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

I thank Members for facilitating Report and Final Stages of the Bill. I will outline the context arising from Committee Stage of the Bill. These amendments have been grouped together as amendments Nos. 7, 9 and 10 relate to section 4 and provide for guiding principles for children. Amendments Nos. 1 to 4, inclusive, are included in this group as the definitions referred to here also relate to terms used in the amendments proposed to section 4. As amendments Nos. 11 and 12 deal with definitions they have also been added to this group. I will start by discussing amendments Nos. 7 and 9, which are Government amendments, and amendment No. 10, which contains an alternative text proposed by Senators Swanick, Ardagh and Wilson.

Section 4 of the 2001 Act is entitled "Best interests" and covers both adults and children. As it is proposed to remove the reference to best interests for adults, we must now reinsert the best interests provision for children in the 2001 Act. In the amendments I am putting forward, I propose to delete the full text of section 4 and replace it with very similar provisions. Deputy Browne had originally proposed to place this text in section 25 of the 2001 Act. As section 25 only applies to involuntary patients and as the Deputy and I want this section to apply to all persons treated under the 2001 Act, we are suggesting instead that this text be added as a new section 4A of the 2001 Act, immediately after the new section entitled "Guiding principles for adults".

While I had been inclined to accept and, indeed, add to Deputy Browne's text, legal concerns were raised with my officials by the Office of the Parliamentary Counsel, OPC. The OPC advised that some of the proposed provisions regarding children may impinge upon the constitutional rights of children and their parents and guardians. It further advised that it is imperative that the Department be satisfied that these provisions correctly address the rights of the various relevant parties and they should dovetail appropriately with all applicable legislation. In particular, the OPC asked that my officials confirm that they were satisfied that the proposed changes would not have any unintended negative effects on child-related legislation across other Departments.

Although my Department supported the amendments from a policy point of view and was unable to identify any obvious negative impacts, I am obliged to pay appropriate attention to the legal concerns raised and may only propose amendments that we are satisfied will not have unintended legal or constitutional consequences. The Government amendment to this section of the Bill, therefore, mirrors the current text of section 4 but proposes deleting references to the rights of the child to be heard having regard to his age and maturity. Senators Ardagh, Swanick and Wilson have proposed amendments that are broader in scope but, given the legal concerns expressed, I propose that the House will agree to Government amendments Nos. 7 and 9 in order to allow the issues raised to be considered more fully.

Regarding Government amendment No. 3 and amendment No. 4 in the names of Senators Swanick, Ardagh and Wilson, the former relates to definitions in the 2001 Act. The Government is proposing to add to the definitions in the Bill and to rephrase the definition of "voluntary patient". Amendment No. 3 adds a definition for the Assisted Decision-Making (Capacity) Act 2015 and one for guiding principles in addition to the rephrased definition in respect of voluntary patients, also to be included in section 2 of the 2001 Act. Amendment No. 4 differs only slightly from the Government's amendment with regard to the definition of "guiding principles". We state that the guiding principles should be construed in accordance with section 4 of the 2001 Act, as my Department is now proposing, that is, guiding principles for adults but retaining best interests for children as per Article 3 of the United Nations Convention on the Rights of the Child. Amendment No. 4 retains a reference to guiding principles in respect of children, so the definition proposed includes a reference not just to section 4 of the Act but also the new proposed section 4A. This is important because if the House decides to accept Government amendments Nos. 7 and 9, the logical consequence is that Senators should also agree to amendment No. 3. On the other hand, if amendment No. 10 is accepted, it follows that Senators should also choose amendment No. 4 because the definition it contains flows directly from the text of amendment No. 10. When the amendments are being put to the House, I ask the Leas-Chathaoirleach to bear this linkage in mind.

The same text has been submitted by both the Government and Senators Swanick, Ardagh and Wilson in amendments Nos. 1 and 2. Both amendments can be accepted.

Before I conclude and in case this gets lost in the technical discussion about accepting or rejecting numbered amendments, I remind Senators of the consequences of amending the definition of "voluntary patient". There is no disagreement on this. The definition in the 2001 Act is inadequate and must be amended to ensure that, in future, a voluntary patient is a person who formally consents to admission and treatment. The reference to consent is missing from the current definition. However, this change cannot proceed without any associated changes being introduced. The suggested definition of "voluntary patient" would immediately result in some people being denied inpatient treatment. Such persons would be those who lack capacity and who, therefore, cannot provide consent. However, while they would need inpatient treatment, they would not be sufficiently mentally ill to warrant admission as involuntary patients. As they lack capacity and cannot consent to treatment, they could not be voluntary patients but, equally, if they do not suffer from a mental disorder within the meaning of section 3 of the Act, they could also not be detained. Such patients are sometimes referred to as the compliant incapacitated. Before any new definition of "voluntary patient" which explicitly refers to consent commences, we must also include lawful measures which ensure that at no stage would the compliant incapacitated be denied treatment.

In this regard, my Department is currently working on the deprivation of liberty safeguards that would be intended to allow persons without capacity to consent to be lawfully admitted to residential care and to psychiatric hospitals for treatment. It is essential that the change of the definition of "voluntary patient" occurs simultaneously with the commencement of provisions relating to deprivation of liberty. Draft heads of a Bill relating to deprivation of liberty safeguards were the subject of a recent public consultation and the views put forward during that consultation are now being considered by a working group based in the Department. I expect that the deprivation of liberty Bill will be presented to the Oireachtas as soon a possible. Finally, I will move on to amendments Nos. 11 and 12. The Government and Senators Swanick, Ardagh and Wilson have submitted amendments to sections 5 and 6 of the Bill, which seek to delete both sections. At my meeting with Deputy Browne last week I explained that, while he had put forward a reasonable proposal to define consent for the purposes of a voluntary patient, the legal advice available to me is to the effect that consent is a feature of common law. On that basis, including a specific definition in this Bill might have unintended consequences in other legislation which also deals with consent. It is appropriate, therefore, that sections 5 and 6 be deleted and no replacement text is required here.

In summary, I appreciate this is complex and technical. If the Fianna Fáil Senators are not withdrawing their amendments, I am prepared to withdraw the Government amendments Nos. 3, 7 and 9 and, as a result, I will not object to amendments Nos. 4 and 10, which are consequential to the Senators' proposals.

The second group of amendments are amendment Nos. 5 and 6 and if Fianna Fáil Senators are not withdrawing their amendment No. 6, I am prepared to withdraw the Government amendment No. 5 and I will not object to amendment No. 6. I therefore accept amendments Nos. 1, 2, 4, 6, and 10 to 12, inclusive.