Oireachtas Joint and Select Committees
Tuesday, 16 November 2021
Joint Committee On Health
General Scheme of the Mental Health (Amendment) Bill 2021: Mental Health Commission
As we have a quorum we will begin the meeting in public session. Apologies have been received from Deputy Gino Kenny. Are the draft minutes of the sub-committee meeting on 2 November 2021 agreed? Agreed.
I welcome to the meeting officials from the Mental Health Commission to discuss the mental health (amendment) Bill. I welcome Mr. John Farrelly, chief executive, Dr. Susan Finnerty, inspector of mental health services, Mr. Gary Kiernan, director of regulation, Ms Áine Flynn, director of the decision support service, and Ms Orla Keane, general counsel for the commission.
Members in attendance are asked to exercise personal responsibility in protecting themselves and others from the risk of contracting Covid-19. They are strongly advised to practise good hand hygiene and to leave at least one vacant seat between themselves and others attending. They should also always maintain an appropriate level of social distance during and after the meeting. Masks, preferably of medical grade, should be worn at all times during the meeting except when speaking. I ask for members' full co-operation on this.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members they are only allowed to participate in this meeting if they are physically located on the Leinster House complex. In this regard, I ask all members prior to making the contribution to the meeting to confirm they are on the grounds of the Leinster House campus. I now call on Mr Farrelly to make his opening remarks.
Mr. John Farrelly:
The Mental Health Commission welcomes the opportunity to speak to the committee today on the scheme to amend the Mental Health Act. The commission is an independent statutory body established in April 2002 under the provisions of the Mental Health Act. The principal functions of the commission are to promote, encourage and foster the establishment and maintenance of high standards and good practices in mental health services and to take all reasonable steps to protect the interests of persons detained in approved centres. We register and inspect all approved mental health centres in the State. The commission's vision, as set out in its strategic plan is the highest quality mental health and decision-support services underpinned by a person's human rights. The remit of the commission was extended by the Assisted Decision-Making Capacity Act 2015, which provided for the establishment of the decision support service.
The Bill will establish a modern statutory framework to support decision-making by adults who have difficulty in making decisions without help. As the independent regulator of mental health services and the State agency with responsibility for the 2001 Act, it is an enormous privilege to input into the legislation which shall assist in improving mental health services in Ireland for years to come. In July and August 2019, the Department provided the commission with copies of the heads of a Bill to amend the 2001 Act. This was a unique opportunity for which I thank the Department and the Minister. On receipt of the heads of the Bill in July 2019, we established an executive working group, the terms of reference for which were approved by the leadership team and the board of the commission. There then followed a series of meetings of the working group on each part of the heads and certain specific sections, such as the guiding principles and capacity and consent. The working group then met the commission’s legislation committee to look in detail at all parts. A draft submission was presented to the board of the commission in February 2020 and, subject to certain amendments, the submission was approved and sent to the Department of Health in early March 2020. A similar process was then followed on the proposed new part of the 2001 Act relating to children.
We raised a number of key points in our submissions. The commission adopted a practical person-centred and rights-based approach when reviewing the heads of Bill and making its submissions to the Department. We identified and raised issues in almost every section of the Act. The executive summaries provided to the committee give an indication of the issues the commission has sought to address. Some of the key changes are to ensure parity of mental health issues to general health issues and to extend the regulatory remit of the commission to 24-hour residential mental health services and all community mental health services.
When the 2001 Act was reviewed by the expert group, the part relating to regulation did not receive the same attention as some of the other parts. This is not a criticism but a comment. The commission recommended that mental health services be divided into three categories. These are approved in-patient facilities, which are covered at present, approved community residences, which the Department has confirmed in writing should be subject to regulation, and approved community mental health services, which include all the community services set out in A Vision for Change and Sharing the Vision. The commission also recommended that the relevant part of the 2001 Act should be retitled "Regulation" and the various stages of regulation, including registration, inspection, monitoring and enforcement, should be clearly set out. The commission also recommended that the approved centre regulations of 2006 be amended in parallel to the Act. It also sought to separate measures relating to restrictive practices from treatment measures. The commission does not agree with the inclusion of restrictive measures in Part 4 of the 2001 Act and recommended that a separate part of the Act deal with restrictive practices and the rules relating to them. Treatment and restrictive practices are two different things.
We also sought to reform the provisions relating to consent, capacity as linked to the 2015 Act and the administration of medication. This part of the heads of the Bill was the subject of significant discussion, with the result that a number of amendments have been recommended. Issues considered included the 2015 Act, the changes in the area of consent and the rights-based approach advocated by the UNCRPD. The commission wants to ensure that guiding principles are introduced to replace the best interest test and that they are patient-centred and work in the context of mental health. The commission also wants to ensure the remit of the mental health tribunals and those of the Circuit Court for the benefit of patients. This is often forgotten but it is a significant function when people are deprived of their liberty. The commission recommended a number of smaller changes in this area to include supporting the move to all applications for involuntary admission being made by authorised officers, who are people who understand mental health, with no applications to be made by An Garda Síochána. We recommend that the section on bringing a person to an approved centre against his or her will be the subject of review by a mental health tribunal, which is now called a review board, involving the other members of a person's team in the admission or renewal process.
It is worth noting the commission has objected to the insertion of intermediate admission and renewal orders, which were not in the heads of the Bill as provided to us in July 2019. These provisions were suggested by the expert review group to fill a gap that existed prior to the 2015 Act but the 2015 Act has addressed the issue of capacity. Therefore, it is the commission’s view that these provisions are no longer required. Furthermore, in the commission’s opinion the provisions in the general scheme would undermine the 2001 and 2015 Acts and fundamentally change what is being proposed.
The board of the commission is concerned at the inclusion of these provisions. They go against everything that we are trying to achieve in terms of parity for people with mental health issues.
In regard to the new Part relating to children, the commission welcomes that the Department of Health and the Department of Children, Equality, Disability, Integration and Youth are working on various aspects of this new Part of the Act. There are number of issues which the commission believes are important to include, such as that each child should be appointed a legal representative from the beginning of an involuntary detention process to its conclusion. The commission is of the view that this is the best way to ensure that the voice of the child is heard. Furthermore, the commission could extend its legal aid scheme to deal with the appointment of such legal representatives. There needs to be separate provisions relating to children under 16 years and those who are 16 to 17 years old. There should be a statutory provision for the furnishing of information to the children and their parents-guardians. The provisions in the 2001 Act need to stand alone from those in the child care legislation and there is need for greater involvement of children in the process in terms of attending court remotely and having a say in proceedings.
