Cathal Crowe (Clare, Fianna Fail)
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I welcome the Minister of State, Deputy Butler.

Amendment No. 1 in the names of Deputies Clarke, Cullinane and Ó Murchú has been ruled out of order. It was previously rejected in a committee of the whole Dáil.

Cathal Crowe (Clare, Fianna Fail)
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Amendment No. 2 in the names Deputies Clarke, Cullinane and Ó Murchú arises out of committee proceedings. Amendments Nos. 2, 3, 5, 34, 39, 49, and 121 to 133, inclusive, are related and will be discussed together. Does Deputy Clarke wish to speak to these amendments?

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I move amendment No. 2:

In page 16, to delete lines 32 to 35 and substitute the following: “ “mental health difficulty” and/or “psychosocial disability” mean, in relation to a person, any mental disorder, illness or disability, whether of a continuous or intermittent nature, which affects the person’s thinking, perception, emotion, or mood and impairs the mental function of the person;”.

We had this debate at length on Committee Stage but it is important and I want to come back to it. Words matter. How people feel about themselves matters, as does how they and others view the challenges they may have with their mental health care.

The definition of a mental disorder does not sufficiently capture those struggling with mental health issues, particularly those who do not have a formal diagnosis, which may be a result of various factors, including lack of access to diagnostic services. The term "mental disorder" implies a clinical and medical model of mental health but ignores the social, cultural and sociological factors which contribute to mental distress. Recovery-based models emphasise empowerment, self-determination and social inclusion. This reinforces my previous statement on how words matter. Acknowledging psychosocial disability would also better align us with the UN Convention on the Rights of Persons with Disabilities and the social model of disability where the term is used. It also lays the foundation for more holistic support by acknowledging both mental health difficulty and psychosocial disability. This amendment seeks to ensure the provision of multidimensional support. That is not just medical treatment but everything else a person needs to overcome the illness they have and to live their best life.

Liam Quaide (Cork East, Social Democrats)
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The use of the term "mental disorder" is archaic and pathologising. Language reflects reality but also shapes it, and the term "mental disorder" is reductive medicalising. It has the potential to objectify people with mental health difficulties. We have had a long history of that and stigmatisation. This is something we need to move away from, not only in our concrete actions but also in the language we use.

It is also unnecessary in the Bill. Every instance of the term in this Bill is qualified by further comments on severity and impact, and that includes the sections on involuntary treatment. It is not as if "mental health difficulties" trivialises someone who might require involuntary admission or treatment because you can have severe mental health difficulties just as you have mild mental health difficulties. I continue to advocate for the substitution of the term "mental health difficulties" for "mental disorder" in the legislation, in line with Sharing the Vision, our national mental health policy.

It is also worth noting that people in secondary and emergency mental health services typically do not meet the criteria for just one so-called mental disorder. They tend to experience a range of mental health difficulties which overlap diagnostic categories. In this sense, the term "mental disorder" is also simplistic. "Mental health difficulties" is more reflective of the multifaceted nature of severe psychological states. "Mental disorder" suggests an outdated medical model of these states and personality patterns.

Mary Butler (Waterford, Fianna Fail)
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I do not intend to rehearse the extensive debate on similar amendments which Deputy Clarke raised on Committee Stage. I acknowledge the amendment tabled by Deputy Quaide.

I already moved the Government amendment on Committee Stage to amend the definition of "mental disorder" by inserting references to "serious" and "significant" in the definition to address concerns the definition was too broad. It is important to ensure there is a legal distinction between the type of condition that is more severe and enduring and may lead to involuntary admission, and other mental health difficulties which may require treatment but will not lead to involuntary admission.

More than 90% of mental health service provision is in the community and the term "mental health difficulty" is often used in the context of people accessing those services. It is important there is a legal distinction between a mental health difficulty and a more severe and enduring mental disorder. While any term used to describe mental health conditions may be contested, I do not believe the alternatives to "mental disorder" proposed here on Committee Stage are the better options. I am not opposed to using a term other than "mental disorder", however, if a suitable alternative is proposed. I do not believe "psychosocial disability" or "mental health difficulty" are better options. At the same time, when we get to the Seanad with this Bill, if a wording other than "mental health disorder" is proposed, I will certainly consider it but I do not believe either of the two suggested on Committee Stage and now on Report Stage are right either.

