Frances Black (Independent) | Oireachtas source

I move amendment No. 3:

In page 8, between lines 6 and 7, to insert the following: “(e) section 85(7);”.

Amendment No. 42, which was tabled by the Minister, will mandate compliance with AHDs made by some people detained under the Mental Health Act but not others. Those admitted under section 31(b), because the clinician believes that they will deteriorate or substantively improve if detained will have their wishes respected. Those detained under section 31(a) who are deemed to be a risk to themselves and others will have their wishes disregarded. That is the concern. Two-tier approaches to human rights obligations rarely work, as Senator Seery Kearney said earlier.

The Government's amendment creates a slightly perverse incentive, for even well-meaning psychiatrists who believe that the preferred treatment plan should override the detained person's wishes to detain them under the wrong subsection in order that they can proceed with full discretion. This observation is not meant as an attack on the professionalism or compassion of the psychiatric profession, but it is a recognition that we should draft laws in a way that insulates vulnerable people from potential abuse.

This system is a very complex and fallible nexus of human psychology, clinical judgement and legislation and, ultimately, doctors face the difficult task of fitting the nuances of human behaviour and distress into one box or another. This is very subjective. Limited categories can never hope to capture the full complexity of an individual's circumstances.

I acknowledge what the Minister said about having conversations with the Attorney General, but we have to be mindful of this. We have to be careful. The concern is whether a person's dignity or human rights will be upheld. It should not depend on such a flimsy measure, if that makes sense to the Minister.

My amendment would remove any aggravation and ensure the human rights and dignity of involuntarily-detained individuals are protected. It would provide clarity and comfort for individuals who need it. It is in the hands of a psychiatrist or doctor to make that judgement, which is very worrying.

I ask the Minister for further clarification on this. He may feel that he is repeating himself but I am concerned. I ask that we have further conversations before Report Stage.