Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

The Government decided on 8 December that responsibility for the decision support service would be moved from the Courts Service to the Mental Health Commission. This is in response to concerns expressed at the proposal to locate the decision support service in the Courts Service. The original decision to locate the Office of Public Guardian, as it was then called, in the Courts Service was based on the view that the Office of Wards of Court could form the kernel of the staff of the new body. However, stakeholders have pointed to the desirability of moving away from the Office of Wards of Court to avoid the false impression that wardship could be perpetuated by another name. Instead, as I have made clear, wardship will be abolished for adults once existing wards have been discharged or migrated to the new support options.

The proposal to locate the decision support service in the Mental Health Commission will create a clear boundary between the old wardship system and the new options available for persons with capacity difficulties. The decision to choose the Mental Health Commission as the location for the decision support service is because the commission has expertise on key functions that will be undertaken by the new body. It has experience of providing information and of preparing codes of practice.It has experience of setting standards, performing regulatory functions and undertaking investigations. It approaches its current functions from a human rights-based perspective, which is what will be important for the new body. It has the necessary skills mix that is needed by the new body.

I am conscious that the Mental Health Commission's current service users may be a different target group from the much broader client base of the decision support service. Some rebranding may be needed to make this distinction clear. This will need to be worked out with the Mental Health Commission over the next months. While logistics and timing will need to be worked out with the Mental Health Commission, this is a very good solution which draws on the experience of a very skilled organisation, yet allows a new architecture to be established.

The proposed amendments are consequential on the Government's decision to move the decision support service to the Mental Health Commission. All references to the board of the Courts Service are proposed to be replaced by references to the Mental Health Commission. Many references to the Minister for Justice and Equality are proposed to be replaced by references to the Minister for Health as the Mental Health Commission comes under his remit.

Amendment No. 1 proposes to amend the provisions concerning commencement of the Bill. It proposes that the Minister for Health be consulted on the commencement of the Bill in view of his responsibility for the Mental Health Commission. As the decision to move the decision support service to the Mental Health Commission was only taken on 8 December, the Mental Health Commission will need time to prepare for this new task. As a result, I envisage that the legislation will not be commenced immediately. It is anticipated that the Bill, if enacted, will be commenced in the second half of 2016 to coincide with the finalisation of preparations to ratify the UN Convention on the Rights of Persons with Disabilities. I never thought we would get to that day.

Amendment No. 2 proposes to delete the reference to the board of the Courts Service as it will now not be responsible for the decision support service. Similarly, the reference in amendment No. 3 to the Courts Service Act of 1998 is proposed for deletion as no change is now envisaged to that Act.

Amendments Nos. 73 to 75, inclusive, 77, 81, 82, 84, 87 and 89 replace the references to the Courts Service with the Mental Health Commission.

Amendment No. 78 proposes that the Minister for Health rather than the Minister for Justice and Equality will determine the terms and conditions of the director of the decision support service. This is because the Minister for Health has responsibility for the Mental Health Commission and the resources allocated to it.

Amendment No. 79 proposes that the director will be a member of staff of the Mental Health Commission rather than of the Courts Service, reflecting the transfer of responsibility to the Mental Health Commission. Similarly, amendment No. 80 proposes that the staff of the decision support service will be staff of the Mental Health Commission. It also proposes that the provisions of Part 3 of the Mental Health Act 2001, which deal with the terms and conditions of the staff of the Mental Health Commission, will apply also to the staff of the decision support service.

Amendment No. 88 proposes that any adviser engaged by the director will be subject to the prior agreement of the Minister for Health in view of his responsibility for the Mental Health Commission and the resources available to it.

Amendment No. 90 proposes that the Minister for Health would also have to give approval to the remuneration and allowances for special visitors and general visitors.

Amendments 91, 92 94 to 96, inclusive, 99, 100 and 103 propose to replace all references to the board of the Courts Service with the Mental Health Commission or the commission. It is proposed that the Mental Health Commission will have the same role as was foreseen for the board of the Courts Service to receive a copy of the annual report prepared by the director on the activities of the decision support service. It will also receive a copy of the report to be prepared by the director within two years of the commencement of Part 9 on the effectiveness of the functions specified for the director under this legislation. In addition, it will receive a copy of the report the director must produce after five years reviewing the performance of his or her office and on the functions set out under the Bill.

Amendments 93, 97, 98, 101, 102 and 104 propose that the commission will be obliged to forward these reports to the Minister for Health in view of his responsibility for the Mental Health Commission. Amendment No. 105 proposes that the Minister for Health rather than the Minister for Justice and Equality will be required to send a copy of such reports to the Oireachtas. No change is proposed to the provision requiring the reports to be laid before the Houses of the Oireachtas. The proposed transfer of responsibility for the decision support service from the Courts Service to the Mental Health Commission will require a series of amendments to section 86 which relates to codes of practice.

Amendment No. 106 proposes to delete paragraph (b) of subsection (3) as it is no longer necessary for the Mental Health Commission to be consulted on codes of practice since the decision support service will be located in the Mental Health Commission. This means that the Mental Health Commission will now be centrally involved in the preparation of these codes of practice.

Amendment No. 107 proposes that where the decision support service produces codes of practice on non-health care matters, these should be done in consultation with the Minister for Health in view of his responsibility for the Mental Health Commission. The Mental Health Commission would be consulted instead of the board of the Courts Service. The Minister for Justice and Equality's consent would continue to be required in view of her policy responsibility for the Bill.

Amendment No. 108 proposes that where the decision support service produces codes of practice on health care matters, these would be done with the consent of the Minister for Health in view of his policy responsibility for health care matters and for the Mental Health Commission. It is proposed that the Minister for Justice and Equality would be consulted in view of her policy responsibility for the legislation. The Mental Health Commission would be consulted instead of the board of the Courts Service.

Amendments Nos. 109 and 111 replace the references to the board of the Courts Service with the Mental Health Commission.

Amendment No. 110 proposes to delete section 87 of the Bill as the Courts Service will not have responsibility for managing the functions assigned to the director of the decision support service.

Amendment No. 113 proposes that the review of the functioning of the Bill when enacted would be undertaken in consultation with the Minister for Health in view of his responsibility for the Mental Health Commission. As the Commission will now have responsibility for the decision support service, the views of the Minister for Health will be crucial in determining how the Bill, when enacted, functions in practice.