I thank the Mental Health Commission for the opening statement. I congratulate the commission on the launch yesterday of its report on access to mental health services for people in the criminal justice system, which I attended. It is a really eye-opening report. I commend the commission on that as well. I tabled a Topical Issue matter on it for debate this evening, but it has not been selected. I will resubmit it again in the hope that it will be selected tomorrow.
My first question arises out of the report launched yesterday. Head 13, section 12 deals with the powers of An Garda Síochána to take into custody a person believed to fulfil criteria for involuntary detention and provides that the commission may, in consultation with An Garda Síochána and any other relevant body, prepare a code of practice on the functions of An Garda Síochána under this Act. It provides that the commission "may" prepare a code of practice in regard to the powers of An Garda Síochána under this Act in consultation with relevant bodies following on from a recommendation of the March 2021 public consultation. The recommendation further states that all members of An Garda Síochána should be adequately trained in regard to both their powers under the Act and how best to handle a situation involving persons expressing mental distress. Should the word "may" be substituted with the word "shall" to ensure that the training and trauma informed care form part of this Act?
Ms Orla Keane:
I agree it should be "shall". There are a number of areas wherein the reference to "may" and "shall" need to be tidied up in due course in the drafting of the Bill. With the permission of the Deputy, I would like to point out that since we first got the heads of Bill there has been a change such that gardaí cannot now involuntarily detain people. That has to be done by an authorised officer. That is a significant move. The second issue is that the time period for which somebody can be held in custody is now down to 12 hours. The commission has asked for a shorter period. We would ask the committee to consider that. People detained for drink driving and so on are detained for only very short periods of three and six hours. We would ask the committee to consider reducing that time period further. As the committee will appreciate for a person in custody in a Garda station who is unwell that is a very intimidating and difficult environment.
I thank Ms Keane. On the authorised officer, I too have concerns about that change in light in particular of the resources and so on that will be required. I have tabled a number of parliamentary questions on the matter. Does the commission have information on the shortfall of authorised officers throughout the country? Is it concerned about the possible later commencement of this section due to recruitment issues and how we can ensure there is no such delay? That relates to head 10, section 9.
Mr. John Farrelly:
Generally, in the current Act the intention was that the authorised officers would do a lot of the work. In the case of a social worker, for example, if we had a 24-hour social work service where staff were zoned in with regard to this area, we would have access to healthcare workers who are able to form a view and would be trained to do that. Being ready for it is a matter for the HSE. There is no doubt that this requires planning. If the HSE does not do the proper planning and does not start preparing now, then the law will be delayed. There is no reason for the law to be delayed if people do their work in advance.
Ms Orla Keane:
We wrote to the HSE about this issue. The expert group identified a shortfall as far back as 2013 when it was looking at this issue. There was supposed to be an increase in the number of authorised officers but that increase has not happened. We are told by the HSE that it has recently, or in the last six months, established a committee to look at this issue and to work on the new requirements in regard to authorised officers. At this point in time, we have no further information.
I thank Ms Keane. My second question is also in regard to resources. Part 3 of the heads of Bill provides for changes to the Mental Health Commission. The commission is referenced in numerous heads and section notes. Throughout the heads of Bill, the commission is set as the body charged with producing codes of practice, rules, regulations, reports, etc. How is the commission preparing for this increased workload prior to the enactment and commencement of this legislation? In advance of the roll-out of enhanced services, what preparatory work has been undertaken to date by the commission? Is the commission liaising with the Department of Health in regard to the increased resources required?
Mr. John Farrelly:
I will give a brief response to the question with regard to resources and then ask my colleagues to respond on the issue of regulation. In terms of our business plan for this year, we have been planning for an independent review of our structure in terms of the regulation of mental health services. I would expect to have that report in place by the end of the year, which will set out the structure and the staff we would need to regulate community services and community houses. I would also expect to have a budget in terms of what would be required to do that. It is an independent report. We hope to give that to the Department in time. We have a provisional budget in the estimates should things happen quickly. In that situation, we would be able to tell the Department the number of staff required.
How quickly would the commission be able to increase its resources once the Department gives the go-ahead and so on for this? How quickly would it be able to fulfil its obligations under this legislation when enacted?
Mr. John Farrelly:
We would do everything within our power. We have a corporate spine to recruit. It is a very strange time in terms of public sector recruitment and churn. There is a lot of movement. That would be a challenge, but I think we would be able to ramp-up fairly quickly. I would not see that as a problem. If we get the powers, we will deliver on them.
I thank Mr. Farrelly. Earlier, he touched on the issue of how long a person should be held in custody before he or she is seen by a doctor, which I think is currently 12 hours. A person being held for drink driving must be seen within three hours. I would welcome Mr. Farrelly's thoughts on whether the 12 hours should be reduced to six hours or less. What would happen where there is no GP or other healthcare professional available within the six hours set down within the Act?
Ms Orla Keane:
We made the exact argument in our submission with regard to the people being held for drink driving being held for only three hours. We would like a reduction from 12 hours to six or three hours. We know the practicalities of that. Again, if proper supports are put in place in terms of GPs, there are always out-of-hours services that can be called upon. To date, it appears getting a GP has never been an issue or at least it is not an issue that we have ever come across. In terms of other cases, getting a GP has never been a problem. It is not an issue that we are aware of.
I got through more questions because I did not do a big preamble, as I would normally do.
The 2015 Act was mentioned a few times in the context of capacity to consent. It is my understanding that the Bill amending that Act will be in front of the children's committee in June or July 2022, according to the information I have received. It will not be in front of this committee or the health committee but the children's committee. I had confirmation of that the other day. When the representatives talked about Acts running in parallel, do they think that Bill should be examined at the same time as the heads of this Bill? It makes perfect sense to consider the two of them at the same time because we could be putting the cart before the horse on this issue. The issue of capacity to consent and the 2015 Act is not in front of the Joint Committee on Children, Equality, Disability, Integration and Youth until, as far as I know, June 2022. Are there any implications if consideration of the 2015 Act does not run in parallel with, or before, that of the Mental Health (Amendment) Bill?
Ms Ãine Flynn:
The Department of Children, Equality, Disability, Integration and Youth has responsibility for the Assisted Decision-Making (Capacity) Act 2015. It is enacted legislation and indications have been given that it will be fully commenced by June or July of next year. It is subject to certain amendments. In fact, we understand that heads of Bill to amend that Act are to go before Cabinet imminently and a Bill will be published before the end of the year. The amending legislation will have to be enacted before that Act can be fully commenced, which we believe will be in June. It deals with the issue of capacity and how it is to be assessed. It establishes a uniform approach to assessing capacity. The Deputy is correct that it is important the assisted decision-making Act comes to life before any amendments to the Act now before this committee. This is because capacity will be interpreted and applied in a particular way, and consent assessed and arrived at, subject to the supports provided for under the 2015 Act.
