Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

Cuirim fáilte roimh an Aire Stáit. I share the frustration of Senator Norris. In fairness to him, we have had a number of Bills through the House in the past week and a half with hundreds of amendments coming at the last minute. As legislators, we can see amendments replacing sections and the discussion is on the new sections. It can be very confusing, especially as these numbered amendments only came to us at 11.59 p.m. last night. None of us picked up our e-mails from then until this morning, so it has been quite a challenge to try to get through the amendments.

I want to be specific to issues that have been raised, particularly with regard to advance health care directives. My understanding is these have been affected by the grouping of amendments we are speaking to. They relate to changes to sections 59 and 60 of the Bill as passed by the Dáil. There are concerns being raised with me around advanced health care directives and the provisions are causing a great deal of concern among mental health service users. They feel their human rights will not be respected on an equal basis with others if the treatment choices of those detained under mental health legislation are excluded from the Bill.

I note that the Minister of State is seeking to amend the mental health legislation around the issue of electroconvulsive therapy, ECT, and other harmful treatments, where people are found to be unable to consent, which is to be welcomed. It will only occur if there is a legally binding advance health care directive allowing patients to consent or refuse treatment in advance. It is felt that the changes suggested may affect the issue around advance health care directives. I note that Dr. Fiona Morrissey from the National University of Ireland, Galway, has raised the issue and she states:

The impending legislative provisions discriminate against anyone who may experience mental distress. Given that one in four of us experiences some form of mental distress during our lifetime, any one of us could find ourselves in a position where we become emotionally overwhelmed due to some form of life event and end up in a crisis situation where we are excluded from making decisions in relation to our treatment under this legislation. The proposed legislation specifically excludes the use of legally binding advance health care directives for the treatment choices of those who may be subject to involuntary detention under the Mental Health Act 2001.

Dr. Morrissey believes this is clearly discriminatory under the UN Convention on the Rights of Persons with Disabilities, which the Government is planning to ratify in the near future. The use of differential standards in the legislation reinforces the notion that the preferences of individuals who may experience mental distress are not respected on an equal basis with others and reinforces stigma. In its general comment on article 12, the Committee on the Rights of Persons with Disabilities has stated that state parties have an obligation to require all health and medical professionals, including psychiatric professionals, to obtain the free and informed consent of persons with disabilities prior to any treatment. She also argues that advance health care directives are legally binding during involuntary detention in a number of other jurisdictions, including Germany, and a number of US states and Canadian provinces. Advocacy organisations have urged that laws on advance directives for mental health treatment decisions should operate in exactly the same way as other directives, subject only to legitimate emergency situations, such as when there is an imminent threat to life or others.

The question is about seeking clarification. As Senator Norris has stated, with the grouping and gamut of amendments, we need specific discussion of this issue of advance health care directives. People are concerned that these are being specifically excluded. Will the Minister of State clarify this? Will they be omitted and, if so, what is the rationale for leaving them out in light of this international opinion?