Catherine Ardagh (Fianna Fail) | Oireachtas source

It is my pleasure to speak on the Mental Health (Amendment) Bill 2017, brought forward by Fianna Fáil before Seanad Éireann. A significant contribution to the formulation of the Bill came from Mental Health Reform, representatives of which are in the Gallery today. I thank them for the support they have given to Fianna Fáil and particularly Deputy James Browne in spearheading the Bill and bringing it to this Stage.

In agreeing to facilitate a minority Government, Fianna Fáil inserted in the confidence and supply agreement a condition that A Vision for Change would be fully implemented within the lifetime of the Government. A Vision for Change was developed under the then Fianna Fáil Government as a strategy document that sets out the direction for mental health services in Ireland. Since 2001, our understanding of mental illness and the rights of people suffering mental illness have advanced. In particular, we have had the UN Convention on the Rights of Persons with Disabilities, to which Ireland is a signatory. We need to change how we look at Acts of the Oireachtas that affect peoples' rights. They should be viewed as living Acts that can be readily amended and updated to reflect how we live our lives physically and emotionally. I echo my disappointment about yesterday's budget and measures targeted to mental health funding. I am disappointed the full amount of €35 million was not secured and funding was hidden in other measures. I understand the total comes to less than €15 million.

This Bill seeks to implement some of the recommendations contained in the report of the expert group on the review of the Mental Health Act 2001. The Bill was passed by the Dáil in July this year and it would deliver immediate improvements and legislative protection for adults and children accessing acute mental health services. It would also contribute in some part to the Government's fulfilment of international human rights law, including the European Convention on Human Rights and the Convention on the Rights of Persons with Disabilities. The Mental Health (Amendment) Bill contains certain significant changes that strengthen the rights of people in hospital for mental health care. The Bill also supports the rights of inpatients to make decisions about their own treatment by linking the 2001 Act with recent law that affirms that everybody should be presumed to have capacity to make decisions. This includes providing people with the supports they need to make these decisions.

In total, the expert group made 165 recommendations relating to the updating of the Mental Health Act. This Bill does not address all 165 recommendations but it goes some way to addressing some of them. It is a first stepping stone to ensuring those with mental health difficulties have more autonomy to make decisions on their care when they are getting treatment. To date, only one of the 165 recommendations has been implemented by the Government and the pace of reforming our mental health legislation and services is far too slow. The Bill we have put forth seeks to address some of these issues.

The Bill will deliver immediate improvements in legislative protection for adults and children accessing acute mental health services. It will also contribute in some part to the Government's fulfilment of international human rights law, including the European Convention on Human Rights and the Convention on the Rights of Persons with Disabilities. One of the key changes put forward in the Bill is to introduce a definition of "voluntary patient", including only individuals with decision making capacity and who have consented to admission. The Bill also seeks to ensure that people are given the right to the highest attainable standard of mental health and the right to receive the least restrictive care possible. It seeks to enhance awareness of the special needs of children when interacting with the mental health services, proposing that each child has the right to be heard in decisions made regarding their care in the mental health service.It also affirms that involuntary patients could not be given treatment without their consent, except in certain circumstances. The detailed proposals we have made would help in the process of reforming mental health legislation and, in effect, mental health services. It is important that we move quickly to implement the recommendations made by the expert group. I will not go through all of the recommendations made. I will focus on some of them and my colleague, Senator Paul Daly, might reflect on others when he is seconding the proposal.

Section 2(1) of the Bill introduces a definition of "voluntary patient" to include only those who have the capacity to make their own decisions, with support if required, and who give their consent to be admitted to hospital. People who do not have the capacity to consent to admission and who do not object to it are considered to be voluntary patients under the law, even though they are not able to consent to admission. This means that they do not have an external review of their status or receive the oversight protection provided for involuntary patients. Under the Mental Health Act 2001, a person is considered to be a voluntary patient only if he or she is not the subject of an admission or renewal order that would make him or her an involuntary patient. In other words, a person is a voluntary patient only by virtue of the fact that he or she is not an involuntary patient. The 2001 Act does not refer to capacity or consent on the admission of an individual as a voluntary patient. Critically, it does not distinguish between individuals who have the capacity to consent to their admission and those who do not.