I am delighted Deputy Ward asked so many questions because he asked one or two I was going to ask. I will not be repetitive. I am interested in comments the representatives made in their opening statement, which I heard them make previously, on some of the restrictive practices in the legislation they do not agree with. I would like to develop that point a little more because those practices could be a flashpoint when the legislation comes through. I am interested in getting a little more information and detail on what exactly their concerns are, how they can be addressed and what the alternatives are.
Mr. John Farrelly:
I will start and then ask the inspector to come in on the matter. We just need to be clear that restrictive practices, such as physical restraint, etc., are not therapeutic. They are not treatments for people. It can very often be accepted culturally that somehow people with mental illness can be treated differently from people with other illnesses. All we wanted to say was that at certain times, and I will ask Mr. Kiernan to speak on this as well, there is no doubt that restrictive practices are needed, but we do not want anyone setting out that they are somehow part of a therapeutic treatment for mental health. They are a last resort. We have strong rules and codes around them and we should only use them if we have to. We did not want such practices confused with somehow being part of the therapeutic treatment for mental health. They are, rather, a last resort. Maybe I-----
Mr. Gary Kiernan:
That will hopefully work for people a little more. I will try to speak as loudly as I can. We welcome the separate provisions and the fact that the restrictive practices have been dealt with separately in the general scheme. We particularly welcome the inclusion of chemical restraint and physical restraint in the new part of the Act. That highlights that these are not treatments but very specialised arrangements that need to be put in place under very limited circumstances. We want these arrangements, and this is the aim of the Act, only to be used as a last resort under limited circumstances where all other appropriate alternatives have been considered. The revised scheme now allows for the commission to generate and create rules not just for seclusion and physical restraint but for chemical restraint and physical restraint, which is very important.
The commission is undergoing a process at present to revise our rules on seclusion and physical restraint. That is being done through an expert group and a process of public consultation that will look at the best available evidence internationally, to answer the Senator's question, and consider that in the drawing up of those rules. The general scheme will give us a statutory footing for those rules to eliminate and reduce, as far as possible, the use of restrictive practices in patient facilities.
Mr. Gary Kiernan:
Yes. We are proceeding at pace with that piece of work. The expert advisory group has been set up and has been meeting. The literature review to support that piece of work is nearing completion. We have conducted and completed our public online consultation process. We received very strong interest in that, with more than 96 public submissions. We are collating those and expect to publish them in the near future in advance of the general scheme.
I thank Mr. Kiernan. Deputy Ward touched on the issue of funding in his questions. Members of the committee are very concerned that the commission receives the requisite level of funding it needs to implement the provisions of the legislation, and do what it needs to do, once the legislation is passed. Is the commission confident that it has a commitment from the Government on funding? I fear we could be back here in a couple of years and what has been hoped for with this legislation, and what people are trying to achieve, will not have been achieved because of a lack of funding.
Mr. John Farrelly:
I can speak to that as the accountable officer. The Department and the Minister, since I joined the commission, have been absolutely supportive in giving us funding. As I said, we will have the evidence to ensure that there is a value-for-money basis for that. I believe we will receive the funding. I do not think there will be an issue there. There is always a fight for €500,000 or €1 million here or there, and you have to cut your cloth in the current climate, but that is always how it will be.
Okay. The legislation, hopefully, will go a long way towards dealing with the legacy issues. I have no doubt that, as we move forward, the legislation will probably require amendment. Unfortunately, that is the nature of it. I thank the representatives for their engagement, the work they have done and their accessibility to the committee. The report the commission launched yesterday was also an excellent body of work.
Another Deputy mentioned an issue I would like to go into in more detail. Dr. Finnerty may be able to answer some of my questions around the inspection of mental health facilities and the regulation around specific services, particularly residential services. I read some comments Dr. Finnerty made about the issue in February of this year. How concerned is she about the fact that this legislation would move ahead without significant consideration of that particular issue?
Dr. Susan Finnerty:
I thank the Deputy for her question. We have been concerned for some time that we can only regulate approved centres. Looking at modern mental health services, it is clear that only a small proportion of people with mental illness go into the approved centres we are operating. We are very much aware that there is a considerable number of people living in residential units around the country. There are approximately 113 or 114 24-hour supervised residences, each with up to eight or nine people in them, which means there are approximately 1,200 people in 24-hour residential facilities. While they are not regulated, I can inspect them. We have been inspecting them within a reasonably regular timeframe and asking them to provide quality improvement plans. However, we would be quite concerned about some of the residential centres, their facilities, care planning and therapeutic activities and programmes. We very much welcome the fact that these centres will be regulated and we will have a set of regulations by which we can inspect and enforce action.
Community mental health services include community mental health teams and specialist teams, such as eating disorder teams or child and adolescent mental health services teams. Each of those teams will have aspects of mental health services attached to them, such as day hospitals, home-based treatment teams, day centres and so on. They form a very important part of a person's journey through the mental health services and it is important that those services are operating to the best standard. We welcome the fact that they will be regulated and will have to perform to a certain standard and if they do not, we can enforce action.
I want to ensure I have it straight in my mind. Perhaps we can come back to the approved centres that are fully residential and stick with community residences. They are currently not regulated. This legislation would provide regulation but the next part of that story would be to give the commission oversight of that regulation.
Dr. Susan Finnerty:
That is the case. The next step would be for them to be registered with the Mental Health Commission and regulations would be drawn up to apply to them. That would allow us to inspect them against those regulations and if they are found not to be compliant, enforcement action can take place to ensure they move towards compliance.
Dr. Susan Finnerty:
We have no recourse to enforcement. We have put pressure on the HSE to provide quality improvement plans but we cannot enforce them.
Dr. Susan Finnerty:
The ones that are run by other bodies will be subject to the same regulations as HSE residences. Enforcement action will apply to any non-compliance, whether residences are run privately or by the HSE. HIQA oversees disability services. It does not oversee the mental health residences.
That makes sense. There is sometimes confluence between the responsibilities of different organisations. We are also talking about the UN Convention on the Rights of Persons with Disabilities and there is an interrelationship there.
