Mary Butler (Waterford, Fianna Fail)

I do not believe amendment No. 29 is necessary as, under the Bill, a person may only be involuntarily admitted when the consultant psychiatrist believes that person has a mental disorder that meets the criteria for involuntary admission. If at any point during the person's admission the responsible consultant psychiatrist no longer believes the person meets the criteria for involuntary admission, that person must be discharged. That is what is in the Bill. This can happen at any time during the 21 days of the initial admission order or at any point during any renewal order. As such, it is not necessary to include "no more than" because if the responsible consultant psychiatrist believes the person no longer meets the criteria before the end of the 21-day period, he or she is legally obliged to discharge that person, as per the Bill.

Amendment No. 30 does not align with the principles of the Assisted Decision-Making (Capacity) Act 2015. The 2015 Act presumes that all people have the capacity to consent and that a capacity assessment should only be carried out where there is a reasonable belief that a person must lack capacity. It does not provide for automatic capacity assessments, as this presumes that a person lacks capacity. I know it is very technical but a significant amount of time has been spent on this piece of the Bill. Furthermore, capacity assessments should be specific to a decision rather than a general status determination.

Section 23 provides for the duration and renewal of an involuntary admission order. That is already in a different section of the Bill. It does not include any information on consent to treatment for involuntarily admitted people. Capacity assessments are regularly carried out during a person's involuntary admission, under the current Mental Health Act, and that will continue under this enactment.

A consultant psychiatrist must be satisfied that a person continues to lack capacity before treatment can be administered at any point. This is the new person-centred approach. If, after a few days of treatment of a person who lacks capacity, the consultant psychiatrist believes that person may now possess the capacity necessary to make decisions about their care and treatment, the psychiatrist is obliged to carry out a formal capacity assessment. As stated, the Bill makes it clear that a person with capacity cannot be treated without their consent, outside of very limited circumstances on application to the High Court.

It may be too prescriptive to specify in primary legislation how regularly a capacity assessment should take place. This might be better left to secondary legislation, or guidance or a code of practice from the Mental Health Commission.

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