The Bill also addresses the question of putting the person first. Section 3(2) would eliminate the principle of "best interests" for adults. It would keep the principle of "best interests" for children under the 2001 Act. The Bill would replace the "best interests" principle with the guidance principles under the Assisted Decision-Making (Capacity) Act 2015 which relate, for example, to respecting the will and preferences of a person. The Bill also introduces other human rights principles such as the right to the highest attainable standard of mental health and the right to the least restrictive care. The Government has already signed up to these human rights standards. The Bill would confer a right to "the highest attainable standard of mental health consistent with least restrictive care". The expert group has identified that this should be in the context of giving due respect to "the person's own understanding of his or her mental health". The existing principle of "best interests" under the 2001 Act has been interpreted very paternalistically in the courts and sustained a culture where, at all times, the views of doctors have been given priority over those of patients who are the service users.

This section of the Bill also retains some of the principles already set out in the 2001 Act, including the right of a person to autonomy, privacy and bodily integrity. The shift from the term "best interests" would empower people to be decision-makers over their own mental health, which is the core value of the Bill. Its ultimate aim is to give people more autonomy when they receiving treatment for their mental health issues. This change in perspective values the expertise and knowledge of the individuals in understanding their own mental health difficulties and recognising what is best for them in their own care and recovery.

I would like to address other aspects of the Bill such as the provisions relating to children and young people under the age of 18 years. While the Bill would eliminate the "best interests" principle for adults, as I have explained, it would retain it for children and young people under the age of 18 years. Section 4 is in line with the expert group's recommendation which recognises that where there is an intervention on behalf of a child, his or her best interests must be the primary consideration. It is imperative that the term "best interests" be defined in a way that is informed by the views of the child, bearing in mind that these views should be given weight in accordance with his or her age, evolving capacity and maturity, with due regard to his or her will and preferences. This is important because it is still appropriate for decisions on the mental health care of children and adolescents to be made with their best interests in mind. In keeping with international human rights law, the "best interests" principle should take account of the views of the child or adolescent, as well as his or her will and preferences. The "best interests" principle is in keeping with international human rights standards. The UN Convention on the Rights of the Child provides that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".

One of the biggest issues covered in the Bill is consent to treatment. Section 5(1) would amends the 2001 Act to include both voluntary and involuntary patients in the existing provisions relating to the definition of "consent to treatment". The consent to treatment provisions set out in the 2001 Act do not specify that they apply equally to voluntary and involuntary patients. This section of the Bill would expand the definition of "consent to treatment" and explicitly provide that all voluntary and involuntary patients would have to consent to treatment delivered in acute mental health services. Section 5(1)(a) would amends the 2001 Act to include the definition of "decision-making capacity" set out in the Assisted Decision-Making (Capacity) Act 2015, thereby bringing the 2001 Act into line with the 2015 Act in this respect. Section 5(1)(b) would amend the 2001 Act to ensure both voluntary and involuntary patients would be given adequate information in a form of language that he or she could understand on the nature, purpose and likely effect of the proposed treatment. This provision currently applies to involuntary patients only.

This section of the Bill also affirms that voluntary patients could not ultimately be given treatment without their consent. It also affirms that involuntary patients could not be given treatment without their consent in certain circumstances. More specifically, it would amend the 2001 Act by narrowing the circumstances in which treatment could be administered without the consent of the involuntary patient. It provides that treatment could only be given without consent as a very last resort. in keeping with international human rights law. At a minimum, human rights norms require that the law must specify that compulsory treatment can only be administered as a very last resort and, ultimately, where necessary.

As I said, the Bill does not address all of the recommendations made in the expert group's report. There are certain limitations on the Bill which addresses some of the issues only. As I said, it would be a stepping stone and I hope the Government side of the House will support it. I look forward to hearing what other Members have to add to the debate.