Jim Daly (Cork South West, Fine Gael) | Oireachtas source

As Senator Colette Kelleher said, I am in this Chamber very often dealing with this issue. I find it engaging, always learn something new and leave more informed than when I entered. It is a pleasure to be back again.

I again thank Deputy James Browne for introducing the Mental Health (Amendment) Bill 2017 which has progressed through all Stages in the Dail. I recognise the importance that he and others in both Houses attach to the need to introduce these changes to mental health legislation. It is timely that we have the opportunity during World Mental Health Week to continue our national conversation about mental health, with a particular focus on this occasion on improving the standards set out in legislation.

From a personal point of view and the point of view of the Government, I again stress the significance we place on providing and improving services for all those in society who suffer from a mental illness. Thankfully, the majority of people who live with a mental illness will never come within the provisions of mental health legislation, with such individuals recovering on their own terms with the support of family, friends, the community and mental health services, where required. That is the point Senator Colette Kelleher was making. For those who require involuntary inpatient care and treatment, there is an onus on the Government, the Oireachtas and society to put in place appropriate legislation which will provide the safeguards necessary to ensure involuntary admission and treatment will take place in a structured manner with the individual's needs at their core.

In speaking about the Mental Health (Amendment) Bill 2017 I should also say legislative change is only one part of the important reform process that is ongoing in the mental health sector. In the national policy A Vision for Change - Ireland's Health Service Senators will be aware that a newly established oversight group is in place to oversee the next stages of the review of this seminal document. It will also be something at which the newly established Joint Committee on the Future of Mental Health Care will be looking in the near future.

Senators will be aware of the announcement made yesterday in the Budget Statement that an additional €35 million in development funding for mental health services is to be provided in 2018. Let me clarify and make it absolutely clear to everybody that my door is open to any Senator who wishes to have the conversation with me. An additional €35 million in new development funding is being given to me as Minister of State with responsibility for mental health services to initiate new developments in the sector. It is not funding to maintain existing services or to be used towards pay costs. I look forward to debating in this House how the money will be spent. I will take personal responsibility to ensure every cent of the allocation will be spent on mental health services and not returned to the Department of Health or rolled over to any other health sector. If Senators can assist me or offer any guidance in that direction, I would welcome it. Also announced in the budget was an additional allocation of €40 million to be spent next year. I can clarify 100%, despite some of the commentary, that I have been given responsibility to oversee the spending of the additional €35 million in new development funding for the mental health sector. I look forward to doing so. As I said, my door is open to any Member who has concerns or doubts the veracity of what I am saying. It will help us to build on the work commenced in 2017, particularly in the enhancement of community teams for children and adults, as well as later life and mental health intellectual disability services. It will also help us to continue to move towards a fully 24/7 service. It is planned to further improve services for those with eating disorders and a dual diagnosis. I have asked the HSE to use the extra funding to ensure that not only are services of a high quality but also that we are providing as seamless a service as possible for every service user. We now have an opportunity to address our common desire to ensure mental health legislation is as fit for purpose as it can be and meets the highest international standards.

The Bill we are discussing reflects one of the clear priorities of the Government, but it is also a strong reminder that stakeholders in the mental health sector want to see progress in updating mental health legislation. I join other Senators who have acknowledged the presence of representatives of Mental Health Reform in the Visitors Gallery and thank them for their contribution for many years in improving services. That is what we are all focused on. We can split hairs on differences, but essentially we are here to improve services for the service user. I acknowledge the debt of gratitude the State owes to Mental Health Reform and the work Members have continued to do in the mental health sector. We can all agree that mental health legislation needs to be changed. However, we also need to ensure that when the changes are made, they will be made in the right manner and have the intended effect.

It is important to recall that in 2015 the review of an expect group of the Mental Health Act 2001 was published. This first significant review was informed by A Vision for Change and the UN Convention on the Rights of People with Disabilities, both of which had been published since the 2001 Act was passed. The review provides a clear and complete roadmap for how we should amend mental health legislation for the better. The review which contains 165 recommendations is progressive in nature. First and foremost, it set out to promote and protect the rights of persons with a severe mental illness. This is in addition to promoting access to the most appropriate and highest achievable standard of care and support. One of the key recommendations which I welcome and which is referenced in Deputy Jame Browne's Bill is that we move from paternalism and best interest to providing a service that is guided by autonomy, self-determination and respect for a person's dignity, with a presumption that he or she is best placed to determine what promotes or constitutes his or her own dignity.