I do not know who is best placed to answer my next question. Could somebody unpack for me the issue around intermediate admission, renewal orders and concerns in that regard?
Ms Orla Keane:
When we got the original heads of Bill, the intermediate orders were not in it. They were in the revised Bill we received in March or April of this year, which was a bit of a surprise. The issue is that to involuntarily detain somebody against his or her will is a major issue and can only be done in accordance with the law. There are very specific criteria for involuntarily detaining somebody and the revised criteria for that are set out in section 8. This Bill allows for the involuntary detention of a person because of mental health issues. The issue that was raised by the expert group and which has been put in by way of the intermediate admission and renewal orders relates to capacity. The remit of this legislation is being fundamentally extended to deal with issues of capacity. Those issues have been dealt with in the 2015 legislation. The commission, in its review of the legislation, has also made a number of recommendations to the Department. One applies to a situation of somebody who is either voluntarily or involuntarily detained and a lack of capacity is recognised. We have suggested a mechanism to allow such a person to transfer or transition to the 2015 Act.
Our concern is that people under this Act are going to be detained because of the criteria for mental illness. There is then a new category of people who the Department is saying are not detained but are going to receive the same oversight. Effectively, the commission will then be reviewing people as to their capacity. That is not one of our fundamental functions. We are also concerned about the fact that the commission is the owner or operator, for want of a better phrase, of both the Mental Health Act and the Assisted Decision Making (Capacity) Act. We have a fundamental difficulty because we would be setting up a parallel process of reviewing capacity under the Mental Health Act when all those issues should be dealt with under the 2015 Act.
We sent a memo to the Department setting out our concerns in that regard. When we got the general scheme of the Bill, as approved by Cabinet, we noted the problem was still there and, on that basis, we then brought it to the commission members.
We also have a fundamental concern about the situation of a person who does not meet the criteria for detention, who may lack capacity and is going to be detained.
I do not know what legal advice has been obtained by the Department as it has not shared that with us. We would have a concern that, legally, that might not even be sound. Fundamentally, it is introducing a new issue about assessing capacity into the mental health legislation, which is not the function of the legislation. Second, it is introducing a parallel system of capacity, which has already been dealt with in the 2015 Act. Our concern is that it would undermine the 2015 Act.
If I may add a further point, our further concern is that even if these orders were introduced and they were intermediate admission orders for 21 days, in order for the person to be assessed in terms of capacity to see if he or she should be brought under the 2015 Act, that would be something, but the scheme also proposes these intermediate admission orders would be extended for three months or a further six months and that goes completely against-----
This might be a simplistic question. Is there a specific reason this has arisen? There are issues around the assisted decision-making legislation with respect to making sure everything works well together but usually there is an effort to ensure legislation does not clash with other legislation. Perhaps Ms Keane cannot answer this question. Is there a particular reason this has arisen?
Ms Orla Keane:
The reason appears to arise from the fact that the expert group recommended there be this intermediate category of person. The report of the expert group was completed in 2014 and published in 2015. That is six years ago. The Assisted Decision-Making (Capacity) Act has been passed, albeit not fully commenced, and a number of amendments are being made to it. That Act has overtaken that issue that appeared and was raised by the expert group and it will deal with that issue of capacity. The commission's view is that this issue has now been overtaken and dealt with by the 2015 Act and we have said that to the Department. If I may, I might authorise my colleague, Ms Áine Flynn who is dealing with the 2015 Act, to add anything I may have missed if that is okay.
Ms Ãine Flynn:
I thank the Deputy for her question. It might be helpful to describe the procedure which this intermediate category solution bypasses. Under the 2015 Act there would be a process where there is a question mark over somebody’s capacity and where under that Act, and all the guiding principles it contains, everything has been done to support the person to make his or her own decisions, including decisions around healthcare and treatment. There is then a route to court, which is the Circuit Court, to make a declaration about a person’s capacity in respect of discrete items, which in this case would presumably be consent to treatments for a mental health issue. If the court in that case were to find capacity was lacking it then can make an order appointing a decision-making representative who would then, ideally, be somebody in a pre-existing relationship of trust or failing that, a person appointed from a panel to be maintained by the decision support service who would act within the strict terms of a time-limited decision-making representation order to act as agent, having regard at all times to the person’s will and preferences and who would be in a position to supply the necessary consents if that were to be required. All of that is kept very strictly under review and monitored by the decision support service. There is a well worked out and protected process in place, which this intermediate category designation bypasses, which is the point Ms Keane was making.
That is a rather significant point we all need to get to the bottom of before the end of this process. If time permits, I wish to revisit a specific issue with Dr. Finnerty, which I forgot. I said I would return to the issue of approved centres. I note from the commission's opening statement there was discussion around regulation, registration, inspection and monitoring enforcement. There was a great deal in that report from February on the inspection of mental health facilities. The approved centres are also in the commission's domain, so to speak. That report was pretty damning about the state, quality and upkeep of those premises. As we are moving through this process, which is very much about a rights-based approach, the quality of one's living conditions is an issue of human rights. Would the proposed legislation result in an improvement in changing he quality and longevity of those approved centres? Many of them are at risk of closure because the poor quality of the premises.
Dr. Susan Finnerty:
There is a mixture of facilities around the country. Some of them are new, very well built, provide single room accommodation and are spacious with plenty of communal space and so on. The rest of the stock is quite old. While we are not looking at the Victorian asylums we are looking at facilities built decades ago and the fabric and maintenance of those are problematic. The Deputy will note from many of our reports that keeping up the maintenance of these units is quite difficult. There are issues around structure, declaration and fire safety. With the regulations we have we can make sure the services provide maintenance and keep the units clean and hygienic but it is a difficult task for some of the services to do that.
To answer the Deputy’s question about the Act, with the Act will come a review of the regulations. The regulation on premises could certainly be reviewed to ensure there is tighter regulation around premises. Even with the current regulation, we are able to pick up where facilities are not up to standard.
Does the commission provide guidance or information, where a premises is not fit for purpose, on care pathways to provide the least disruptive situation for those resident in the approved centres? I presume the point of moving somebody from a less than perfect situation is not to move them from, say, an inadequate single room to a ward in what, effectively, is an institution. Is that something the commission takes on board?
Mr. Gary Kiernan:
I hope the committee can hear me a bit better this time. The area of registration overall has been greatly expanded and improved. The enforcement powers within the registration section of the revised scheme require that we assess whether the premises will be satisfactory before a centre of approved inpatient facility can be registered. As Dr. Finnerty pointed out, it is important that the 2006 regulations are revised in parallel with the Act so that they include detail on the appropriate premises standards. The commission will then be able to make an assessment as to whether a premises will comply with those regulations when determining whether a facility should be registered. The legislation is certainly strengthened in that regard.
