Mark Ward (Dublin Mid West, Sinn Fein) | Oireachtas source

I move amendment No. 1:

In page 6, between lines 6 and 7, to insert the following: “(e) section 85(6);”.

The section relates to women being pregnant, advance healthcare directives and the impact on the unborn child. The section is unconstitutional since the repeal of the eighth amendment. I am surprised to see this is still here following previous commitments from the Minister about it. When the 2015 Act was passed, section 85(6) provided that an advance healthcare directive would be valid or applicable insofar as it contained the refusal of treatment that would have a deleterious effect on the unborn. The 2022 Bill, as it stands, does not remove this language despite the subsequent repeal of the eighth amendment of the Constitution and the enactment of the Health (Regulation of Termination of Pregnancy) Act 2018. I propose the deletion of section 85(6) to ensure that all pregnant people can avail of advance healthcare directives. The report on the pre-legislative scrutiny also recommended this, in recommendation 54.

Amendment No. 2 is a red line for me. I have mentioned it to the Minister a number of times. It relates to people detained under Part 4 of the Mental Health Act 2001. This section relates to the removal of section 85(7) to allow advance healthcare directives to be extended to those involuntarily detained under the Mental Health Act. Leaving this section in is discriminatory to those with mental health difficulties and does not allow for parity of treatment for all Irish citizens. Every citizen of this country must be afforded an equal right to exercise their will and preference. This must apply to mental health as well as physical health. We could be waiting for years for the update of the Mental Health Act. I am on the Sub-Committee on Mental Health, which is addressing that Act at the moment. This is my second committee meeting today. I have no recollection of a discussion about assisted decision-making capacity when we were getting the report on the Mental Health Act ready. I do not know how we are going to review or amend the Act when we have not even discussed it at the pre-legislative scrutiny stage.

The Mental Health Commission and the Decision Support Service support the extension of this right to people under the Mental Health Act. I have discussed the dangers of not extending this right under Part 4 to people with the Minister previously. In 2020, 2,463 people were involuntarily admitted under the Act. That means that an average of 2,500 people a year could be subjected to forced psychiatric treatment, the forced administration of medication and forced electroconvulsive therapy without the protection of a legally binding advance healthcare directive. People's mental health difficulties are often episodic. The do not happen all the time. They have an idea of what their treatment should be and what worked for them in the past. If they make an advance healthcare directive, it is informed. People who provide an advance healthcare directive relating to physical care would not have the same experience as somebody who has mental health difficulties and episodic issues. I do not know how my physical health will be in five years, but people with a history of mental health difficulties know what treatment works for them and they should be able to have an advance healthcare directive.

Amendment No. 17 addresses 16- and 17-year-olds. Currently, they can consent to or refuse physical healthcare decisions, but this does not apply to mental health care decisions. They do not have any right to consent to or refuse mental health treatment. I hope that will change in the review of the Mental Health Act. At the moment, they cannot refuse hospital admission. Guardians can decide to admit them without their consent and 16- and 17-year-olds cannot refuse a particular course of treatment, such as electroconvulsive therapy, or even conversion therapy, which came up the last time we discussed this. The review of the Mental Health Act might bring those issues into line but we do not know how far away that is. There is no national advocacy service for people under the age of 18 who are accessing mental health services. Young people are not having their voices heard about mental health care and treatment.

Amendment No. 19 seeks to remove section 85(7) to allow advance healthcare directives to be extended to those involuntarily detained under the Mental Health Act. As I said, leaving this section in is discriminatory to those with mental health difficulties and does not allow for parity of treatment for all Irish citizens. I will not repeat that argument.

Amendment No. 27 is also about people detained under Part 4 of the Mental Health Act. They are the only cohort excluded from access to the protections of this Bill. It is discriminatory and exclusionary. They should not be omitted. It needs to be deleted in line with the upcoming mental health legislation. There are two Department of Health amendments, which require the Assisted Decision-Making (Capacity) (Amendment) Bill to include mental health and to which we would like to bring the Minister's attention. They are on page 165 of the draft heads of Bill to amend the Mental Health Act 2001, contained in the explanatory notes. This amendment introduces designated healthcare representatives as per sections 88(1) and 136 of the Assisted Decision-Making (Capacity) Act 2015. An amendment is required to ensure these provisions can operate and ensure parity of treatment for those with mental health issues. Subsection 2 reflects recommendations 126 to 131, which recommend that the advance healthcare directives should apply to persons receiving treatment under this Act.