advanced healthcare directive, there were a concern that the two are not necessarily aligned in terms of the protections and requirements under parts 7 and 8 of the Act. In addition, at the moment, as the Act reads, enduring power of attorney cannot extend to a refusal of life-sustaining treatment, whereas an advanced healthcare directive can. It was with that in mind other colleagues made the submission. It was better if advanced healthcare planning around medical treatment was confined just to an advanced healthcare directive, not to make things more difficult, but actually to make them smoother.