I know it is complicated. I would not call the wording archaic but, because 90% of mental health service provision in Ireland is in communities and those people would have mental health illness and mental health difficulties, the term "mental health disorder" is more appropriate for those who are involuntarily detained or even voluntarily detained.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 3:

In page 16, line 32, to delete “ “mental disorder” ” and substitute “ “mental health difficulties” ”.

Cathal Crowe (Clare, Fianna Fail)
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Amendment No. 4 has been ruled out of order. It was previously rejected in a committee of the whole Dáil.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 5:

In page 18, line 5, to delete “mental disorder or other”.

Cathal Crowe (Clare, Fianna Fail)
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Amendments Nos. 6 and 7 have been ruled out of order. They were previously rejected in a committee of the whole Dáil.

Cathal Crowe (Clare, Fianna Fail)
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Amendments Nos. 8, 26, 33, 50, 53, 72, 74 to 86, inclusive, 89, 90, 92 to 96, inclusive, 105 to 109, inclusive, and 118 to 120, inclusive, are related and may be discussed together.

Mary Butler (Waterford, Fianna Fail)
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I move amendment No. 8:

In page 21, lines 4 and 5, to delete “Public Expenditure, National Development Plan Delivery and Reform” and substitute “Public Expenditure, Infrastructure, Public Service Reform and Digitalisation”.

The amendments in this grouping are all technical amendments relating to changes required to ministerial titles previously used in the Bill. These amendments update the titles of the Ministers for justice, children and public expenditure.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I move amendment No. 9:

In page 21, line 9, after “Act” to insert “and shall carry out an interim review after 2.5 years”.

This is an area that has me very concerned. While five years is some progress, it is not enough. The Government has the opportunity here to put some very real and substantial oversight into the Bill by accepting the Sinn Féin amendment which proposes the carrying out of an interim review after two and a half years. Five years is too long; it needs to be much quicker than that. Without the two-and-a-half-year review, my serious concern is any unintended consequences will not be highlighted quickly enough for us to be able to make meaningful decisions and changes. We could see implementation failures. Reviewing after two and a half years, however, would allow us to ensure those do not become embedded as the norm. It would also highlight emerging issues coming through.

The Bill, when passed, will affect some of the most vulnerable people in our society, many of whom are in crisis, especially those subject to involuntary admission. If legislation has unintended negative consequences, a five-year review may allow significant harm or inequality to persist for too long. A two-and-a-half-year review would ensure earlier accountability and correction where needed. A shorter-term review will allow almost real-time monitoring and course correction during the lifetime of the Act and not just afterwards.

It could improve public trust and give Members of the Oireachtas, the health committee, service users, clinicians, stakeholders and third parties concrete data and feedback to inform ongoing legislative improvements. Including a two and a half year review would bring us in line with international human rights frameworks that demand timely scrutiny of coercive and high-impact legal provisions.

Mary Butler (Waterford, Fianna Fail)
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I thank Deputy Clarke for the amendment. Section 8 of the Bill provides for a review of the operation of this enactment five years after its commencement. If it is necessary for a review to be carried out sooner than five years after the commencement of this enactment, that option will be available to the Government of the day. Section 8 of the Bill provides for a review to take place not later than five years after commencement. This means that the review may take place at any time within the five-year period if it is the wish of the Minister of the day; that is my understanding.

I believe we will need significant time for the legislation to bed in across the mental health services and there will be a significant lead-in time, as we have discussed. I am not sure whether we would be able to deliver a meaningful review after two and a half years. However, section 8 of the Bill, which we have already voted on, provides for a review to take place not later than five years after commencement, which means the review can take place at any time within the five-year period. Therefore, I think it is already covered.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I understand that completely. My concern is that “not later than five years” can mean four years and 364 days. I want to see something that is more tangible, and I think it needs to be put into this Bill. While five years is a standardised approach, two and a half years is much more effective because it allows us, as legislators, to make the appropriate changes as soon as possible. It means those who are delivering the care, receiving the care or advocating on behalf of those receiving the care can point to a definitive line or definitive timeframe and say that the review will be done within two and a half years. If the full review was to be done within the four years and 364 days, that is well and good, but two and a half years is a halfway point. It allows people to look at it, engage with it and ensure that those of us who have been handed the responsibility of managing and developing legislation act as quickly as is appropriate.

