Mr. Niall Brunell:

I thank the Minister of State and the Senator for the question.

I can absolutely reiterate the commitment to moving ahead with the Assisted Decision Making (Capacity) (Amendment) Bill as soon as possible. It is our intention to see enactment completed before the end of the year. I hope we will be in a position to publish a schedule shortly. We are working to close out a few issues that came out of the Committee Stage debate in the Seanad, but we are working intensively to close those out as soon as possible and the commitment of the Department and the Minister, Deputy O'Gorman, is to see enactment happen before the end of this year.

On the interaction with the Assisted Decision Making (Capacity) Act and the Mental Health Act, it is worth going back to when we started to work on the general scheme of the Assisted Decision Making (Capacity) (Amendment) Bill. Our starting position in this area - and we were well supported by the Minister of State, Deputy Butler's, Department in this - was to simply delete the sections in the Assisted Decision Making (Capacity) Act 2015 that disapplied sections to people whose treatment was regulated under Part 4 of the Mental Health Act. In simpler terms we wanted to remove the disapplication of decision supports for people who were receiving involuntary treatment under the Mental Health Act. It became clear as we worked through it and as we received legal advice on the issue, that it was much more complex than a simple deletion and that what is required as a first principle issue is the reform of the 2001 Act. Part of the reason for that is the architecture of that Act, the way it is drafted and that some sections in the Mental Health Act 2001 have to be unpicked to do what we want to do in assisted decision making.

Intensive work was done during the passage of the Assisted Decision Making (Capacity) (Amendment) Bill through the Houses and, before that, in preparation of the general scheme. On Committee Stage in the Seanad, the Minister, Deputy O'Gorman, moved amendments that allowed assisted decision-making supports to be extended to what we believe is the majority of people who receive involuntary care or whose treatment is regulated by Part 4. Where we cannot go further is on the definition in section 3(1)(a) of a mental disorder. That is not my language. It is the language of the Mental Health Act. The reason is that a careful balance of constitutional rights comes into play, difficult legal issues need to be unpacked and the redrafting of section 3(1)(a) in the 2001 Act is required in order for us to go further.

We have been working closely with others and have been well supported. The relationship is very good and collaborative as we have been working with officials not only in the Department of Health, but also the Decision Support Service, DSS, and the Mental Health Commission and we are moving as far as we can in this issue. I understand from conversations with the Mental Health Commission that extending decision supports to persons who meet the section 3(1)(b) definition in the Mental Health Act 2001 will extend decision support services to the majority of people who receive involuntary treatment under Part 4 of the Mental Health Act. Importantly, it extends decision supports to persons who fall under what is probably one of the more paternalistic sections of the 2001 Act. The section 3(1)(a) category that we cannot extend provision to, in the absence of reform of the 2001 Act, relates to people who are likely to cause serious and immediate harm to themselves or others.

We are talking about people whose need is very acute. I accept it is not an ideal situation and both Ministers and both Departments in this area have been very clear that the move needs to be towards full parity. As I have said we are constrained in doing that with the architecture of the Mental Health Act 2001 as it stands. We have extended provisions in the section 3(b) definition, which is a bit wordy but in essence relates to people who are treated where the treating clinician thinks treatment is in their best interests. It is one of the more best interest-heavy models within the Statute Book and we have been very happy to extend assisted decision-making provisions in that area.