The previous Government agreed with the broad thrust of the recommendations made in the expert group's review and approved the preparation of the general scheme of a Bill to reflect the changes in revised legislation. That work is under way at official level and expected to be progressed by the end of 2017. This Private Members' Bill, the Mental Health (Amendment) Bill 2017, which is sponsored by Deputy James Browne and which was published on 23 February 2017 has three main goals, the first of which is to seek to amend the existing definition of "voluntary patient" in the Mental Health Act 2001 to include the need for the patient to consent to admission. It also seeks to replace the existing consideration of best interest with a number of principles, including, inter alia, the highest attainable standard in mental health, autonomy, dignity and due respect for the person's own understanding of his or her mental health.Finally, the Bill seeks to link the issue of consent more closely with the provisions under section 3 of the Assisted Decision-Making (Capacity) Act 2015, which deal with a person's capacity to be construed functionally.

The last two changes, relating to best interests and consent, closely mirror recommendations of the expert group review of the 2001 Act. They represent a move away from the often paternalistic interpretation of the existing legislation, best identified by the inclusion of the principal consideration of best interests, which is both necessary and welcome. We all want a situation where, in so far as is possible, individuals have the final say in what is in their best interests and where they receive the best possible quality of service to help them to reach the highest standard of mental health. These changes will effectively move away from paternalism and place greater autonomy in the hands of the individual.

On the issue of consent, while the Assisted Decision-Making (Capacity) Act 2015 was not in place when the expert group reported, what Deputy Browne is proposing is broadly in line what the group proposed in regard to consent and capacity. The first change, relating to the need specifically to include consent in the definition of "voluntary patient", was fully accepted by the expert group and is my top priority change at this time. Moreover, it is required in order to comply with the UN Convention on the Rights of Persons with Disabilities. While what is proposed is absolutely necessary, there is one significant issue which I bring to the attention of Senators. If we change the definition of "voluntary patient" as proposed, then persons without capacity who need inpatient mental health treatment but do not have a mental disorder will not be able gain admission to a psychiatric hospital because they cannot personally consent.

A new definition of "voluntary patient" which includes the need for consent must commence only when other changes are introduced to allow patients without capacity to access treatment. In this regard, my Department is in discussions with the Department of Justice and Equality on introducing new legislative provisions relating to deprivation of liberty. This is a complex piece of new legislation which will cover anyone who lacks capacity and requires admission to a nursing home or facility for persons with disabilities or mental illness. Subject to the agreement of the Department of Justice and Equality, the draft provisions form part of the Assisted Decision-Making (Capacity) Act 2015 and the changes, when agreed, will be introduced on Committee Stage of the Disability (Miscellaneous Provisions) Bill 2016, which has already completed Second Stage in the Dáil.

The expert group initially recommended that persons who lack the capacity to consent to voluntary admission, often described as "compliant incapacitated", should be placed in a new patient category under the 2001 Act to be known as "intermediate". The idea was that such patients would also have available to them all the safeguards currently available to involuntary patients under the Act. Since then, however, it has become clear that all persons going into residential care who cannot, due to lack of capacity, consent to such admission must have safeguards in place. This is to ensure their rights are protected and their will and preferences, to the greatest degree possible, are respected as set out under the Assisted Decision-Making (Capacity) Act 2015. With the new deprivation of liberty safeguards now being framed, there is the opportunity to devise a better and more consistent route to deal with "compliant incapacitated" patients seeking treatment in a psychiatric hospital or unit.

While the proposed changes, particularly the priority amendment relating to changing the definition of "voluntary patient", can be amended by the Oireachtas in the short term, any such change cannot be commenced until the decision support service, DSS, to be established under the Assisted Decision-Making (Capacity) Act 2015 is operational. This is because the draft safeguards currently being worked on at official level use the framework set out in the Assisted Decision-Making (Capacity) Act 2015 and envisage a role for the decision support service. Therefore, before such provisions can be operationalised, the Act must be commenced and the DSS must be in place. A steering group of officials from the Department of Health, the Department of Justice and Equality, the Mental Health Commission and the Office of the General Solicitor for Minors and Wards of Court, which is chaired by the Department of Justice and Equality, is working on the establishment of the decision support service. The first director of the service took up her post on 2 October. There is no doubt, however, that the establishment and operation of this service will be a complex undertaking requiring significant preparation.

I once again thank Deputy Browne for introducing his Bill in the Dáil. We are in agreement that the changes he is proposing need to be made. As I stated during the passage of the Bill through the Lower House, my officials will need time to revisit some of the text to ensure it is fit for purpose and does not have any inaccuracies. My officials plan to discuss the wording of the Bill with the Office of the Parliamentary Counsel and get a legal sign-off before introducing necessary changes on Committee Stage. I ask that my Department be afforded the time to get this right before the Bill is returned to the floor of the House. Members can be assured that my officials and I will review all the comments made here today and will bear them in mind as work progresses on the wording of the Bill. The Government does not intend to oppose the legislation.