Mary Butler (Waterford, Fianna Fail)
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I am satisfied with the five years. The whole Bill will not all be enacted on the same day. I expect the parts of it regarding the governance of CAMHS and community premises to come first. The changeover in age verification and the piece in regard to voluntary detention and the Garda may take longer until we have all the authorised officers in place. To set a definitive timeline of two and half years is not appropriate when some parts of the service might only have been up and running for six months. That is why we landed on the period of up to five years as against the ten years that was in the original draft. That is the reasoning behind it.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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By not accepting the amendment and not recognising the value of the two and a half year interim review, the Minister of State is closing the door on potential learnings for the new parts of the Bill that may not be enacted or may not be fully in place. There may be very valuable learnings from parts of the Bill that have been enacted and the services that have been in place for two and a half years. Those learnings will not be shared with or available to the other parts that need to come more into place.

Mary Butler (Waterford, Fianna Fail)
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Again, I am satisfied. It is a massive piece of legislation, as the Deputy knows, with 220 different sections. A huge number of changes will be made to how we deliver mental health services and there will also be major change for those who deliver mental health services. It will be a staggered, incremental roll-out of the Bill, in terms of a review for a service that might only be up and running for six or nine months. By the time we get to the five years, I expect that all the services will have been well embedded for about two or three years at that stage and that is the reasoning behind it. Nonetheless, I appreciate where the Deputy is coming from.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Tá leasuithe Uimh. 10 go 24, go huile, as ord.

Mary Butler (Waterford, Fianna Fail)
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I move amendment No. 25:

In page 32, line 39, to delete “for recommendation” and substitute “for a recommendation”.

I will move amendments Nos. 25, 46, 62, 65, 97 to 101, inclusive, and 112, which have been grouped. These are all technical amendments required to correct various typographical errors in the Bill as amended.

Mary Butler (Waterford, Fianna Fail)
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I move amendment No. 26:

In page 33, line 36, after “Justice” to insert “, Home Affairs and Migration”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Tá leasuithe Uimh. 27 agus 28 as ord.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Amendments Nos. 29 and 30 are related and may be discussed together.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I move amendment No. 29:

In page 37, line 22, after “for” to insert “no more than”.

As the Chair said, amendments Nos. 29 and 30 are related. They concern one of the issues that has most frequently been brought to my attention since Committee Stage of the Bill, namely, the extension of the involuntary detention period from 21 days to, potentially, 42 days. The doubling of that timeframe has caused very real concern both for professionals and individuals who have previously been involuntarily detained, and for their advocates and the groups that support them. What has been very clearly said to me is that concern is based upon the increased risks associated with prolonged involuntary interventions. The doubling of that timeframe, and particularly its point of entry into this Bill, has shaken many groups to their core.

One group put it to me that the additional 21-day extension appears to proceed without necessitating a new capacity assessment. I can understand those concerns. I understand where it is they are coming from. They are coming from a place that wants the best possible treatment for people when and how they need it. However, the lack of what is perceived to be, and the Minister of State may clarify this, an absolute need for a new capacity assessment to be carried out within those 42 days is deeply troubling. If possible, I ask her to provide clarity on it. As I said, it is the topic that has been raised with me most often since Committee Stage. I would appreciate that clarity, as would the groups, the ex-patients and those who support them.

Marie Sherlock (Dublin Central, Labour)
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I support amendment No. 30. The rationale for this extension is far from clear. It is obviously a matter of great concern to those who understand the intricacies of involuntary detention or involuntary treatment, the timeframe and the process surrounding all that. Those who have approached us, and I think everybody in the Opposition, believe there are very significant grounds for inappropriate care of the individual without the necessary safeguards being in place.

The other important point is there have been calls to ensure we have an appropriate advocacy and complaints mechanism within the Bill to ensure those who are involuntarily detained or are being treated can get the proper representation. There are two elements to this: a lack of a new capacity assessment if the period is extended and a wholly inadequate or absent advocacy and complaints mechanism for those advocating on behalf of individuals. In that context, it is very difficult to support an extension from 21 to 42 days. We need to go back to the original 21 days, ensure it is kept at that and that the necessary safeguards are in place. We very much support the amendment.

