James Browne (Wexford, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Before I begin, I wish to make a general apology on behalf of my party colleagues, many of whom are attending the funeral of Deputy Sean Fleming's mother this evening. I welcome the large crowd in the Gallery who are from various sectors of the mental health community, including both representatives and those who have been through the system.

I am pleased to move this Bill which seeks to amend the Mental Health Act 2001. The Bill contains significant changes to strengthen the rights of people when they are in hospital for mental health care. Additionally, the Bill will also support the right of inpatients to make decisions about their own treatment by linking the Mental Health Act 2001 with recent law that affirms that everyone should be presumed to have the capacity to make decisions.

The Thirty-second Dáil convened a year ago this week and since then three mental health debates have taken place. Tonight's debate is the fourth which shows how far we have come as a society and a nation in breaking down barriers and saying "No" to the stigma associated with mental health. It is a step in the right direction but only one on a very long road. I have asked and will continue to ask that mental health be given the same priority as physical health. In that respect, I have written to the Taoiseach seeking the establishment of an Oireachtas joint committee on mental health. I am open to correction but believe that if established, it would be the first such committee in any parliament. If initiated, it would mean that mental health would be debated in the Oireachtas every week.

On 18 May last year, I was honoured to be named by my leader as my party's mental health spokesperson in this Dáil. Not one week has gone by when I have not met or spoken to an individual, family or group who have been affected by mental health issues. I have listened in awe at their sacrifices and in disappointment at the frustrations they face on a daily basis due to a lack of support.

In 2001, the Fianna Fáil leader and then Minister for Health, Deputy Micheál Martin, brought about the biggest and most significant reform of mental health legislation with the Mental Health Act, the first such legislation in over 50 years which radically changed how people with mental illness in Ireland were treated in our hospitals. In 2001, mental illness did not occupy the same space on the political agenda as it does today. The main objective of the 2001 Act was to address the civil and human rights of mentally-ill persons, while also putting in place mechanisms by which standards of care and treatment in our mental health services could be monitored, inspected and reviewed. In addition, the appointment of the Mental Health Commission in April 2002 created an implementation body to ensure that the intention of the Act was fulfilled.

Fianna Fáil, in agreeing to facilitate a minority Government, inserted into the confidence and supply agreement a condition that A Vision for Change would be fully implemented within the lifetime of the Government. A Vision for Change was developed under the then Fianna Fáil Government as a strategy document which sets out the direction for mental health services in Ireland. Since 2001, our understanding of mental illness and the rights of people suffering mental illness have advanced. In particular, we have had the UN Convention on the Rights of Persons with Disabilities, to which Ireland is a signatory. We need to change how we look at Acts of the Oireachtas that affect peoples' rights. They should be viewed as living Acts that can be readily amended and updated as our understanding and knowledge improves.

The Bill before the House today has two core aims, the first of which is to strengthen the rights of patients in key and clearly-defined areas. The second aim is to spur the Government into delivering a comprehensive Bill to address the many concerns of patients in terms of their rights as both patients and human beings, and to bring Ireland in line with the UN Convention on the Rights of Persons with Disabilities. Following Ireland's signing of the aforementioned convention, the 2013 expert group's report on its review of the Mental Health Act 2001 made 165 recommendations for changes to that Act. To date, only one of those 165 recommendations has been implemented. The Government has repeatedly failed to meet its own timetable for updating the Act. At the moment, there is not even a mention of a revision of the Act in the Government's current legislative programme. In that respect, this legislation also aims to compel the Government to do what it does not appear to be prepared to do voluntarily, namely, bring forward a comprehensive Bill to amend the 2001 Act.

I acknowledge that the Bill before the House does not address every issue. There are significant complexities around constitutional rights in such a Bill, including the right to liberty, bodily integrity, autonomy and privacy, as well as other rights. Opposition parties simply do not have the resources available to Government. Additionally, Opposition parties cannot propose Bills that give rise to Government expenditure. However, within those limitations, the amendments proposed today are targeted, significant and will, if enacted, strengthen the rights of patients in care. Enacting this legislation would be a positive step towards achieving the full amendment of the Mental Health Act 2001 in line with the recommendations of the expert group. It would also contribute to the Government's fulfilment of its obligations under international human rights law, including the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities. The Mental Health Act 2001 is currently in compliance with neither convention.

