Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

Before I read out the official response, with which I agree, I must say that when we put in place a group to review the Mental Health Act, we continuously stressed that its members had to take cognisance of the fact that we were also developing capacity legislation. The group's recommendations around this issue are quite interesting. We are currently devising the general scheme of a Bill to amend the Mental Health Act of 2001, which dovetails with this legislation. That is important, and it is what Deputy Mac Lochlainn is seeking to achieve with his amendment.

Section 119 of the Bill seeks to ensure that there is no conflict between the Bill and the Mental Health Act 2001 with respect to the treatment of a patient with a mental disorder in an approved centre. It is clear from this section that a person with a mental disorder receiving treatment in an approved centre is governed by Part 4 of the Mental Health Act 2001. Under that Act, one of the conditions that a patient must fulfil in order to be involuntarily admitted to an approved centre is that he or she must have a mental disorder as defined in section 3 of the Act. Section 8 of the Act provides that a person may be involuntarily admitted to an approved centre pursuant to an application under section 9 or 12 and detained there on the grounds that he or she is suffering from a mental disorder. Therefore, all persons referred to in section 119 would have to be involuntary patients in an approved centre admitted under the Mental Health Act 2001.

Deputy Mac Lochlainn's amendment seeks to ensure that the Assisted Decision-Making (Capacity) Bill applies to all persons receiving treatment in an approved centre, with the exception of those referred to in subsections (1) and (2) of section 119 or otherwise expressly provided by any other provision of the Act - that is, involuntary patients. Therefore, it would appear that the persons to which this amendment could apply are voluntary patients receiving treatment in an approved centre. Sometimes a perverse logic appears in legislation.

It is contested that section 119 already provides for the amendment that the Deputy is seeking by expressly not authorising a person to give treatment for mental disorder or to consent to a patient being given treatment for mental disorder if his or her treatment is regulated by Part 4 of the 2001 Act - that is, involuntary patients - and the implication is that the Assisted Decision-Making (Capacity) Bill applies to all other persons, including those voluntarily admitted to an approved centre, once they fulfil the definition of a relevant person in the Assisted Decision-Making (Capacity) Bill.

I recently received Government approval to proceed with a general scheme of a Bill to amend the Mental Health Act 2001 based on the recommendations of an expert group report published in March this year. The expert group report contains 165 recommendations, a number of which relate to the assessment of capacity. It is interesting to look at what the group is recommending and what is already contained in the Bill. The expert group acknowledged in its report that when revised mental health legislation is being framed a further look at the final proposals in this Bill will be required. The group was not certain how this Bill would finally shake out and had to make certain assumptions.

The expert group has recommended that it will be necessary to develop simultaneously recommendations and guidelines for the assessment of capacity of persons who require admission to an approved centre for mental health treatment.

In other words, the group fully accepts this position. Before the Bill was drawn up, it expressed the view that capacity must also be assessed when a person is being admitted or assessed for admission. The expert group was very clear on the need for the admitting mental health professional to establish if the person has the capacity to understand and give his or her consent to the proposed admission to an approved centre. If the admitting mental health professional forms the view that the person may lack capacity to understand and give his or her informed consent to the proposed admission, he or she must refer the person for formal capacity assessment. If, following assessment, it is deemed that a person has capacity to admit himself or herself, a voluntary admission may proceed. If it is deemed that the person needs support to understand, make or convey this decision, such support must be provided and the exact detail of how this support will be provided will be examined in further detail during the preparation of the general scheme of the revision to the Mental Health Act.

As outlined, the revision of the Mental Health Act 2001 will put procedures in place to ensure the capacity of persons being admitted to approved centres is assessed and, where necessary, supports are put in place. The exact detail of how this will work and how it will interact with the legislation before us will be explored and examined in greater detail during the preparation of the general scheme of a Bill, a process that is under way in the Department of Health.

There may be a danger that the proposed amendment will be interpreted as meaning that all patients receiving treatment in an approved centre will need to avail of the provisions of the Act, which cannot possibly be the case. While a large number of patients will lack capacity or need assistance making decisions, there will be patients with full capacity who will be able to decide on all issues by themselves. The issue of whether a person needs the assistance of the Act should be determined by whether he or she is a "relevant person", as outlined in the definitions, not by the fact that he or she is receiving treatment as a voluntary patient in an approved centre.

That was a long-winded way of informing Deputy Mac Lochlainn that I will not accept his amendment. I hope he now understands the reasons for my decision.

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