Mary Butler (Waterford, Fianna Fail)
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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.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I fundamentally disagree with the last part where the Minister of State said it should be left to secondary legislation. This House has seen no secondary legislation. I agree that regulations have a place, but it is not here. It would not give the confidence or reassurance to a patient who is being involuntarily detained, their loved ones or their advocates that at some point a regulation may exist that would entitle them to a formal capacity assessment.

I am also very concerned that by not putting this into the Bill, we are not establishing from day one that every individual who may be involuntarily detained for more than 21 days is entitled to the exact same rights and entitlements in the exact same format regardless of where they are receiving their treatment. It would not be best practice to not have that in this Bill. I believe it is best practice to include it in primary legislation because everybody needs to be crystal clear as to what exactly their entitlements or their loved ones' entitlements are when we are talking about people who have been involuntarily admitted for a period exceeding 21 days.

We need to bear mind that 21 days is three weeks. If that it extended to 42, it becomes a month and a half. Why would anybody argue against somebody having a formal capacity assessment if the 21 days is to be extended? What is to be gained from it? In my opinion, the individual, their loved ones and advocates will lose. It needs to be standardised and needs to be a formal capacity assessment. It needs to ensure that the person who is receiving treatment is receiving it only for the length of time that they need it.

Liam Quaide (Cork East, Social Democrats)
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Along with my colleagues, I express my concern here about the late-stage doubling of the timeframe for involuntary treatment from 21 to 42 days in a Government amendment submitted on the deadline for Committee Stage amendments. At the moment we are discussing the necessity of a capacity assessment after 21 days. However, the 21 days itself is fundamentally problematic. The whole point of this Bill is to strengthen human rights safeguards and not to just have a doctor-knows-best approach to treating people in emergency care. The Government's Committee Stage amendment dramatically increases the risk of prolonged involuntary interventions. As my colleagues have said, it does not appear to mandate a new capacity assessment after the 21 days have elapsed.

I know the Minister of State said that capacity assessments happen regularly in psychiatric settings. However, from what she has said, it sounds like it is at the discretion of the psychiatrist. It is not mandated in law according to this provision. That is our concern. As we know, capacity is not fixed. It is fluid and it can change from day to day. Therefore, it is really important to have that safeguard implemented.

Mary Butler (Waterford, Fianna Fail)
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This is not a late-stage amendment. It was discussed on the very first day; I do not think Deputy Quaide was here. We had a discussion for four hours. That was part of an amendment that was taken I think about a month ago; it is not new today. That was discussed at that time. This is another amendment that has been brought forward in relation to the 42 days.

We cannot provide secondary legislation until primary legislation passes. It is just not possible.

I just want to go back to the point that a very small cohort of people, who lack capacity, will be involuntarily detained. That is a fact. It is the smallest number possible. However, this area has attracted a huge amount of concern. We all hear from people who have an enduring mental health condition who may spend a lot of time in an approved centre in the psychiatry department. It can be like a revolving door. They have capacity and come out. Then they might be back in within two or three weeks. They might present at the emergency department.

I want to be crystal clear that a consultant psychiatrist must be satisfied that a person continues to lack capacity before treatment can be administered at any point. That is really important. For that to happen, they have to assess whether a person lacks capacity or not. A person may lack the capacity today, could give consent today that their loved ones would be involved but by tomorrow they could change their consent. As Deputy Quaide has worked in mental health, he understands this.

Regarding the capacity piece, if the responsible consultant psychiatrist no longer believes that the person meets the criteria for involuntary admission, it means the person now has capacity within the 21 days or within the 42 days. It can happen within seven days or 14 days. That person must be discharged if they do not want to stay there voluntarily. There is no choice; it will be in the law when the Bill is passed. This could happen at any time during the 21 days. It could happen on day two, day four or day six and 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-----

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I thank the Minister of State.

Liam Quaide (Cork East, Social Democrats)
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I clarify my remarks about the late-stage amendments. What I was referring to was over the time span of this Bill, which is a number of years, it was a late-stage amendment that was very dramatically impactful. It really altered much of this Bill. It took people by surprise and did not give sufficient time for consultation with interest groups outside of psychiatry. It is obvious that this came from lobbying by interest groups for psychiatry, as is their right, and I can see where they are coming from. At the same time, service users are an equally important if not more important interest group because they will be receiving the treatment.

