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

I thank Deputy James Browne for introducing the Bill, which has passed through the Dáil. As I have stated previously in the House, I recognise and value the importance he and others in both Houses attach to the need for introducing these changes to our mental health legislation. While there were no amendments before us, I would like to apprise Members about the reason for that and my plans to amend the Bill on Report Stage but, before I get into that detail, I would like to make a few remarks.

It is incumbent on me to flag the amendments I wish to table. The Bill has three main goals. First, section 2 seeks to amend section of the Mental Health Act 2001 by updating the definition of "voluntary patient" to include the need for the patient to consent to admission. Second, sections 3 and 4 seek to amend sections 4 and 25 of the Mental Health Act 2001 by replacing the existing principal consideration in the Act of best interest with a number of principles, including, inter alia, the highest attainable standard of mental health autonomy, dignity and with due respect for the person's own understand of his or her mental health. Third, sections 5 and 6 seek to amend sections 56 and 57 of the Mental Health Act 2001 by linking more directly the issue of consent with section 3 of the Assisted Decision-Making Capacity Act 2015, which deals with a person's capacity to be construed functionally. The final two changes relating to best interest and consent closely mirror recommendations of the expert group review of the 2001 Act. The move away from the often paternalistic interpretation of the existing legislation best identified by the inclusion in the Act of the principal consideration of best interest is both necessary and welcome. We all want a scenario where in so far as possible individuals have the final say in what they feel is in their best interest and receive the best quality of service they need to reach the highest standard of mental health. This change will effectively move away from paternalism and place grater autonomy in the hands of the individual. However, when the analysis of the Mental Health Commission and my Department of the Bill's proposals is complete, I intend to revisit the list of adult guiding principles and it is likely that further changes in line with the recommendations of the expert group review will be proposed.

Deputy Browne sets out proposed guiding principles for children in section 4. I have concerns, as the principles are more adult-related and do not take account of the child-friendly guiding principles recommended by the expert review group. The commission is yet to give us its views on this but when they are received, I intend to discuss them further with the Deputy. In this regard, an important issue yet to be decided is whether "best interests", which will remain for children, should be a principal consideration in revised mental health legislation, as it is in the current 2001 Act, or whether "best interests" should be one of the list of child-friendly guiding principles, all of which would have equal value and merit. The views of the commission will be key to how I intend the phrase specific amendments on Report Stage.

With regard to consent, which the Assisted Decision-Making Capacity Act 2015 was not in place when the expert group reported, nonetheless, what the Deputy is proposing is considered to be broadly in line with what the group proposed in respect of consent and capacity. In addition, the specific reference to capacity and consent, which is now likely to be included in revised legislation, requires further examination as to whether other changes relating to assessment of capacity and who can assess capacity in the context of the Mental Health Act 2001, notwithstanding the fact that under the Assisted Decision-Making Capacity Act 2015, only a court can determine capacity. How further amendments on Report Stage may be framed will depend on whether capacity can be assessed other than just through the courts as the Assisted Decision-Making Capacity Act 2015 would seem to suggest.

The first change relating to the need to specifically include consent in the definition of "voluntary patient" was fully accepted by the expert group and is a change I fully support. The definition of "voluntary patient" proposed by the Deputy, however, differs from the one recommended by the expert group. While the Deputy's definition references the Assisted Decision-Making Capacity Act 2015, the expert group specifically spelled out a more detailed definition that did not reference the Act. The Department is waiting on the advice of the Mental Health Commission as to what the exact wording of the new definition should be. Furthermore, the Deputy proposes to amend sections 56 and 57 in Part 4 of the Mental Health Act 2001 and add provisions that specifically relate to consent and voluntary patients. Unfortunately, Part 4 of the Act only deals with involuntary patients and the inclusion of these provisions could fundamentally alter the nature of this Part. My Department is in consultation with the commission regarding the effects such a change might have elsewhere in the Act. The outcome of the discussions will help determine how we can best amend the Act to deliver on the aims of the Deputy in sections 5 and 6 of this legislation.

Finally, I would like to highlight one further significant issue regarding the Bill in respect of the amendment of the definition of "voluntary patient". If the proposed changes to the definition are accepted, persons without capacity who need inpatient mental health treatment but who do not have a mental disorder will be unable to 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. There are no proposals to deal with this in the Bill and, on the face of it, this would be an impossible position for any legislator to defend. In this regard, my Department has separately launched a public consultation on draft legislation relating to deprivation of liberty with the final date for receipt of submissions being 9 March. It is intended that the new provisions will be included in the Assisted Decision-Making Capacity Act 2015. This is new complex legislation, which will also cover anyone who lacks capacity and is a resident in a range of health facilities, including nursing homes or facilities for persons with disabilities or mental illness. It is intended that the draft provisions, now published, will also apply to mental health facilities in circumstances where persons have mental health issues but are not suffering from a mental disorder and, therefore, cannot be involuntarily detained under the Mental Health Act 2001, nor can they be admitted as voluntary patients under the new proposed definition, as they lack capacity to give such consent. It is likely that the deprivation of liberty provisions will go before the Oireachtas later in the year.

We must all be conscious as legislators that, in amending the definition of "voluntary patient" as proposed, without at the same time passing alternative legislative provisions to allow persons without capacity or a mental disorder to access inpatient treatment, we leave ourselves open to criticism that the measures in this Bill alone seek to introduce an incomplete proposal. In this regard, it is also important to mention that, while the proposed amendment relating to changing the definition of voluntary patient can be amended by the Oireachtas in the short term, any such change agreed by the Oireachtas also 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 contained in the deprivation of liberty proposals use the framework set out in the Act and envisage a role for the service and, therefore, before such provisions can be operationalised, both the Act needs to be commenced and the DSS needs to be in place. We have time available to us to ensure we properly scrutinise the text of this Bill and ensure it is appropriately drafted and is fit for purpose.

I once again thank Deputy Browne for introducing the Bill. I have asked him not to proceed to Report Stage until the Mental Health Commission and the Department have completed their analysis of the Bill. As the provisions cannot be enacted until the DSS is commenced, there is no impediment to the Deputy holding off on going to Report Stage until the final text of the legislation is agreed between myself and the Deputy. I do not envisage that this will take too long, but it is essential that this work be allowed to finish its course. I am supportive of the changes being proposed in the Bill and we are all in agreement here that the changes the Deputy proposes need to be made. However, I have outlined my concerns regarding certain aspects of the Bill and as the analysis and legal examination of the text has not been finalised by the Department and the Mental Health Commission, I will only be in a position to propose amendments on Report Stage.On that basis, the Government will not oppose the Bill but will table amendments on Report Stage.