With regard to the closure of centres, as Dr. Finnerty has pointed out, it is really important to note that all of those arrangements are in place. They are set out in the statutory instrument setting out the 2006 regulations and require that a care plan be in place, that there be consultation, that notice be given to us three months in advance and that appropriate arrangements are made for onward transfer in consultation with the resident. The revised scheme transfers this into the Act, the primary legislation. All of those provisions are now in the scheme of the Bill to amend the 2001 Act. That will strengthen these provisions further, to monitor them more closely and to take more direct action should we have concerns.
I hope everyone can hear me okay. I have a number of notes here on questions I want to ask. In its opening statement, the commission states that it wants to ensure parity between mental health issues and general health issues. I asked a question on this at our last meeting on this topic. The expert group did not recommend an independent route for making complaints. When I asked about this I was told that they were pretty much the same thing. However, they are not really because there is no independent body to which people can make complaints. What are the representatives' thoughts on that? Does the system proposed in this Bill provide parity of esteem between mental health and physical health, particularly as there is no independent route by which to make complaints while there is such a route for other health issues?
Mr. John Farrelly:
I will speak to that initially. The Act is quite strong. I do not really understand the Senator's point regarding an independent complaints mechanism. I do not understand what people are articulating when they talk about an independent complaints body. If you are receiving a general health service and something goes wrong, you have the right to make a complaint to the body. That body should have a complaints process in place which includes independent elements. The HSE has that in place. We have regulations in place under which complaints must be acted upon and a process undertaken and we can monitor that. If the complainant is not happy with the HSE, he or she can go to the Ombudsman. It is the same process as for complaints regarding general health. I am not quite sure what people mean when they talk about an independent body. The culture around complaints should be such that they go to the people involved who then learn from it. Perhaps this is a little bit about people not trusting the provider to deal with complaints. Perhaps that is what is coming out. If that is the case, there is an onus on the provider to be even more transparent. I would suggest that what gives an added edge and is useful in this Bill is the introduction of the patient advocacy service and the ability to make applications to it. This will be for all community mental health services as well. People will be able to receive support from the patient advocacy service, where needed. That will strengthen the Act. That is the news.
I thank Mr. Farrelly for that. Mental Health Reform and other organisations have been calling for this. I thank Mr. Farrelly for his thoughts on it. I have another question. We talked about the continued use of coercive practices. In Sharing the Vision, in connection with recommendation 92 it is suggested that we "Progress a ‘zero restraint, zero seclusion’ action plan". It is recommended that be part of our mental health services. Again, this is a question I have asked before. How does the commission see this working alongside Sharing the Vision? Is it the case that we will need an amendment to the Act at some point, even though we are currently amending it? How does the commission see those two different things tying together?
Mr. John Farrelly:
I will speak to this initially before handing over the Dr. Finnerty and Mr. Kiernan. Sharing the Vision is a Government policy which sets out a framework. It is up to providers to work within that framework but they must also work within our rules. We have gone out to a full public consultation on seclusion and restrictive practices. That has never happened before and people were worried about it because they somehow felt that it was something that should not be discussed or that it was a private matter, but it is not. It is a public matter. We will be putting strong rules in place with regard to seclusion and restrictive practices and people will have to work within them. It will be an offence under the Act not to. If there are breaches of these rules, prosecution will be our next step. The first prosecution under the Mental Health Act 2001 happened a couple of years ago and related to seclusion. As far as the commission is concerned, there absolutely should be strategies in place and we should go this way. However, at the same time, we will not tolerate breaches of the rules. I will hand over to Mr. Kiernan and then Dr. Finnerty to give the Senator a fuller explanation.
Mr. Gary Kiernan:
That is just it. The revised scheme provides much clearer direction in respect of all of the categories of restrictive practices, including seclusion and mechanical, physical and chemical restraint. It requires the commission to develop rules in respect of each category of restrictive practice. As Mr. Farrelly pointed out, we have gone through a public consultation in that regard. We are undergoing a process to underpin those rules with rigorous evidence and literature review to ensure they are clear to everybody, that they are workable in approved inpatient facilities and that they require people to use restraint only as a very last resort when they have demonstrated that all other appropriate alternatives have been considered. When we have those rules in place, we will have a very clear footing to take appropriate enforcement action, whether prosecution or otherwise, where there is non-compliance with those rules. Those rules should be taken in the context of the existing reduction and elimination strategy which the commission has in place to guide providers on how they approach the use of seclusion and restraint.
I am sorry; I was just turning the volume up so I can hear a little better. I have notes absolutely everywhere. I will ask a little about advocacy for people who need services and their families. That is all quite complicated for legislators and those who draft legislation. How does the commission see people being supported to access advocacy and the decisions support service? Will they have access to interpreters? What additional supports will be needed or will be available? How do we, as legislators, ensure that is covered?
Mr. Gary Kiernan:
The patient advocacy service is in situ. It started at the time of Covid. That is making a difference. The application of it into the mental health services on behalf of the Department of Health would be highly welcome. There are voluntary advocacy agencies working quite hard, but they do not necessarily have the powers to intervene. Supporting the advocacy services and also the extension of the patient advocacy services into mental health is planned and would be welcome.
Ms Ãine Flynn:
The Senator mentioned access to the decision support service also. What we tend to say is that access to the supports under the Assisted Decision-Making (Capacity) Act should be a feature of care. That Act should not be disapplied in any environment. A point to consider there is section 136 of the 2015 Act, which specifically does place limitations on how the 2015 Act can be accessed when a person's treatment is being regulated under the Mental Health Act. In an earlier version of the heads of the Bill that we are looking at today, section 136 of the 2015 Act was going to be repealed. There was also an earlier version of the heads of the Bill to amend the 2015 Act, which addressed that, so it remains an outstanding issue in terms of to what extent people have access to the full supports and decision-making opportunities provided for under the 2015 Act when their treatment is regulated under the Mental Health Act. If we can arrive at a resolution of that issue, then any person in an approved inpatient facility should be made aware of the 2015 Act. People working in those facilities should be aware of the 2015 Act, and having access to its full supports must be something that is addressed.
I thank the witnesses for that. We have a broad representation here today of people coming to talk to us. The witnesses have made a submission and they have compiled a report. Is there any outstanding concern or input they would like us as a committee to consider that perhaps has not been highlighted elsewhere either in the report or in the submission? There are a number of witnesses who have a breadth of experience and background in the area. Is there anything else they want us to consider or any other concerns they might have that were not highlighted?
