Finian McGrath (Dublin Bay North, Independent) | Oireachtas source

I am pleased to be here this afternoon to discuss the Assisted Decision-Making (Capacity) (Amendment) Bill 2019, a Private Members' Bill introduced by Senators Máire Devine, Rose Conway-Walsh and Paul Gavan. I am here to represent my ministerial colleagues, Deputy Harris and Deputy Jim Daly, who were unable to be here today and send their apologies. I will, of course, brief them on the matters arising in today's debate. I particularly thank Senators Devine, Warfield, Buttimer, Freeman, Swanick, Kelleher and Bacik for their contributions. I also welcome Deputy Pat Buckley, who does a lot of work on this issue and makes a huge contribution to the debates on it in the Dáil.

This Bill seeks to amend Part 8 of the Assisted Decision-Making (Capacity) Act 2015 to ensure that patients who are involuntarily detained under the Mental Health Act 2001 will have their advance healthcare directives complied with. The Department of Health is supportive of the overall policy intention behind the amendment. In relation to those detained under the Mental Health Act 2001, the Department agrees that advance healthcare directives should apply to those detained under the Act on the same basis as they do to persons with physical illness. Therefore, the Government does not oppose this Bill. However, this position is subject to engagement with Sinn Féin to amend the Bill later in the legislative process to overcome various substantive and drafting issues that arise with it. I will outline these issues in more detail shortly.

An advance healthcare directive is a statement made by an individual with capacity setting out his or her will and preferences regarding treatment decisions that may arise in the future when he or she no longer has capacity. The purpose of these provisions is to provide a legislative framework for an adult individual to make a legally binding advance healthcare directive to refuse treatment. The advance healthcare directive has been recognised as an expression of an individual's autonomy and as a useful tool in enabling the individual to maintain some level of control over medical treatment into the future, when he or she lacks the capacity to express autonomous preferences. More and more people wish to continue to play an active role in their treatment decisions, even when they no longer retain capacity to do so.

Part 8 of the Act of 2015 puts in place a legislative framework to facilitate those people, who wish to do so, to outline their will and preferences for future treatment in the event that they lose capacity. Part 8 provides for an adult individual to make a legally binding advance healthcare directive to refuse treatment. In order to make an advance healthcare directive a person has to be over 18 years of age and must have capacity. In order for a refusal of treatment in an advance healthcare directive to be considered legally binding, the person must lack capacity to consent to the treatment at the time in question. The treatment being refused must be clearly identified and the specific situations in which the treatment refusal is intended to apply must also be clearly outlined. The provisions will also enable a person to outline specific treatment requests in his or her directive. These requests would not be legally binding but would have to be taken into consideration during the decision-making process relating to that person's treatment.

The provisions introduce a mechanism through which an adult with capacity may nominate in his or her directive a legal representative, who is aware of the person's will and preference, to be involved in the healthcare decision-making process on his or her behalf in the event that he or she loses capacity. This nominee is known as the designated healthcare representative. Evidence shows that advance healthcare directives are a useful tool in enhancing patient autonomy and empowerment. In the context of mental health, these directives can have a positive therapeutic impact for patients and play an important role in patient recovery. The recognition of patient autonomy and the application of the recovery approach are key components of the Government's policy on mental health, A Vision for Change, and are important considerations in the ongoing revision of the Mental Health Act 2001.Facilitating the participation of people with mental illness in making decisions regarding their treatment acknowledges that such people generally know best what works for them. The reason those detained under the Mental Health Act 2001 were excluded from the scope of advance healthcare directives was that when the Assisted Decision-Making (Capacity) Act 2015 was being drafted, a review of the Mental Health Act 2001 was also under way. It was decided that the review of the Mental Health Act 2001 should be completed before any change was made regarding the treatment of those detained under the Mental Health Act 2001.

The report of the expert group review of the Mental Health Act 2001 recommended the introduction of legislation providing for advance healthcare directives which should apply to mental health on an equal basis with general health. On that basis, the general aim of the Bill is in line with Department of Health policy. The previous Government agreed with the broad thrust of the recommendations of the expert group review of the Mental Health Act 2001 and approved the preparation of the general scheme of a Bill to amend the 2001 Act to reflect the recommendations of the review in revised legislation. Work is progressing in the Department of Health on these important amendments, with draft heads of the Bill currently with the Mental Health Commission for its observations. Some Senators referred to delays in this regard. It is essential that the Mental Health Commission, which has a significant and important role in overseeing the safeguards provided in the Act, has full input into the framing of the many amendments to be included in revised mental health legislation. This is a phase in the process and the commission likely to require a period in the region of six months to study and comment on the draft heads. I mentioned earlier that the Government does not oppose the Bill. However, I must again stress that there are certain issues of drafting and of substance that need to be addressed.

