Joan Collins (Dublin South Central, Independents 4 Change) | Oireachtas source

I have not really been involved in this debate, but Mental Health Reform, at a meeting of the Joint Committee on Disability Matters a couple of weeks ago, asked me to put forward amendments to support Deputies Cairns and Ward from the point of view what they went through on Committee Stage. I really want to support amendments Nos. 2, 36, 37 and 53.

I will make an appeal to the Minister. The Mental Health Commission, the Decision Support Service, the Irish Human Rights and Equality Commission, IHREC, the Centre for Disability Law & Policy, NUIG, the Department of Health, Ministers, Opposition Deputies and Government Deputies are in agreement that the discriminatory exclusion addressed in amendments Nos. 2, 38 and 53 must be addressed. If we have to wait for the Mental Health Act 2001 to be reformed, what protections will those involuntarily detained have in the meantime? It has taken seven years to get to the point of commencement with the Assisted Decision-Making (Capacity) (Amendment) Bill 2022. People involuntarily detained will be the only cohort receiving any sort of treatment who will not have their will and preference respected.

An advance healthcare directive is a statement set out by someone when he or she has capacity to make decisions about his or her will and preferences for care and treatment in the future. An advance healthcare directive will come into effect if and when the person becomes unwell and no longer has the decision-making capacity. People can make advance healthcare directives about a broad range of issues, such as the type of medication they prefer, the type of therapies that work best for them and the refusal of treatments such as ECT.

Under the Assisted Decision-Making (Capacity) Act 2015, people detained in hospital for mental health treatment are specifically excluded from legally binding advance healthcare directives. They have no legal right to have their advance wishes respected even though they had capacity to make decisions about their mental healthcare and treatment at the time of making their directives. There is no other group of individuals that is specifically excluded from this legal right. The exclusion is contrary to international human rights standards, including those outlined in the UNCRPD.

While advance healthcare directives can be made for mental health treatment care decisions under Part 8 of the 2015 Act, they are not legally enforceable for persons involuntarily detained under the 2001 Act. Amendments Nos. 2, 38 and 53 relate to removing section 85(7) and section 136 in order to allow advance healthcare directives and decision supports to be extended to those involuntarily detained under the Mental Health Act.

With regard to amendment No. 36, people aged 16 to 17 cannot consent to or refuse physical healthcare decisions. However, this right does not apply to mental healthcare decisions such as those dealt with in the Non-Fatal Offences against the Person Act 1997. People aged 16 to 17 do not have any right to consent to or refuse mental health treatment. Under-18s cannot refuse admission to hospital and guardians could decide to admit them without consent. People aged 16 or 17 cannot refuse a course of treatment, such as ECT, even if they wish to do so. The World Health Organization has criticised the use of ECT on children and young people and has recommended that its use should be prohibited under legislation. There is currently no national advocacy service for people under the age of 18 who are accessing mental health services. As a result, there is a risk that young people are not having their voices heard regarding their mental healthcare and treatment.

Part 8 of the mental health (amendment) Bill is set to provide for 16- and 17-year-olds to give or withdraw consent to treatment and mental health services if they are deemed to have capacity. The heads of that Bill state that the Assisted Decision-Making (Capacity) Act 2015 would apply for the purposes of conducting the necessary capacity assessments. However, the Act does not provide for decision supports for under-18s. Mental Health Reform has raised this with all relevant Ministers and in relevant submissions and briefing notes to date. The omission of a 16- and 17-year-old from decision-making rights is contrary to our obligations under the UN Convention on the Rights of the Child.

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