Psychiatric patients, both voluntary and involuntary, need increased protection. We must remember that in terms of involuntary patients, we are ultimately talking about detaining against their will people who have not committed any crime . This is an extremely serious step which involves curtailing peoples' rights. We must ensure that the rights of those patients are impinged to the most minimal extent possible. We must ensure that there are clear deprivation of liberty safeguards and protective measures in place. Of very real concern are those patients who are currently detained ostensibly as voluntary patients but who are in fact incapacitated, compliant patients. Over 90% of patients admitted to institutions each year are voluntary but the protections afforded in the 2001 Act currently only apply to involuntary patients. Some patients are admitted as voluntary patients in circumstances where they may not have the capacity to consent to voluntary admittance. Their capacity may be vitiated for any number of reasons including, for example, dementia. They may not be capable of making an informed decision, they may lose capacity while voluntarily admitted or the relevant information to allow them to give informed consent may not be provided to them and no one reviews their capacity to make such a decision on an ongoing basis.

The proposed amendments to the 2001 Act are in line with the recommendations made by the expert group. Section 2 amends the definition of a voluntary patient, as set out in the 2001 Act. The Act defines a patient as voluntary only if that person is not the subject of an admission or a renewal order, that is, involuntary. In other words, a person is voluntary only by virtue of the fact that he or she is not involuntary. This has led to a situation where individuals who do not have the decision-making capacity to consent to admission are being considered voluntary patients under the law. This section of the Bill provides an unequivocal definition of the term "voluntary patient" by ensuring that only individuals with the capacity to make their own decisions, with support if required, and to give consent to admission would be treated as voluntary under the 2001 Act.

Section 3 eliminates the principle of "best interests" which under the 2001 Act is the primary principle to be applied to decisions under the Act and provides that such decisions shall take into consideration the right to "the highest attainable standard of mental health consistent with least restrictive care [....] equality, non-discrimination and with due respect for the person's own understanding of his or her mental health". This section of the Bill also retains some of the principles already set out in the 2001 Act, including the right to autonomy, privacy, bodily integrity and dignity. This shift from "best interests", which is largely paternalistic in approach and interpretation, empowers people to be equal partners in their own mental health care and treatment. It also values the expertise and knowledge of individuals in understanding their own mental health difficulties and in recognising what is best for them in terms of their own care and recovery. Such principles place an emphasis on the primary importance of autonomy and the right to make one's own choices.

Sections 3 to 5, inclusive, place a strong emphasis on the rights of people to make their own choices.

It aligns the 2001 Act with the presumption of capacity and, if necessary, the provision of support, as set out in the Assisted Decision-Making (Capacity) Act 2015. The presumption of capacity holds even if it is the opinion of others, including mental health professionals, that the decisions being made by the person are unwise. Section 3(6) recognises that the elimination of "best interests", as set out above, will not apply in the context of children and young people under the age of 18.

Section 4 ensures that the principle of consideration of "best interests" will continue to apply to decisions concerning the admission and treatment of children and young people under the age of 18. The best interest principle for children is in line with the UN Convention on the Rights of the Child. The voice of the child must be heard and given due weight in accordance with his or her age, capacity and maturity and with due regard to his or her will and preferences. This is also in line with the UN Convention on the Rights of the Child.

Section 5 amends the 2001 Act to include both voluntary and involuntary patients in the existing provisions relating to the definition of consent to treatment. The consent to treatment provisions currently set out in the 2001 Act do not specify that they apply equally to voluntary and involuntary patients. This section of the Bill expands the definition of consent to treatment and explicitly provides that all voluntary and involuntary patients must give consent to treatment delivered in acute mental health services.

Section 6 amends the 2001 Act by including the words "voluntary or involuntary" in order to affirm that the consent of both voluntary and involuntary patients is required under section 57 of that Act. This section of the Bill also amends the 2001 Act by narrowing the circumstances in which treatment can be administered without the consent of the individual. It provides that treatment cannot be given without consent other than "as a last resort" and in keeping with international human rights.

Ultimately, this Bill is about extending dignity and respect to patients while supporting their right to autonomy. It is about ensuring they retain their voices and have those voices recognised, respected and taken into account. I look forward to the debate on it.

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