Mary Butler (Waterford, Fianna Fail)

I move amendment No. 131:

In page 57, between lines 8 and 9, to insert the following: “Definitions (consent to treatment)

42. In this Chapter—

“initial treatment period” means the period specified in section 47(1);

“further treatment period” means the period specified in section 47(3).”.

Amendments Nos. 131 to 134, inclusive, and Nos. 136 to 146 ,inclusive, will be taken together. Consent to treatment for involuntarily admitted people is one of the most important issues in this Bill. Officials in my Department have consulted with numerous stakeholders regarding these provisions throughout the development of the Bill and again since the publication of the Bill last summer. A small number of stakeholders raised concerns about the operability of the consent to treatment provisions, with particular consternation about the prospect that a person might be admitted, but would be unable to be treated if he or she is unable to consent to treatment and is not a risk of harm to themselves or others.

I believe the amendments being moved by the Government today represent the right balance between ensuring the rights of involuntarily admitted people to make decisions about their care and treatment is respected while also providing for timely access to care and treatment when necessary. Considering the developments in mental health policy and services over the past two decades, the 2001 Act does not fully reflect our approach to mental health services now, such as the shift towards community-based services, the adoption of a recovery approach in service delivery and the involvement of service users as partners in their own care and in the development of the services. The context in which mental health services are delivered is significantly different in 2025 to 2001 and our mental health legislation must reflect this. It is worth providing some detail on how consent to treatment works under the existing Mental Health Act, how the policy has developed over the drafting of this Bill, the policy in the Bill as initiated and the amendments being moved here today.

Part 4 of the Mental Health Act 2001 sets out how consent to treatment works in relation to involuntary patients under that Act. The Act states that, for a person to be able to consent, the responsible consultant psychiatrist must be satisfied the person is capable of understanding the treatment and the consultant psychiatrist has given adequate information to the patient. Furthermore, the Act states that a consultant psychiatrist can treat a person without consent only where the person is incapable of giving consent and where "the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering". Under the existing Act, where, in the view of the responsible consultant psychiatrist, the person has the capacity necessary to consent to treatment, then the person cannot be treated against his or her will. It is only where a person lacks capacity to consent to treatment that it can be given without the person’s consent. Part 4 of the Act also contains provisions in relation to the administration of psychosurgery, electroconvulsive therapy and medicines.

In 2015, an expert group published a list of 165 recommendations to amend the Mental Health Act 2001. Among those were a series of recommendations that sought to fundamentally change how consent to treatment works. These recommendations were that people should be supported to give informed consent to or to refuse treatment, that relevant decision supports under the Assisted Decision-Making (Capacity) Act 2015 be available to involuntarily admitted persons and that treatment could be administered to people who lack capacity in limited circumstances.

Officials in my Department carried out extensive consultation over a number of years on all aspects of the Bill, including on consent to treatment. Consultation included key stakeholders such as the Mental Health Commission and the HSE, as well as the Office of the Attorney General, and other key Departments, including the Department of Children, Disability and Equality. Furthermore, careful consideration of the Assisted Decision-Making (Capacity) Act 2015 was required to ensure that the Mental Health Bill aligned appropriately with that Act. Ireland ratified the UN Convention on the Rights of Persons with Disabilities in March 2019, and Department officials had to carefully consider how best to align the Mental Health Bill with the principles of the convention.

The Bill, as initiated, provides for an overhauled approach to consent to treatment. The Bill links into the Assisted Decision-Making (Capacity) Act as appropriate, such as where a person has been assessed as lacking capacity to make a decision under this Bill, an application under Part 5 of the Assisted Decision-Making (Capacity) Act must be made by or on behalf of the responsible consultant psychiatrist of the person concerned to request a decision-making representative be appointed or a decision-making order be made.

The Bill provides for treatment without consent to be given in certain circumstances, where the person has been assessed as lacking the capacity to consent to or refuse treatment: within 21 days of the person’s admission; where the person has a relevant decision support under the Assisted Decision-Making (Capacity) Act; or where the health or life of the person or others is at risk, either during the capacity assessment process or after the assessment process has concluded where an application under the Assisted Decision-Making (Capacity) Act has been made to the Circuit Court has been or will be made.

The Bill also provides for involuntary treatment to be provided in very limited circumstances where a person is a risk of serious and immediate harm to another person and refuses to consent to treatment, or a relevant substitute decision-maker refuses to consent to treatment. In such cases, an application for a treatment order to the High Court must be made to determine whether the limited criteria have been met. As I noted earlier, a small number of stakeholders contacted my Department to raise concerns about the operability of provisions related to consent to treatment. These concerns were primarily focused on the fear that people would be detained without being able to be treated if they were not a risk of harm to themselves or others and where they lacked capacity or a substitute decision-maker to consent to treatment. I have listened to those concerns and the amendments I am moving here today address these concerns.

