Professor Eilion?ir Flynn:

One of the compromises, which the Deputy will be aware, that was made by the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman, when he amended the Assisted Decision-Making (Capacity) Act was to extend some of the provisions around the applicability of AHDs to some people involuntarily detained under the Mental Health Act. That is on the civil side rather that the criminal detention side, which is what we are focusing on today. Directives were never on the table from the Minister, as far as I understand, regarding some people detained in the CMHl, for example, whether they are unfit to stand trial, not guilty by reason of insanity or been transferred from a prison environment to the CMH, nor any willingness to extend, legally binding advance healthcare directives to that particular group. Understandably, a lot of the focus has been on people involuntarily detained under the Mental Health Act on the civil side, and outside of the criminal justice system, needing to have their AHDs respected. That is really important and we fully support that. In fact, we are disappointed that that has not occurred in the amendments to the Act but this community was even more marginalised. People detained in the CMH were never really part of the discussion at all about having a legally binding AHD. They are also excluded under the Assisted Decision-Making (Capacity) Act 2015 from having their say, even if they make a perfectly valid AHD when they are well and setting out their wishes in terms of what treatments they would want to refuse if they were to subsequently lose capacity.

Those directives will not be followed or upheld and do not need to be respected under the law if those people are then found to be not guilty by reason of insanity or not fit to stand trial or if they are transferred out of a prison environment and into the CMH for some other reason. In such cases, they fall within the provisions of the Criminal Law (Insanity) Act 2006 and are specifically legally excluded from having legally binding AHDs. That is concerning. We understand why there might be a lack of willingness to extend legal rights to this group on the one hand but, on the other, this is a marginalised group of people who are already living in an extremely restrictive environment. As we know, having some measure of control over decisions made about their treatment is critical for people's recovery and may also help to address some of our ongoing concerns about the time people spend in these settings. If people had more control and choice with regard to their treatment options, they might not need to be detained in these settings for such long periods.

For all of those reasons, it is concerning that there has not been more advancement in respect of what the Assisted Decision-Making (Capacity) Act can offer to people in these settings in terms of decision-making supports. That is specifically on the AHD side. There is nothing to prevent people from using the other support options under the Act, including decision-making assistants or co-decision-makers with regard to the support they would like for making decisions in general. However, it is important to acknowledge than any AHDs made by individuals detained in the CMH will not be legally binding. My colleague, Ms Ní Chaoimh, would also like to come in on this.