Dr. Lorcan Martin:

We are in favour of patient autonomy and of patients taking an active role in the management of their mental illnesses. That is the most important thing. Often you will see someone becoming unwell and they will still have capacity. They will have the capacity to say they do not want a particular treatment or to go to hospital and if they have capacity, you have to respect that. The difficulty we have with the legislation in its current format is that there is a subgroup that no longer has capacity but that is also not a risk to themselves or somebody else. They no longer have the level of insight required to realise how ill they are and it is that group which we are particularly concerned about. The immediate and serious risk of harm to self and somebody else is easy to identify. It is generally telegraphed, verbalised or seen and observed by family, carers or whoever. There will be examples of people who are becoming increasingly more depressed or who perhaps are displaying the warning signs of a relapse and schizophrenia. If those people have capacity, you have to go along with them. You can advise, support and psycho-educate them but if they still have capacity, they have autonomy.

There is a subgroup in between that no longer has that level of capacity but that does not represent a serious risk of harm to self or others. They are the ones who do not get the treatment to which they are entitled but to which they do not have the capacity to refuse. They would tend to make up the bulk of our involuntary missions and they are an at-risk group because, as I said earlier, when you do a risk assessment, it is a risk assessment for now. We do not know what will happen tonight or tomorrow so we cannot sit tight and watch somebody progress because by the time they lose capacity or insight, they are already seriously ill. You are waiting for someone to get more seriously ill in that scenario. You might not be around to deal with it when that immediate and serious risk kicks in. Families and carers may be so used to the individual's behaviours or idiosyncrasies that they do not notice the subtle changes that indicate a serious risk, and that is where the tragedy happens. The other issue is that even if a risk never occurs, there is this patient going around who is seriously ill and who might be spending recklessly, as Dr. Rafiq mentioned. They might also involve themselves in reckless sexual behaviour, which puts them at all sorts of risk. I have seen patients standing naked in the street or in the local shopping centre when they have become unwell and the Senator can imagine the sheer level of social embarrassment for that person when he or she becomes well again. There have been situations where people have behaved like that and then attempted suicide afterwards when they realised what they did.

There is a significant cohort, however small, of people who require that level of intervention, namely, involuntary admission, who do not represent the traditional, immediate and serious risk of harm to self or others. The Senator is right that when someone has capacity, they must be negotiated with. You advise and educate them, you give them your opinion and you involve advocates, carers or whoever else they trust, and you encourage them to make the best possible decision. You cannot make sure they make the best possible decision because even if people make unwise decisions, if they have capacity it is their decision.

I am trying to conceptualise examples. Dr. Martin mentioned scenarios like being naked on the street. Without breaking anyone's confidentiality, what kind of actions would not fall under a serious risk to someone or others but that Dr. Martin believe would be reasonable enough to involuntarily detain someone?