Where a person has a valid, relevant substitute decision-making arrangement under the Assisted Decision-Making (Capacity) Act 2015, that decision-maker can consent to or refuse treatment. That includes an advance healthcare directive, a designated healthcare representative, and a decision-making representative appointed by the court. If any of those substitute decision-making arrangements are in place regarding a specific treatment decision, then the consent of that directive or representative is required. In cases where a person lacks capacity and does not have a relevant, valid substitute decision-making arrangement, the amendments to the Bill will ensure that those people will have appropriate access to treatment.

I will give a quick overview of the Government’s amendments. Amendment No. 131 provides for the insertion of a new section 42 that sets out definitions which are used in Chapter 3 of Part 3. Amendment No. 132 is a technical amendment to delete a term that is unnecessary. Amendment No. 133 replaces subsection (2) of section 43 to clearly state that a person with capacity may refuse any treatment and withdraw consent to any treatment at any time. Amendment No. 134 inserts a new subsection (5) in section 43 stating that consent or refusal or treatment must be granted for specific treatment, rather than a general consent or refusal. Amendment No. 136 is a technical amendment to correct a typographical error. Amendment No. 137 is a technical amendment to include reference to the first capacity assessment to be carried out by a responsible consultant psychiatrist if he or she thinks that the involuntarily admitted person may lack capacity to consent to or refuse treatment. Amendment No. 138 is a technical amendment to include reference to refusal of treatment, along with consent, to provide consistency throughout the Bill. Amendment No. 139 inserts a new section 46, which provides for treatment of people who have been assessed as lacking capacity by the granting or refusal of treatment by a substitute decision-making arrangement under the Assisted Decision-Making (Capacity) Act 2015.

These include a court appointed decision-making representative, a decision-making order from the circuit court, or an advance healthcare directive or a designated healthcare representative appointed by a directive.

Amendment No. 140 inserts a new section 47 which allows for treatment to be administered to an involuntarily admitted person who has been assessed as lacking capacity, or who is undergoing capacity assessments, for a period of 21 days or 42 days following admission. A person must meet criteria for treatment set out in this section.

Amendment No. 141 inserts a new section 48 which provides for an application to be made to the Circuit Court to seek the appointment of a decision-making representative or the making of a decision-making order where a person lacks capacity and does not have a valid substitute decision-making arrangement. The application to the Circuit Court must be made at any point within the 21 or 42 days following admission, and treatment may be administered before the application is made to the Court. This is important.

Amendment No. 142 inserts a new section 49 which provides for treatment to continue to be administered when awaiting the outcome of an application to the Circuit Court.

Amendment No. 143 inserts a new section 50, which was formerly section 51 of the Bill as initiated. This section provides for applications for treatment orders to the High Court in very limited circumstances.

Amendment No. 144 inserts a new section 51, which was formerly section 48 of the Bill as initiated. This section provides for the administration of ECT, subject to the consent of the person and only in accordance with the regulations made by the Mental Health Commission.

Amendments to section 46 make clear that valid substitute decision-making arrangements must be respected if in place.

Amendments to section 47 provide for treatment of involuntarily admitted people lacking capacity following their admission. Such people may be treated for a period of up to 42 days, increasing from 21 days in the Bill as initiated. An initial 21-day treatment window is provided for in the amendments, which can be extended by one further period of 21 days where it is approved by a second consultant psychiatrist.

The criteria under which a person can be treated within that initial treatment window has been expanded to include criteria based on the need for treatment. In the Bill as initiated, the criteria are restricted to risk of harm to self or others. Without amendment, this may give rise to scenarios where a person can be involuntarily admitted on the grounds of treatment but cannot be treated without consent on admission if they do not also meet the risk criteria. It should be noted that a person's capacity should be regularly assessed during their involuntary admission and if found to be capacitous, treatment cannot be given without their consent.

Section 48 provides for an application to be made to the Circuit Court to seek the appointment of a decision-making representative or a decision-making order from the court to vindicate the will and preferences of the person lacking capacity. The amendments allow for that application to be made at any stage within the initial treatment period of 21 to 42 days but require that the application be made before the end of the period. The amendments also allow for treatment to be administered to an involuntarily admitted person lacking capacity prior to the application being made.

Amendments to section 49 allow for treatment to be administered according to the treatment criteria of either risk or need for treatment while awaiting the determination stakeholders that the criteria for treatment for people who lack capacity in the amendments are different from the criteria for involuntary admission. On closer examination of the amendments, these stakeholders will clearly see that the criteria for admission and treatment are effectively the same. In fact, in relation to the risk criteria, the criteria for treatment are only that the person is at risk of serious and immediate harm to self or others and does not require the additional criteria for admission as set out in section 12(a)(ii). This means that any involuntarily admitted person lacking capacity may be treated, subject to the provisions of Part 3 Chapter 3, if he or she meets the criteria for involuntary admission.

See this speech in context