Mr. John Farrelly:
No, we have considered this in detail for a long time. This is quite reforming legislation if one looks at the language. I urge the committee to view it in that context. It is strongly reforming legislation. While we have a number of issues, on balance it is a really strong piece of legislation that for the first time brings the voice of people into the legislation.
There is another point on which we should be careful. The law cannot stop shoddy governance or people not implementing legislation. Once the law is in place, it should be implemented. It should not be an optional extra for big providers such as the HSE for example. In fairness to the Oireachtas, the Minister and the Department, this is a very good piece of legislation. What we have to do then is make sure we do not confuse it with providers not implementing it. As a regulator, we will make sure that it is implemented.
Ms Orla Keane:
If I could respond to Senator Hoey's question about advocacy, the Department took on board recommendations from the commission about increased statutory requirements about providing information, not just to involuntary patients, which have been extended, but also a specific statutory requirement to provide information to voluntary patients, which was not there before, and specific statutory requirements to provide information to children, adolescents and their parents in a manner which is understandable and comprehensible. It is important that the requirements have been extended and put into the legislation. In fairness to the Department, it took all of those recommendations on board.
I thank the witnesses very much for all the work they have done and I wish them luck in the future. I hope they will have more powers as well.
There are a lot of issues being covered, but I will focus on the Assisted Decision-Making (Capacity) Act. What rights do long-term patients in an approved centre have if a centre is due to be closed and they do not want to leave it because they consider it their home, in spite of the recommendations to shut the centre?
How frustrated do the witnesses get if they commission a full report on a centre and two years later they go back to do another report on the same building and make the same recommendations, or perhaps more, and they have not been carried out and the same could happen a third time? They find that none of their recommendations have been addressed. After three or four reports over four to eight years, despite all the recommendations being approved, nothing is done and then the commission is faced with the scenario of shutting the centre because it is not fit for purpose. If the recommendations of previous reports had been acted on, the premises should be up to standard. How does the commission get around that?
My main concern is that we have a centre that is due to close. I refer to the Owenacurra centre. It has 19 long-term patients. It also caters for short-term stays and it has mental health day services. Three or four reports have been done by the Mental Health Commission and recommendations have been made on the building over a period of years. I have read all the reports and seen all the recommendations and yet nothing was done to the centre. Now we have a scenario where we are talking about people's rights. Some people are happy to move on. Dr. Finnerty referred to the fact that moving a patient from one centre to another does not always mean it is a better or more appropriate place. The current scenario is that patients in the centre do not want to go anywhere. I have spoken to many of them. One patient said to me that it is his forever home. He thought he was going to die there. Where is the protection for the patients? What power does the commission or this committee have to ensure the safety of each and every one of these patients, but also that they have the capacity to make up their own mind and make the decision? If the decision is to remain in the centre where they are now, can the HSE force people to move to another place? I suspect that the new centre will be less appropriate because some of them are locked down for 12 hours and others are in very sparse areas while the current centre is integrated into the town and the patients are likewise integrated. It is a rights issue. I know there is a lot in it, but I would welcome if the witnesses could help me in this regard because it is a problem that has arisen in recent weeks and it is very hard to get answers for patients.
Mr. Gary Kiernan:
The existing Act does not prohibit any provider from closing a centre. I see the clashes and the difficulties there where that is at odds with the preference of residents who are living in the centre. The revised scheme does make the provisions around closure stronger in the sense that it brings them into the primary legislation in terms of the provisions for consultation with the residents, listening to their wishes and acting on them in so far as possible. It requires that the existing provider follows up for a period of three months afterwards on their ongoing care. It also provides that they make the appropriate assessments to ensure that their ongoing placement is appropriate for them and is in keeping with their needs. Those provisions come into the revised scheme and that hopefully will strengthen the Bill. It is a matter for the provider to ensure that the onwards placement is appropriate to their needs. The revised scheme will strengthen that and there is provision for us to monitor that.
Is Mr. Kiernan saying that, as it stands at the moment, the responsibility is with the provider even though the provider has done nothing to maintain the place?
Its failure to maintain it has led to it having to close. The provider rules the roost and patients have no say.
I fear that this is happening in other areas. Some patients have no choice but to go through the fair deal scheme, under duress, because they have no choice to go to a centre that mirrors the way they were. The Mental Health Commission does fabulous work. It is like the NCT centre for mental health services. It provides recommendations about what has to be fixed or addressed. It is common sense. If those issues are addressed, a car or truck will pass the NCT. However, part of the system troubles me. Recommendations are made to an approved body. If it was any other system, if a report stated that all the hinges on the doors needed to be changed and that the switches are not great, those are simple things to address. If they are not being done, even when people are being told again and again to do it, where is the line drawn? I hate to say, "I told you so". The HSE is sticking its tongue out to the commission and saying that it is just going to ignore the recommendations. In the middle of that, over the course of five or six years, the patients suffer. Do the witnesses understand what I am saying? The commission produced reports on the Owenacurra Centre in 2016, 2018, 2020 and again in 2021. There are similar recommendations going back to 2016.
Mr. John Farrelly:
I am happy to respond about the new legislation, with regard to governance and fitness of the provider, and the idea of much more scrutiny. That is where governance and fitness come in. We have Sharing the Vision. A capacity review is ongoing in the Department and HSE to make sure that the units provide dignity for people. They have to be decent units that give people dignity and hope. That will be a challenge for Ireland. There are a number of centres. We have taken a position that centres should be good enough to give people hope and dignity. That will involve the HSE. Many premises have improved a lot over the last few years. We have identified premises to the HSE both at a regional and national level. Some regions are better at keeping their stock up to date than other regions, which is unfortunate for patients in those regions. With regard to Sláintecare and the reform of the HSE, no one is saying that the HSE does not need to be reformed and improved. Even the HSE recognises that. We hope that in the reform of the HSE, to have more accountability and better governance, that it will ensure that the buildings are good.
I am enjoying the discussion and debate. This is probably the most substantial work that will happen in the lifetime of this committee. The witnesses' insight into the legislation is welcome. Mr. Farrelly spoke about the independent complaints mechanism. Other NGOs called for this. I listened to his response to Senator Hoey. He said that legislation is welcome but that the commission does not have any control over the implementation of this. He also said that there could be an element of mistrust in the HSE and the statutory bodies. I have concerns about governance in the HSE. I have said that on the record. I want to address the reluctance to have an independent complaints mechanism. What if a person is in crisis and does not have the capacity to complain?