It came at a late stage just on the deadline for submissions on Committee Stage. I was not here for that; I was sick on that day. I am not sure there was any discussion of it actually because it came in under the radar based on my reading of the transcript from that day. I think it needs to be justified. What is the human rights rationale? What is the clinical rationale to go from 21 days to 42 days? We have had an expert group working on the Bill for years. We have had the Mental Health Commission working on it. That is quite an about-turn.

Mary Butler (Waterford, Fianna Fail)
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I-----

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I am sorry. The Minister of State has spoken twice.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I move amendment No 30:

In page 37, between lines 39 and 40, to insert the following: “(c) where a person is subject to involuntary treatment for a period exceeding 21 days, shall carry out a formal capacity assessment at regular intervals to determine whether the criteria for continued involuntary treatment still apply.”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Tá leasuithe Uimh. 31 agus 32 as ord.

Mary Butler (Waterford, Fianna Fail)
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I move amendment No. 33:

In page 41, lines 14 and 15, to delete “Public Expenditure, National Development Plan Delivery and Reform” and substitute “Public Expenditure, Infrastructure, Public Service Reform and Digitalisation”.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 34:

In page 47, line 13, to delete “a mental disorder” and substitute “mental health difficulties”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Tá leasú Uimh. 35 in ainm an Teachta Quaide as ord.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Tá leasuithe Uimh. 36, 40 go 45 go huile agus 48 gaolta agus pléimid le chéile iad.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 36:

In page 60, to delete line 21.

This amendment relates to the changes in respect of involuntary treatment. I have spoken already about my concerns about the doubling of the timeframe for that from 21 to 42 days at a very late stage of the legislative process. The expanded criteria for involuntary treatment is also very concerning. While detaining somebody on the basis that he or she is "likely to benefit" from treatment is problematic, it does at least allow for a continued respect for a person's capacity to consent to or refuse specific treatment, except in emergency circumstances where not having that treatment poses a risk to his or her well-being. However, extending that same "likely to benefit" criterion to justify involuntary treatment, particularly before a capacity assessment is even carried out, risks rendering nearly any involuntary intervention permissible once a person has been involuntarily detained. As such, a person subject to involuntary detention is likely to face a significantly broader and less accountable regime of involuntary treatment. Instead of the term "likely to benefit", there should be more specific language to ensure that the legislation reflects that involuntary treatment may only be administered in urgent circumstances where the delay or absence of such treatment would pose a serious risk to the health or safety of the person.

A key omission from the Bill which makes the amendments around involuntary treatment all the more concerning is the continued absence of a commitment to an independent complaints process or a statutory right to independent advocacy for those who experience involuntary detention and treatment.

I want to put on the record that to rule amendments on an independent complaints mechanism and independent advocacy out of order on the basis that they have a cost implication is not a defensible position. The Bill is meant to strengthen human rights' safeguards for people attending mental health services and the fact that this would come with some financial cost in terms of the resourcing involved is self evident.

Mary Butler (Waterford, Fianna Fail)
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I will speak to amendments Nos. 36, 40 to 45, inclusive, and amendment No. 48. The safeguards contained in the amended Bill in relation to consent to treatment are appropriate and balanced. I would like to reiterate that consent to treatment provisions in the Bill, in line with the Mental Health Act 2001, only apply where a person has been assessed as lacking capacity. Outside of very limited circumstances, a person who has capacity cannot be treated without his or her explicit consent. Furthermore, the Bill allows for consent to be granted by a substitute decision-maker where a person lacks capacity. Similarly, if a person has made a valid, relevant advance healthcare directive when he or she had capacity, the decisions in that directive must be respected when the person loses capacity. All people should be encouraged to make advance healthcare directives or to appoint designated healthcare representatives to make sure their will and preferences are respected when they lack capacity.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Ta leasuithe Uimh. 37 agus Uimh. 38 as ord.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 39:

In page 63, line 6, to delete “a mental disorder” and substitute “mental health difficulties”.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 40:

In page 63, to delete lines 10 and 11 and substitute the following:

“(iii) the life of the person, or that of another person, is at risk, or the health of the person, or that of another person, is at risk of immediate and serious harm,”

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 41:

In page 63, to delete lines 13 to 23

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 42:

In page 63, line 34, to delete “or further treatment period”.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 43:

