Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I welcome those listening to the debate in the Gallery tonight. I thank Deputy Browne for introducing this Bill and I recognise the importance he and other Members attach to the need for introducing these changes to our mental health legislation. I agree with them that we need to change our mental health legislation and to do this as soon as possible. We also need to ensure that when the changes are made, they are the right ones and have the intended effect. I welcome the debate this evening, as it affords another opportunity to Members to continue our national conversation about mental health and, in particular, to examine our mental health legislation, which is focused primarily on the processes, safeguards, and protections around involuntary detention and treatment.

From a personal and Government point of view, I want to stress the significance we place on providing and improving services for those in society who are unfortunate enough to suffer from mental illness. We all know that mental illness knows no boundaries. As many Members pointed out, there are many fantastic people working to provide excellent mental health services. In addition to providing the breadth of services required both on a community and hospital level to all who require it, we know there is always more to be done in promoting positive mental health and in reducing stigma. I am glad to see many Members wearing their green ribbons tonight as part of the national awareness campaign about mental health problems. This year, we are developing services around clinical programmes for dual diagnosis, attention deficit hyperactivity disorder, ADHD, eating disorders, perinatal mental health and the development of seven days a week and 24-7 services.

Where the law is concerned, the challenge at times can be the need to keep pace with improvements in human rights standards and medical developments to ensure the legal regime governing mentally ill persons is both responsive and appropriate. In this regard, there must be an ongoing dialogue between politicians, stakeholders, doctors and lawyers to work together to make sure our mental health legislation reflects the correct balance between providing rights for those detained in psychiatric hospitals and providing appropriate protections on the other hand.

We must recognise, however, that of themselves laws do not heal people. Only services and treatment can do that. The law can create a social and regulatory environment, however, that assists medical professionals in delivering their services in a manner that is both ethical and respectful of the rights and needs of the mentally ill.

In 2015, an expert group review of the Mental Health Act 2001 was published. This first significant review was informed by A Vision for Change, our national mental health policy, as well as the UN Convention on the Rights of People with Disabilities, both of which were published since the 2001 Act was enacted. The review provides a clear and complete roadmap for how we amend our mental health legislation for the better. The review, which contains 165 recommendations, is progressive in nature. First and foremost, it sets out to promote and protect the rights of persons with severe mental illness. This is in addition to promoting access to the most appropriate and highest achievable standard of care and support. One of the key recommendations, which I welcomed and which is referred to in Deputy Browne’s Bill, is the move from paternalism and best interests to a service guided by autonomy, self-determination, and respect for the person’s dignity with a presumption that the person is best placed to determine what promotes and constitutes his or her own dignity.

Before we go into the detail of Deputy Browne’s Bill, it is important we recognise that the template for revising the 2001 Act is the expert group review which received broad support on its publication. The Government has already approved the preparation of the general scheme of a Bill to reflect these changes in revised legislation. This work is under way at official level, with the final text of the changes expected to be significantly progressed by the end of this year. There are two significant points I want to emphasise. First, I recognise that stakeholders are keen to see this text sooner rather than later and I understand their wish to see at least some changes emerge more quickly. I share that view, but it is also my responsibility to ensure the changes made are the right ones and have the intended consequences. There is a general acceptance that the changes now being made are significant, complex and so interlinked in many parts that it is entirely appropriate that these changes would be best introduced as a package.

The previous Government did introduce a priority amendment relating to the administration of electroconvulsive therapy, ECT, and medication over three months which came into law in February last year. This was an important first change and the fact it was a relatively stand-alone provision in the legislation allowed for it to be introduced at an earlier stage.

The Mental Health (Amendment) (No. 2) Bill 2017, sponsored by Deputy Browne and published on 23 February, has three main goals. First, it seeks to amend the existing definition of voluntary patient in the Mental Health Act 2001 to include the need for the patient to consent to admission. Second, it seeks to replace the existing principal consideration in the Bill of best interests with several principles including, inter alia, highest attainable standard of mental health, autonomy, dignity and with due respect for the person’s own understanding of his or her mental health. Third, it seeks to link the issue of consent more closely with section 3 of the Assisted Decision-Making (Capacity) Act 2015 which deals with a person’s capacity to be construed functionally. The last two changes relating to best interests and consent closely mirror recommendations of the expert group review of the 2001 Act. The move away from the often paternalistic interpretation of the existing legislation, best identified by the inclusion in the Act of the principal consideration of best interests, is both necessary and welcome.