Mr. John Farrelly:
As the Deputy can tell, I do not really understand why someone would think that we need an independent complaints body. All that would do would be to cause a rupture in quality improvement and in addressing the complaints of a person. If people in an approved centre are not treated properly, they can make a complaint, which must be brought through the complaints process. The provider is required by law to investigate it. We monitor that. To put it a different way, from a quality perspective, it is through complaints, learning and openness that services are improved. If that is taken away from providers, they will not necessarily improve their service. If the Ombudsman is not happy with the service, or if we find an issue with a centre not properly investigating complaints, we will identify that. We do not really find that. I do not think that this would be helpful in the legislation. I think that it would cause more confusion than it would solve.
I think it is more helpful for the legislation to address advocacy and for people to be welcome to complain. There should be a culture of complaining being a good thing, because that is how you improve the system. The advocates would help people to complain when they need to. It is the same as any other part of the health system. If you were in hospital in Tallaght and had a complaint, you would want to address that to the people looking after you in Tallaght and then escalate it. That is essentially what we are saying and our position.
What about it being done retrospectively? People might not have the capacity to complain and not realise that there was a problem until months or years later. Is there a mechanism for people to go back and make a complaint or recommendations about the care that they felt they were getting?
Mr. John Farrelly:
I think people should be able to complain after the fact, as the Deputy says. We would probably discuss with the HSE at a national level whether it is conveying how much effort it puts into its complaint process. I know it does and that it has improved significantly. There is not necessarily a reason for this, but sometimes people do not want to complain. Mental health centres can be closed institutions and people can be involuntarily detained, but we have to move away from the culture of being afraid to do things, to being open and honest. Many staff in the mental health system want that to happen and would facilitate that. I do not think that an independent body would be useful or that it would change anything. It would get in the way of improving our services.
I thank Mr. Farrelly. I have two more questions. He mentioned continued use of coercive practices such as seclusion and restraint. What was not mentioned was the use of electroconvulsive therapy, ECT. I read a report from Trinity College Dublin in 2018 that stated that there were 48 involuntary uses of ECT in the previous five years. Does Mr. Farrelly have any concerns about the ongoing use of ECT, especially when it is involuntary?
Mr. John Farrelly:
We have strong rules about the use of ECT. We issue a report every year on ECT to ensure transparency. When we ask different people about it, some swear by it and say that it saved their lives. I ask Ms Keane to address the involuntary aspect because we have such strong rules about it to vindicate people's rights.
Dr. Susan Finnerty:
ECT, as Mr. Farrelly has said, is highly regulated in this country with the rules and code of practice on ECT. It is an important treatment for a small number of people who have severe depression with suicidal ideation and intent and for people who, because of severe depression, do not eat or drink. Mr. Farrelly mentioned that in those circumstances it is a life-saving treatment. It is life-saving because it acts quickly. If you put somebody on an antidepressant to treat severe depression, it can be up to four weeks before it kicks in. There is no guarantee that antidepressant will work and then you go on to another one. That is not an option if somebody is so suicidal they are a danger to themselves or they are not eating or drinking. You only have days. It is extremely important. There is a body of evidence that shows it is effective, going back decades. Various meta-analyses have been done over the years to test that and see whether it is true. It is. Analyses have found it works in about 60% of people. It is an important treatment.
Regarding involuntary patients, often people who are psychotically depressed or not eating or drinking and totally withdrawn do not have the capacity to consent. It is important that decision be made for them to save their lives.
Dr. Susan Finnerty:
The decision is made by the consultant psychiatrist with responsibility for the patient, who will do an assessment of capacity and, if he or she feels the person needs ECT as an emergency, contact another consultant psychiatrist to see whether the person is lacking in capacity and whether the person needs ECT. There is a form they have to fill out. There is an opinion of two consultant psychiatrists.
I thank Dr. Finnerty. She will probably answer the next question as well. I go back to the good report she produced yesterday, Access to Mental Health Services for People in the Criminal Justice System: Promoting Quality, Safety and Human Rights in Mental Health. In relation to this Bill, does the commission have concerns around the provision of transfer or admittance to the Central Mental Hospital? Is the commission satisfied with the provisions contained in the heads on forensic mental health needs?
Dr. Susan Finnerty:
The general scheme outlines how the transfer to the Central Mental Hospital takes place. It is not really an issue of the legality of the transfer from the Prison Service to the Central Mental Hospital. It is a question of capacity. As pointed out in the report, it is the fact there are not enough beds in the Central Mental Hospital for various reasons. That is the reason they are not getting treatment in the Central Mental Hospital. I am not sure if that answers the Deputy's question.
I thank Dr. Finnerty. I appreciate that. A lot of this stuff seems to be down to resources. Mr. Farrelly was confident the resources would be supplied. I am concerned about the appointment of the authorised officers. That needs to be looked at. It needs to begin now and should have begun already. There has been talk that the process has begun but I do not think there has been any addition to the staff. I might be wrong on that.
On resources for transferring prisoners from conditions in the general prison population that do not meet their needs into the Central Mental Hospital, there seems to be an issue. Does Mr. Farrelly think we will have adequate resources going forward in relation to the heads of Bill?
Mr. John Farrelly:
There are a couple of issues in terms of implementation. Even if there is a law and finances are allocated from the State, there is an issue around, for example, the HSE having the capability to ramp up, implement things and spend the money. That issue is evident in mental health over a number of years. That is a question for the HSE. There is a group for Sharing the Vision but our experience is there would need to be the management, particularly at a national level, such as a director of mental health. We think more capability and capacity is needed in the HSE to put in place all the things this Bill and Sharing the Vision will require.
Mr. John Farrelly:
Consider the amount of time An Garda has used section 12 over the period of Covid. We were up to nearly 10,000 times. If there was a fully functioning authorised officer system, you would imagine the Garda would only be used as a last resort. We do not have the figures but if the figures were there and everyone was proud of them, we would be hearing them loud and clear. There are issues there. If the HSE knows all this is coming down the line, you would imagine it has been preparing for it.
I thank the witnesses as well. I have a question about under-18s admitted to adult inpatient units. Head 128, section 108, "Admission of a child to an adult approved inpatient facility", still provides for the admission of under-18s to adult facilities. Under the reporting mechanisms of the UN Convention on the Rights of the Child, Ireland was instructed to end the practice of admitting under-18s to adult facilities. With the State report and review next year, how would the commission envisage the involvement of under-18s in the development of codes of practice and rules etc.? I want to get the witnesses' thoughts on that and on the section on under-18s.