In page 64, line 1, to delete “or further treatment period”.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 44:

In page 64, lines 4 and 5, to delete “or further treatment period”

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 45:

In page 64, line 7, to delete “or any further treatment period”

Mary Butler (Waterford, Fianna Fail)
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I move amendment No: 46:

In page 64, line 18, after “proposed,” to insert “or”.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I move amendment No. 47:

In page 64, line 21, after “made” to insert “within 5 days”

This amendment relates to a potentially prolonged involuntary treatment period without timely access to decision-making supports. This amendment seeks to put in a definitive timeframe for when an application to the Circuit Court to put decision-making supports in place for somebody who lacks capacity or who is waiting on a capacity assessment can be done. It can be done at any time for involuntary treatment but the five-day window seeks to do just that and to ensure that people get the proper decision-making supports in a timely way and that everybody is fully aware of what the timeframe will look like. If somebody is involuntarily detained or admitted, his or her first 21 days is well known, with the potential to be extended to 42 days under this Bill, but there is no definitive timeline around an application to the Circuit Court for decision-making supports and that is what this amendment seeks to do. At the very least everybody should be fully aware of what a timeline for involuntary admittance is going to look like. Should the decision-making capacity of an individual be under question, everybody should be fully aware of the timeframe for assessments to take place.

Mary Butler (Waterford, Fianna Fail)
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Again, this amendment relates to people who are involuntarily detained who do not have capacity. In many cases a person can regain some level of decision-making capacity within two to three weeks of admission. If an application is made on behalf of all these people, the vast majority of the applications will not be required as they will have regained capacity a short number of days after the making of the application. Requiring that applications to the Circuit Court be made within five days of a person being assessed as lacking capacity will be incredibly resource-intensive both for mental health services and for the Courts Service.

It is appropriate to leave the decision on when to apply to court within the period after admission to the person’s responsible consultant psychiatrist and multidisciplinary team. It is important to stress that any time a person is involuntarily detained in any approved centre or department of psychiatry, the Mental Health Commission is informed.

That is another safeguard to be aware of. People who are involuntarily detained will also be entitled to a tribunal. It is important to allow mental healthcare professionals to prioritise applications in respect of people they do not expect to regain capacity rather than taking up court time making applications in respect of people who are expected to regain capacity within a short period of time after admission.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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With the greatest respect to all those health professionals and to the Minister of State, nobody knows what is going to happen in the future. There may be a presumption of two or three weeks but that presumption may turn out to be false. There may be a presumption of a week that turns out to be false. None of us has the ability to see into the future. I agree with what the Minister of State said earlier on. The number of people who are involuntarily admitted is very low and the number of those who lack capacity is even lower. However, it is my firmly held belief that anybody who is a member of such a minority has a level of vulnerability that is without compare in the general community. That is why we have proposed this definitive timeline as to when an application should be made to the Circuit Court. These people are one of the most vulnerable sections of our community, if not the most vulnerable. They deserve whatever additional protection we can provide through this Bill, specifically with regard to clear timelines.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 48:

In page 64, line 31, to delete “and any further treatment period”.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 49:

In page 64, line 39, to delete “a mental disorder” and substitute “mental health difficulties”.

Mary Butler (Waterford, Fianna Fail)
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I move amendment No. 50:

In page 67, line 7, after “Justice” to insert “, Home Affairs and Migration”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Tá baint ag leasuithe Uimh. 51 agus 52 le chéile agus pléifear le chéile iad.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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I move amendment No. 51:

In page 68, between lines 6 and 7, to insert the following: “(4) The use of chemical restraint shall be notified to the Mental Health Commission within 24 hours and made available for review upon request by the individual or their advocate.”.

This amendment relates directly to the use of chemical restraint on those subject to involuntary admission and treatment. This is an area within the Bill that we absolutely need to strengthen. Previous patients, their loved ones and advocates have strongly asked for provisions on chemical restraint. Earlier drafts included a comprehensive section on chemical restraint but all references to and protections against the use of chemical restraint were subsequently removed. I believe this is partly down to the Bill having been introduced four years ago with pre-legislative scrutiny having been done almost three years ago. The sheer number of amendments we see here today is the result of that passage of time. This omission is really troubling given that this practice is not covered under existing regulations or codes of practice. Why were such significant changes made to this Bill in respect of the use of chemical restraints? Why was a requirement to notify the Mental Health Commission of the use of chemical restraints not included as a Government amendment?