We all want to see a situation where, in so far as possible, the individual has the final say in what he or she feels is in his or her best interests and that he or she receives the best possible quality of service he or she needs to reach the highest standard of mental health. This change will effectively move away from paternalism and place greater autonomy in the hands of the individual.

While the Assisted Decision-Making (Capacity) Act 2015 was not in place when the expert group reported, nonetheless what the Deputy’s Bill has proposed would be considered to be broadly in line with what the group proposed on consent and capacity. The first change relating to the need specifically to include consent in the definition of voluntary patient was fully accepted by the expert group and is my top priority change at this time. This change is also required to comply with the UN Convention on the Rights of Persons with Disabilities.

While what is proposed is absolutely necessary, there is one significant issue in the Bill I must highlight. If we change the definition of voluntary patient as proposed, then persons without capacity who need inpatient mental health treatment but do not have a mental disorder will not be able gain admission to a psychiatric hospital because they cannot personally consent. A new definition of voluntary patient, which includes the need for consent, must commence only when other changes are introduced to allow patients without capacity to access treatment. In this regard, the Department of Health is in discussions with the Department of Justice and Equality about including new provisions relating to deprivation of liberty in the Assisted Decision-Making (Capacity) Act 2015. This is complex new legislation which will also cover anyone who lacks capacity and is a resident in a nursing home or facility for persons with disabilities or mental illness. The draft provisions being worked on will be introduced on Committee Stage of the Disability (Miscellaneous Provisions) Bill 2016 which has already completed Second Stage in the Dáil.

The expert group review initially recommended that persons who lack the capacity to consent to voluntary admission, often called "compliant incapacitated", should be placed in a new patient category under the 2001 Act to be known as "intermediate". The idea was that such patients would also have available to them all the safeguards available to involuntary patients under the Act. Since then, however, it has become clear that all persons going into residential care who cannot, due to lack of capacity, consent to such admission must have safeguards in place. This is to ensure their rights are protected and that their will and preferences, to the greatest degree possible, are respected as set out under the Assisted Decision-Making Capacity Act 2015.

It makes sense that, with the new deprivation of liberty safeguards being put in place, it offers a better and more consistent route to deal with compliant incapacitated patients seeking treatment in a psychiatric hospital or unit.

It should also be mentioned that whereas the priority amendment to the Mental Health Act 2001 relating to changing the definition of voluntary patient can be put before the Oireachtas in the coming months, any such change agreed by the Oireachtas cannot be commenced until the decision support service to be established under the Assisted Decision-Making (Capacity) Act 2015 is operational. This is because the draft safeguards currently being worked on at official level and discussed with the Department of Justice and Equality envisage a role for the decision support service and, therefore, before such provisions can be operationalised, the support service needs to be in place. A steering group of officials from the Departments of Health and Justice and Equality, as well as the Mental Health Commission and the Office of Wards of Court, chaired by the Department of Justice and Equality, is working on the establishment of the decision support service. A director for the decision support service is currently being recruited but there is no doubt that the establishment and operation of this service will be a complex undertaking requiring significant preparation.

I once again thank Deputy Browne for introducing his Bill. We are all very much in agreement that the changes he is proposing need to be made and I hope he and all other Deputies will accept that the change to be made to the definition of "voluntary patient" must be our priority at this time alongside the associated changes to be introduced under the deprivation of liberty safeguards. This is the focus of my officials' work at the moment and I will be happy to discuss these details further when a suitable draft of the deprivation of liberty safeguards can be made available. I am not, of course, forgetting the two other significant changes proposed by Deputy Browne but when the voluntary patient definition change is agreed along with the necessary deprivation of liberty text, we can then look again at these changes in light of progress made on the general scheme of the overall Bill to revise the Mental Health Act 2001. I am very conscious that other Members who contribute to this debate may have other priority changes that they would like to see take place and I ask that, in raising such matters, they bear in mind that we expect the draft of a general scheme of a Bill to be significantly progressed by the end of this year. As a result of the of the interconnected nature of many of the changes to be made, there is a clear logic in proceeding with the bulk of these changes as part of a single amending Bill. I look forward to Deputies' contributions.

See this speech in context