At present, there are four major areas of concern. The first is that for advance healthcare directives generally, a request for specific treatment is not legally binding on a healthcare professional but will be taken into consideration when a treatment decision is being made. Section 2(b) states that an advance healthcare directive shall be complied with in respect of treatment given. This appears to make a request for specific treatment by a directive-maker detained under the Mental Health Act 2001 legally binding on a healthcare professional, regardless of the appropriateness of that treatment, while a request from any other directive-maker is not legally binding. It is unclear whether this anomaly is intended or what is the policy justification for it. Either way, the implications for the operation of Part 8 of the 2015 Act could be significant and it could make the legislation susceptible to constitutional challenge on the grounds of equality. That is a concern and we must monitor the position in respect of it.

The second area of concern is that the Bill does not address the very specific scenario where an involuntary patient whose treatment is regulated under Part 4 of the Mental Health Act 2001 lacks capacity but has a valid advance healthcare directive that refuses all treatment. At the moment, a person who has capacity and is detained under the Mental Health Act 2001 can refuse all treatment and, in such circumstances, his or her detention could continue even if he or she is receiving no treatment. However, the expert group review of the Mental Health Act 2001 recommended that the criteria for detention outlined in the current Act be amended so that in future if no treatment is being received by the patient, then the detention should no longer continue. This change clearly reflects the view that psychiatric hospitals are where ill patients go to get treatment. Where an advance healthcare directive refusing all treatment is being invoked in the case of a patient who is being involuntarily detained and lacks capacity, the Department of Health will need to carefully consider whether such a scenario needs to be provided for, and what that provision should be. The question also arises as to whether such provision should apply only where another person's life might be in danger, where the life of the detained person may be in danger or where his or her health may be in danger.

The third area of concern is that, in addition to patients detained under the Mental Health Act 2001, Part 4 of the Mental Health Act 2001 applies to patients in a designated centre under the Criminal Law (Insanity) Act 2006, including those who are not fit to stand trial, who are not guilty by reason of insanity and who have been transferred from a prison to a designated centre for treatment of a mental disorder which they cannot receive in the prison. My colleague, the Minister for Justice and Equality, has noted that the provisions cited in section 2(a), namely, section 4(3)(b)(i) and (ii) and section 4(5)(c)(i) and (ii) of the Criminal Law Insanity Act 2006, only address committals where an accused is unfit to be tried. The Minister has informed me that the proposed amendments in section 2(a) should also apply to orders under section 5(2) and section 15 of the 2006 Act. Section 5(2) provides for a committal to a designated centre following a finding of not guilty by reason of insanity, and section 15 provides for a transfer of a prisoner deemed to be suffering from a mental disorder for which he or she cannot receive adequate treatment in the prison, to a designated centre in order to receive the necessary treatment. Failure to provide for these matters could cause a serious problem with the application of orders under the 2006 Act. The Minister for Justice and Equality would be particularly concerned that a situation could arise where a person who has in place a valid advance healthcare directive, refusing psychiatric treatment, may not be treated if he or she is detained in the Central Mental Hospital following a finding of not guilty by reason of insanity or following a transfer from a prison to the Central Mental Hospital.

The fourth issue is that the Long Title of the Bill seeks to bring about improvements for patients detained both under the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006. Subject to the previously outlined concerns of the Minister for Justice and Equality being resolved, the Long Title may need to be amended in respect of those who are detained pursuant to the Criminal Law (Insanity) Act 2006.

It is worth noting that the main provisions of Part 8 of the Assisted Decision-Making (Capacity) Act 2015 have not yet commenced, so while advance healthcare directives are on the Statute Book, no person can benefit from this legislation until further sections are commenced. Therefore, there is time to deliberate on the concerns outlined to form the basis of a considered view of how best to proceed. The Minister of State, Deputy Jim Daly, and Department of Health officials will work with the Senators to address these matters.

I commend Senator Devine and the other Senators involved on their work in this area. I also commend their commitment to work in the interests of the rights, will and preference of the patient.