Mary Butler (Waterford, Fianna Fail)
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I thank Deputy Clarke. Amendment No. 51 does not provide for a definition of "chemical restraint" or "advocate", two terms which have not been used elsewhere in the Bill. Amendment No. 52, proposed by Deputy Quaide, exactly matches the text of the published general scheme and includes terms that have not been used in the Bill itself. The Department has not included provisions on the use of chemical restraint in the Bill as initiated or as amended. While a reference was included in the published general scheme of the Bill, there was not a consensus on what constituted chemical or pharmacological restraint, the extent to which it is used in Ireland or a definition of the practice. At a practical level, when a doctor administers medication to a person, it should always be for the purposes of improving the condition of that person. Everyone will agree that the issue of chemical restraint is complicated. I do not believe the amendments proposed here today adequately address the complexities of the issue. It may be more appropriate for a future review of this enactment to consider the matter in greater detail. I will refer the question to the Mental Health Commission for its opinion.

Liam Quaide (Cork East, Social Democrats)
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I echo Deputy Clarke's concerns about this. The Bill provides no specific safeguards or statutory provisions governing the use of chemical restraint on persons who are subject to involuntary detention and treatment. It does not even really acknowledge the reality of chemical restraint. Chemical restraint happens quite often. It involves administering powerful sedatives to people who are in extreme states of mind. While the intentions may be good, there is a need for very clear safeguards. In the context of the human rights impact of the practice, it is worth bearing in mind that, where people with intellectual disabilities are admitted to a psychiatric ward, their behaviours and mental state can deteriorate because such wards are often not suitable for their needs. They can then be subjected to disproportionate rates of chemical restraint when compared to other groups of service users. That is something we really need to bear in mind when devising legislation on mental health.

The heads of Bill included a comprehensive section on chemical restraint but all references to and protections against the use of chemical restraint were subsequently removed. It is worth noting that the Mental Health Commission and Mental Health Reform issued a very clear call as to the need to closely monitor and regulate the use of chemical restraint. The omission of this section is very troubling given that, as Deputy Clarke has said, it is not covered under existing codes of practice and is therefore not properly reviewed by the Mental Health Commission. It is really important that we reintroduce that section to the Bill.

Mary Butler (Waterford, Fianna Fail)
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I will be brief. As I have said, chemical restraint is a complicated matter. I do not believe the amendments proposed here today adequately address the complexities of the issue. The Mental Health Commission can determine a code of practice in respect of any restrictive practice. It is positive that the Mental Health Commission noted in its latest publication that there has been an overall reduction in episodes of restrictive practices. That is very welcome. It is what we want to see. I am not satisfied that the proposed amendments deal with the issue. I will refer the matter to the Mental Health Commission with a view to determining a code of best practice on chemical restraint.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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After such a length of time since the Bill was introduced, that is simply not good enough. Chemical restraint must be governed with the same clear rules and subject to the same level of oversight as any other restrictive practice outlined in this Bill. I do not know why the decision was made to take out the reference to chemical restraint but that was the Minister of State's decision and this is where we stand today. Any restrictive practice causes concern for patients and their advocates and rightly so. However, it was the Minister of State who referred to other regulations, secondary legislation and whatever else was mentioned earlier on. That does not give her a plausible platform to dispute the term "advocate", especially given that Government has said it will be bringing in safeguarding legislation which, as we heard in the health committee today, will deal with advocates and make strong asks in respect of the term.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 52:

In page 69, between lines 6 and 7, to insert the following:

“Chemical restraint

57. (1) In this section, “chemical restraint” means the use of medication to control or modify a person’s behaviour when no medically identified condition is being treated, or where the treatment is not necessary for the condition or the intended effect of the drug is to sedate the person for convenience or disciplinary purposes.

(2) A person shall not apply chemical means of bodily restraint to a person unless such restraint is determined, in accordance with the rules made under subsection (3), to prevent the person from injuring himself or herself or others and unless the chemical restraint complies with such rules.

(3) The Commission shall make rules providing for the application of chemical restraint on a person.

(4) Chemical restraint should be used only in exceptional circumstances, where there is no safe alternative and for as limited a time as possible.