Dr. Susan Finnerty:
Yes, there are children, usually of the age of 16 or 17, who are admitted to adult units. We have four CAMHS units plus two private units in the country. At any given time, the number of beds varies in those four units. It is dependent on a number of things, such as that the resourcing of the teams in the unit is high enough or that there are enough beds to admit the person. A further difficulty is that, sometimes, given the design of some of the units and if a child is critically troubled or disturbed, the unit may not be able to take somebody else into that particular part of the unit, which reduces the bed capacity.
That gives a background of what is available in CAMHS. It is not ideal that those under 18 are admitted to adult units. There is a code of practice on the admission of children. There is no adult unit in the country that would meet the standards in the code of practice because the code of practice outlines very clearly that certain therapeutic activities and programmes appropriate to that age group should be provided, and obviously they are not, and also that the layout and facilities are conducive to treating somebody under the age of 18, and they are not. Invariably, if we discover a child has been admitted to an adult unit, the unit is non-compliant with the code of practice.
In practice, we found the admissions are short in general, usually a day or two, maybe a little longer. There is really no emergency provision of beds for young people. There is one bed in Galway and Linn Dara at Cherry Orchard in Dublin provides an emergency service but not necessarily a bed. Therefore, there is sometimes literally nowhere for the child to go, so they need for their own safety to be admitted to an adult unit.
There are a number of areas in the CAMHS services, including the community services, which need to be strengthened. There will be provision of more beds with the children's hospital but we also need emergency beds and emergency provision of services to catch those young people who are in distress in the middle of the night and require somewhere that is safe for them to be until the situation can be looked at. That is where it is at the moment.
Is the Department of Children, Equality, Disability, Integration and Youth liaising with the Mental Health Commission on the amended legislation and the Assisted Decision-Making (Capacity) Act 2015? Perhaps this question is for Ms Flynn. Given the decision support service’s functions are within the commission, what concerns, if any, does the commission have around the provisions for 16 and 17-year-olds?
Ms Ãine Flynn:
The Assisted Decision-Making (Capacity) Act 2015 relates only to those over 18, so a relevant person within the meaning of that Act is not a 16 or 17-year-old. Broadly similar legislation in other jurisdictions does carve out a separate category of 16 and 17-year-olds but the 2015 Act does not. That has been mentioned in the disability committee as something that may be kept under review and reported on but, in the initial offering under the 2015 Act, it is over-18s only.
Ms Orla Keane:
In February 2020, pre-Covid, we asked the Department of Health if we could meet it and the Department of Children and Youth Affairs, as was, to have a meeting about some of the queries or comments about the draft heads of Bill that we had received. That started a discussion between the two Departments. We understand that, because of Covid, that was put aside but there has been re-engagement with them again about this. We also met with the College of Psychiatrists of Ireland in September 2020 and, following that, we contacted the Department and suggested that the child and adolescent consultant psychiatrists from the college were open and willing to give input to the Department, and that has also happened. It is very much collaborative because everybody has little bits of the story to add.
In terms of consultation with this group, the commission has undertaken three extensive consultation processes involving service users, the most recent being on the rules and codes, which my colleague, Mr. Kiernan, has undertaken. We also involved service users in our strategic plan. We will be suggesting either to the Department or, indeed, to ourselves, if we end up doing rules and codes for children, that we involve them in that process. We had one of the child and adult adolescent groups, SpunOut, speak to the commission last year so we already have some contacts with those groups. We would hope some of the advocacy services could help and support us in progressing that.
In terms of the children's part of the Act, from my perspective, I was there in November 2006 when the 2001 Act was commenced, and there was only one section relating to children. This will be a major new departure and it is very welcome. However, there are a couple of issues I would ask the committee to look at. Some of the time periods in the Act relating to children are quite long. A child who is voluntary in an approved centre can be made involuntary but that takes 72 hours whereas for an adult, it takes 24 hours. Three days for a child is a very long time. In addition, the court can make orders for 21 days and three months. We had recommended to the Department that these orders should be for 14 days. Again, and we all see this during Covid, being in lockdown for three months is a very long time, so for a child to be on an order for three months is a very long time. That is something we would ask the committee to look at and maybe recommend that those periods be reduced.
The other point is that there is provision for ECT and for the commission to provide rules in regard to ECT. The commission, in its submissions, made some queries to the Department as to whether it had looked at international best practice and things like that. Again, the committee might revert to the Department and maybe tease out a little more the merits of ECT for children at 16 and 17 years. If it is the case that children are to receive ECT, the commission will then do a separate process in terms of the appropriate rules in that regard.
Another issue is that it is imperative that children have their own legal representation. It was a recommendation the commission put forward and one the Department has taken on board. We really want to maintain it because the children have to have a voice.
The final point is the new world we live in regarding technology. We are all here today and many of us are attending remotely. Children, particularly 16 and 17-year-olds, should be able to attend hearings relating to them remotely. I know that can be a challenge with some of the District Courts and Circuit Courts because of the facilities available to them, but many of them have had a lot of work done over the last while. I would really promote that provision. The more that children can be involved in the process and what is going on, the better.
I have some general questions. My apologies that I had to attend another committee. I thank the witnesses for the submission. I know an awful lot of work has been done in this regard.
Having gone through the submission, I have a question on the "best interests" test. I ask the witnesses for a little more information on that test and how it is patient-centred.
Ms Orla Keane:
The current test in the Act is "best interests", which means that everything done for the person under the Act, either voluntary or involuntary, should be done in their best interests. That was interpreted by people and the courts in quite a paternalistic way. It was thought that we should move away from that concept and adopt a new concept of guiding principles. One of the Senator’s colleagues, who promoted the Mental Health (Amendment) Act 2018, introduced that concept, which also aligns with the guiding principles in the 2015 Act.
The guiding principles here set out how people should approach dealing with matters on behalf of persons. The person should be involved and if he or she has difficulties comprehending things, all relevant supports should be given. One should not use more information than is possible and one should not give information to other people unless it is relevant and necessary. This is very much bringing the person into the centre and having his or her will and preference as a key issue in how one goes about making decisions for the person if he or she is, as in some cases, an involuntary patient. The guiding principles are also to apply to voluntary patients.
This is very much a new form of best interests in the guise of guiding principles. It takes some learnings from the 2015 Act and moves away from the paternalistic approach where other people know best what the person wants to one where the person is brought to the centre of the process and his or her will and preferences are looked at.