Mary Butler (Waterford, Fianna Fail)

I will make a couple of points about what was raised. To be clear, as regards the amendment that was proposed, sections 2 and 3 of this amendment are already in this section of the Bill. That part of it is already in place. My understanding is that sections 2 and 3 will be agreed. The Mental Health Bill extends the ability of anyone detained under the Assisted Decision-Making (Capacity) Act such that they can make advance healthcare directives and can access the courts. I will address the lacuna the Deputy talks about as regards the Assisted Decision-Making (Capacity) Act on Report Stage. When this Bill started out, the Assisted Decision-Making (Capacity) Act had not been enacted. As the Deputy knows since we have discussed this many times, there is crossover with the Department of justice and the Department of disability and children, so those Report Stage amendments will come. They are still being worked on. They are very technical. It is just a matter of trying to make sure that everyone can make an advance healthcare directive.

Again, this is about consent. We all have contact with people who might have an enduring mental health condition. That might be challenging as regards their mental health. We have all had cases, some of them involving family members, and there are days of the week when a family member or friend might give consent for a member of their family to be involved in their care and treatment.

That can change overnight. That is the mean reason I cannot support this amendment. A person may have a mental disorder that meets the criteria for involuntary admission but still retain some level of decision-making capacity. Under these proposed criteria, these people would not be able to be admitted. That is the worry. On what has been proposed by the Deputies, there is a small cohort for whom it would make it more restrictive to be involuntarily detained. That is why I cannot support it. I am not trying to object to amendments for the sake of it. That is not what I am about. It is all about engagement and trying to make this the best Bill it can possibly be. Capacity is not a binary; it can fluctuate over time and even within a day. If the person lacks capacity on the day of his or her admission but regains it a day or two later, under the proposed criteria, that person's order may be revoked. Somebody may be very ill and not have capacity when being involuntarily detained but if he or she regains capacity two days later, that person can leave of his or her own free will even where a consultant and multidisciplinary team feel treatment is still required. It is for that reason I cannot support that part of the amendment. As I said, two thirds of it are fine. A small cohort of people are involuntarily detained who may have capacity today and may not have it tomorrow but still need treatment. That is the reason.

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