(5) Each approved inpatient facility will keep a register of the use of chemical restraint, and each use of chemical restraint shall be recorded in the register, and on the person’s clinical file, in addition to any other information required by the Commission, as set out in the Commission’s rules made under subsection (3).

(6) In this section, a “person” includes involuntary persons, intermediate persons and persons detained in the Central Mental Hospital or in a designated centre (within the meaning of the Criminal Law (Insanity) Act 2006) but does not include voluntary persons.

(7) A person who contravenes this section or a rule made under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €5,000.”.

Mary Butler (Waterford, Fianna Fail)
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I move amendment No. 53:

In page 70, line 11, after “Justice” to insert “, Home Affairs and Migration”.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Amendments Nos. 54 to 59, inclusive, have been declared out of order.

Liam Quaide (Cork East, Social Democrats)
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I move amendment No. 60:

In page 75, between lines 20 and 21, to insert the following: “(4) Where a child is involuntarily admitted to a registered adult acute mental health centre pursuant to an involuntary admission order under section 66 that this period shall be no longer than 72 hours.”.

The significant decrease in the number of admissions of children to adult psychiatric wards is very welcome. However, the absence of legislative safeguards in the Bill leaves children vulnerable to this practice becoming more widespread again in the future. Notably, concluding observations from the UN Committee on the Rights of the Child expressed serious concern about Ireland's practice of admitting children to adult psychiatric units. The Bill should explicitly prohibit the admission of children to adult units. Allowing the practice to continue is essentially legislating for the continued under-resourcing of CAMHS inpatient units by Government. As a compromise, we need at the very least a maximum period of 72 hours for such admissions. That would allow for emergency situations at weekends and so on.

Mary Butler (Waterford, Fianna Fail)
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I spoke at some length on Committee Stage about child admissions to adult units and do not propose to speak about the matter in great detail again but I would like to speak to the amendment. We do not need to put a time limit in primary legislation on how long a child can be admitted to an adult unit. The small number of child admissions that currently take place are done on an emergency basis and for as short a period as possible. I cannot accept a restriction on the length of an admission because there may be cases when it is not safe or in the child's best interest to move him or her within 72 hours after admission. We should work towards the elimination of the practice of child admissions to adult units at the level of service and policy, rather than through legislation. So far this year, two young people who gave consent and whose families consented were admitted to an adult ward.

On the Deputy's comment on underfunding of CAMHS, 51 CAMHS beds are fully staffed today and 15 of them are vacant.

Marie Sherlock (Dublin Central, Labour)
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The fundamental reality is there is a misalignment regarding the ages at which children age out of paediatric mental health services and physical health services. It is 16 for mental health services and 18 for physical health accommodation. We need to put in place safeguards for children who are admitted to an adult psychiatric facility. That is why we propose in amendment No. 63 that the District Court has to play a critical role. We have spent some time talking about this and are disappointed the Minister of State will not support either amendment No. 60 or amendment No. 63, which is an important compromise regarding the misalignment and the unacceptable situation whereby children are treated in an adult centre. We very much support amendment No. 60 and I note amendment No. 63, which we will not have time to get to.

The time for this debate has now expired. Do Members have any short comments?

Mark Ward (Dublin Mid West, Sinn Fein)
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We have had this conversation many times about admitting children into adult psychiatric facilities. The Government had four years to get this right and it has failed. It is draconian. The practice is wrong. Every human rights organisation has said it is absolutely wrong. The Government also had four years to get the regulation of CAMHS in place. It is not in this Bill. It is literally not good enough. We will be voting on a Bill that does not regulate CAMHS. There were numerous reports, including the Maskey report and the Mental Health Commission report, which outlined all the problems there were in CAMHS. The number one recommendation in those reports was that CAMHS needed to be regulated and the Government failed to do so. There is not one mention of dual diagnosis in the Bill either.

Mary Butler (Waterford, Fianna Fail)
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The Deputy was not speaking to the amendment. May I conclude?

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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No. It is now 6.29 p.m. and I am obliged to put the question.

The time permitted for this debate having expired, I am required to put the following question, in accordance with an order of the Dáil of 8 July: "That the amendments set down by the Minister for Health and not disposed of are hereby made to the Bill; Fourth Stage is hereby completed; and the Bill is hereby passed."