Joan Freeman (Independent) | Oireachtas source

I would like to speak briefly in support of Deputy Browne's Mental Health (Amendment) Bill 2017. It is a very worthwhile item of legislative change and I fully support the shortcomings it seeks to address.

The legislation proposes five key amendments to the Mental Health Act 2001, which serve to strengthen and protect the rights of people embarking on mental health care. I would like to speak briefly on each amendment. First, the legislation proposes to amend section 2 of the 2001 Act and will provide a definition of voluntary patient as a person who has a capacity to be admitted. The existing structure is where people with no capacity and who do not object to being admitted are considered to consent to admission. The existing framework whereby a person who has no capacity is nonetheless deemed to consent to treatment is quite wrong, both in law but also logically wrong. This is an important amendment that respects the capacity of persons to have a proper say in their own treatment. I note that mental health reform representatives are in the Gallery today. They also, as a group, recommended this amendment in the past and are fully supportive of this change.

The second amendment is to section 4 of 2001 Act where Deputy Browne proposes to insert four guiding best interest principles in regard to the treatment administered to people treated under the Act. I would like to speak about each amendment in turn. The second paragraph in section 4 proposes that the existing standards of autonomy, privacy and bodily integrity in treatment should be beyond dispute.The second best interest principle is that capacity is presumed until proven otherwise, in accordance with the provisions of the Act.

The third amendment provides that a person shall not be considered to be unable to make a decision until all practical steps have been taken to help him or her to do so. Section 4 (5) requires that unwise decisions should not be evidence of the absence of capacity. Let us just think about that. Many of us make unwise decisions but we are not deemed to have the absence of capacity. Overall, the inclusion of these principles represents a movement away from the outdated and somewhat paternalistic approach to treatment in the 2001 Act. Section 25 of the principal Act, which relates to the involuntary admission of children by the District Court, is also amended and supplemented to contain stand-alone best interest provisions in respect of children who are subject to these kinds of unique orders. I fully support this section in particular as it serves to put into primary legislation best interest principles on assessments, admissions and care of children where these orders are often made. These orders are often made in particularly stressful and tense situations where very basic considerations such as bodily integrity and autonomy can get lost.

It is important that Section 25 spells out the rights of the child that need to be considered by the courts when this kind of order is made. I also note that the retention of the best interest provisions proposed here by Deputy Browne would reflect and protect international human rights law and the necessity for children to have a say in their own treatment. The next amendment proposed by Deputy Browne is to section 56 of the Act. I will give the Deputy a head-up here where the proposed legislation states he is substituting the following for subsection (1). Section 56 appears to be made up of two subsections. This is a small technicality and not significant but I thought it worth mentioning. The overall intention of Section 56 is to update the meaning of consent by reference to the Assisted Decision-Making (Capacity) Act 2015 and specifically to Section 3 of that Act. This is an excellent amendment in that it proposes to update the interpretation of a patient's consent in the 2001 Act in line with the 2015 Act. This is far more descriptive and widens the understanding of consent by highlighting a holistic approach to capacity, including a person's ability to understand. Section 57 also affirms that involuntary patients cannot be given treatment without their consent except in certain circumstances. It is not currently clear under the Act that consent to treatment is required from both voluntary and involuntary patients.

I again congratulate Deputy Browne once again on this excellent legislation. I despair, however, as to how these modern treatment principles can be appropriately implemented in an inadequately staffed health service. We also have to swallow the fact made public today that only €15 million of funding has been applied to the mental health budget for 2018. I will not allow this depressing thought to take away from the excellent and comprehensive legislation that Deputy Browne has put before the House.