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

I said, on Committee Stage, that I have no objection in principle. It is important to say this. The capacity legislation covers everyone, including people who have mental health difficulties and advance health care directives. The legislation goes further because most countries do not include people with mental health difficulties in capacity legislation. There are two small exceptions which are very understandable. One is when a person is subject to a conditional discharge from the Central Mental Hospital. I was involved in the legislation when it went through under the previous Government. It allows people limited conditional discharge from the Central Mental Hospital, which is right and proper. I have always had an interest in mental health, and the fine detail and more severe end is sometimes lost in the debate. However, if the person on conditional discharge decided through an advance health care directive that he or she did not want to continue with their medication regime while outside of the institution, clearly that conditional discharge would be revoked and they would be brought back in. It is all dependent on the person complying with their medication regime. They could be hearing voices, and I know people who hear voices and I have a good relationship with some such people. I sometimes think those voices are probably more informed than the rest of us. However, I understand, as do they, that there are times when these people must have their needs protected more than anything else.

The other exception is for people who are detained involuntarily. Everyone is covered under this legislation regarding advance health care directives, whether it involves mental health, acquired brain injury, disability and so on. There are just those two small exceptions. The exception of the person who is detained involuntarily will be dealt with in the Mental Health Act. I have had a discussion on this with people in this area whom I trust and who would not be conservative in their thinking. We cannot knowingly put a section into this legislation that contradicts section 4 of the Mental Health Act. However, this will be dealt with in the new Mental Health Bill. When I consulted Mr. Brendan Kenny, whom I trust very much on this matter, he agreed that advance health care directives under the Mental Health Act must be legally binding, but in the event of imminent, serious harm or the possibility of such, the consultant would have to overrule that advance health care directive. However, he or she would have to explain the decision before a tribunal or before the courts. Mr. Kenny explained that this is done all the time.

It is not an impossible task but we cannot do it in this legislation. If this Bill requires amending as a result of the new Mental Health Bill, which will involve 165 amendments, that will not be a problem and it will happen. This is not a principled exclusion. It is merely a practical method of doing it. I do not very often slap myself on the back, but if anyone thinks for one minute that I want to exclude people just because they have a mental health difficulty, they really do not know me. This is something we are going to do but we cannot do it in this legislation. In the event that we need to amend this legislation as a result of the new Mental Health Bill, that will happen. I hope that gives some degree of comfort to people. I understand that people want it to be included but it is possible to amend the Bill in the event that the Mental Health Bill contradicts it. There is a question about whether there should be mental health legislation at all, but that is a different story.