Mr. John Farrelly:

The Mental Health Commission welcomes the opportunity to speak to the committee again on the general scheme to amend the Mental Health Acts. I am accompanied by Gary Kiernan, director of regulation, and Orla Keane, general counsel for the commission. The commission is an independent statutory body with the principal functions to promote, encourage and foster the establishment and maintenance of high standards and good practices and to take all reasonable steps to protect the interests of persons detained in approved centres. The remit of the commission was extended by the Assisted Decision-Making (Capacity) Act 2015, which provides for the establishment of the Decision Support Service, DSS, for adults with capacity difficulties.

The commission adopted a practical, person-centred and rights-based approach when reviewing the heads of Bill and making its submissions to the Department of Health and this committee. The commission seeks to ensure parity for persons with mental health issues and believes this general scheme seeks to do that in a number of respects. The commission also wishes to ensure we have a primary focus on care and treatment, not on risk and coercion.

The commission acknowledges and agrees with the arguments made by several parties that the proposed amendments shall require additional time and resources, but we reject this argument as a reason for not making the changes. Mental health services have not been given the priority that they require. The time for change is now and we hope a recommendation can be made that significant investment is required at all levels of mental health services to ensure a fundamental change in how these services operate and benefit those who receive care and treatment.

I want to touch on what we perceive are some of the key issues raised during the pre-legislative scrutiny to date, the first being the proposed new criteria for involuntary detention. The commission wishes to note that this is a very complex issue and it needs to be considered in the context of various other sections of the general scheme, and we can speak to that if required. The commission notes the issues raised by various other parties, to include the medical practitioners, and we are happy to support and-or advise the Department, where required, in regard to discussions with these parties to ensure clarity and understanding and to ascertain if there is a way forward that works for the person at the centre of the process and the related parties.

The commission remains strongly opposed to any proposal to introduce an intermediate category of patient. We believe this proposal would infringe the rights of service users. These provisions were suggested by the expert review group to fill a gap that existed prior to the Assisted Decision-Making (Capacity) Act but as that Act hopefully comes into force and will address the issue of capacity, these requirements no longer need to be addressed in the 2001 Act. In fact, we believe these new provisions would undermine both the 2001 Act and 2015 Act and fundamentally change what is the intention of both pieces of legislation. The inclusion of these provisions goes against the objective of what we are trying to achieve as a country in terms of parity for people with mental health issues.

With regard to the extension of the Mental Health Commission’s remit to deal with complaints, this matter was considered by the executive and the board of the commission and, following this, we communicated with the Department of Health and this committee. We do not believe the commission should take on the role of a complaints body, given its key functions as the regulator of mental health services and the administration of the mental health tribunals. In fact, we query why there is a need for a different process for dealing with complaints relating to treatment of mental health issues as opposed to treatment of general health issues. This would appear to go against the principle of parity which both the commission and the Department are seeking to attain. The commission is conscious that anything that seeks to differentiate those with mental health issues could be seen as a regressive step.

Currently, each approved centre actually has a complaints procedure. In the HSE there is the “Your Service, Your Say” mechanism and there is also a mechanism to seek a review of the care and treatment, where required.

If a person is not satisfied with the process provided by the services, he or she can refer certain matters to the Ombudsman. Consideration might be given to extending the Ombudsman’s powers to deal with matters concerning clinical issues. The commission understands that there have been discussions between the HSE, the Department and the Office of the Ombudsman on this matter. Furthermore, issues relating to staff are either dealt with by the approved centres’ own policies and procedures, regarding obligations and duties by way of their contract, in respect of the code of conduct, etc., or people could be referred to their professional bodies. It is important to understand that under regulation 21 of the approved centre regulations, the inspectorate team examines whether complaints are being dealt with appropriately, and if there is a concern this is addressed with the approved centre. The centres are required in law to be in compliance with the regulations. This process could be strengthened through revision and expansion of regulation 21, and, more generally, through a review of the approved centre regulations.

Turning to applications for involuntary detention to be made by authorised officers, the commission agrees with the recommendations in the expert group’s report and the Department's proposal, as contained in the general scheme. We have raised concerns that up to 30% of applications are being made by An Garda Síochána. People suffering the distress of significant mental health issues should not be met by An Garda Síochána, but by appropriately trained and skilled personnel. The expert group consulted with various parties to include the HSE in 2013 and 2014, and was told by the HSE that it proposed to increase the number of authorised officers. The commission reviewed this aspect in 2021 and we noted this increase does not appear to have happened.

In its submission to the Department, we stated that to ensure that this amending legislation works, funding will be required for the HSE to ensure that a 24-7 service, 365 days a year is available throughout the country. The service must also be available for all approved inpatient facilities, public and private. The current regulations relating to authorised officers will need to be amended to redefine the professional requirements for someone to be appointed an authorised officer and to specify the assessment tool criteria to be applied by the authorised officer when making an application. Consideration must also be given as to whether the commission should be able to audit or inspect this part of the service to ensure that it is in fact vindicating and safeguarding the rights of persons. The commission rejects the resources argument made by some parties for not proceeding with the amendment. The commission welcomes and wishes to reiterate that the substantial changes proposed with regard to children should be pursued and introduced as the current provisions are hopelessly inadequate. I thank the members of the committee for listening and we are happy to answer questions.