Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I was not aware that the Deputy was going to raise this specific issue, but I will update him on what the Government is planning to do at policy level. We can respond to the Deputy on a bilateral basis in more detail.

The Assisted Decision-Making (Capacity) Act 2015 does not extend to people who are involuntarily detained under the Mental Health Act 2001 or detained subject to an order under the Criminal Law (Insanity) Act 2006. The Attorney General's office has identified legal issues that need to be addressed before the 2015 Act can be extended, specifically around ensuring that detention orders continue to be valid in cases where all treatment is refused. The Government supports the extension of the principles and provisions of the Act and its 2022 amendment Bill to individuals whose treatment is regulated by Part 4 of the Mental Health Act. The Government will extend these provisions to this cohort of people through the mental health Bill, which is being drafted.

People accessing mental health services generally can avail of decision-making supports under the 2015 Act, including people receiving treatment on a voluntary basis in approved centres. The Act provides for the introduction of decision-making supports to help individuals with impaired decision-making abilities to make decisions about finances, healthcare and personal matters. The Act is not yet fully commenced. The Department of Children, Equality, Disability, Integration and Youth has prepared an amendment Bill, which is expected to pass through the Oireachtas this month. Its amendments will allow the Act to be fully commenced. Currently, the 2015 Act's provisions do not apply to people whose treatment is regulated under Part 4 of the Mental Health Act, those being, people who are involuntarily detained under that Act and people detained under the Criminal Law (Insanity) Act 2006.

On a parallel track, the Department of Health is progressing a mental health Bill based on the general scheme agreed by the Government last July. It is being drafted by the Office of the Parliamentary Counsel. The Minister of State, Deputy Butler, has put a considerable amount of work into it.

The Department of Health sought legal advice from the Attorney General's office. While the official advice has not been received, the Department has been informally told that, if the 2015 Act is amended so that its provisions fully apply to people detained under the Mental Health Act, there is a risk that, where such an individual refuses all treatment, the basis for his or her detention may become invalidated. The Attorney General's office has advised that further work is needed to safeguard against a situation arising in which people who pose a risk to others cannot be detained and treated where they refuse all treatment. The office has also advised that this policy work would be more appropriately addressed in the mental health Bill. That Bill will significantly update and overhaul existing mental health legislation, including provisions relating to consent to treatment under Part 4.

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