Frances Black (Independent) | Oireachtas source

I welcome the Minister. I have a number of amendments in this group dealing with the issue of the exclusionary invalidation of the advance healthcare directives, AHDs, of some people who have been involuntarily detained. It is such an important issue that impacts people's health, autonomy and dignity. Because time is short, I will try to address all of my remarks on this issue when dealing with this amendment.

It is a deeply complex area of law. I want to highlight the assistance and support I have received from some of the most amazing campaigners working in this area. I want to give huge thanks to Ber Grogan and the team at Mental Health Reform, Fiona Walsh and other members of Recovery Experts by Experience, who so courageously shared their experiences with me, NUI Galway lecturer, Fiona Morrissey, whose work on the AHD is central to my advocacy on this issue, and, of course, Professor Eilionóir Flynn and everyone in the NUIG Centre for Disability Law and Policy. To everyone who has followed the passage of this legislation so closely, I thank them. I want to apologise that, I have no doubt, this Bill is not what they hoped it would be. The legislation provided an opportunity to decisively break from a paternalistic and oppressive mode of wardship and create a system that is truly empowering and human rights-compliant. It does not achieve that, which weighs heavily on me.

AHDs enable a person who experiences mental illness to make plans while they are healthy and, if complied with, it gives them peace of mind, knowing that their wishes will be respected, even when they are at their most vulnerable and unable to fully advocate for themselves. They are essential tools used to uphold the dignity and agency of people experiencing mental health difficulties. They are a source of security and safety amid the fear and chaos that can accompany mental ill health. If they are respected and upheld, AHDs encourage people to seek the help they need because they can be assured their rights will not be violated if it is judged that they will be subject to involuntary detention.

The legislation, as it stands, mandates compliance with the AHDs made by some people detained under the Mental Health Act but not others. Those admitted under section 3(1)(b) because the clinician believes they will deteriorate, or that they will substantially improve if detained, will have their wishes respected, and those detained under section 3(1)(a) who are deemed to be at risk to themselves or others will have their wishes disregarded. Two-tier approaches to human rights obligations re-inscribe inequality. Mental healthcare can involve shifts in status and in classification. Sometimes these changes happen rapidly. People can go from voluntary to involuntary treatment and their classification as section 3(1)(b) or section 3(1)(b) can be altered.

The Government's partial solution leaves a gaping hole in the system whereby any person with mental illness and an AHD is at risk of it being disregarded.It fundamentally undercuts the dignity and peace of mind that advance healthcare directives are meant to provide. It is causing enormous concern among the campaigners directly impacted by this legislation. Unfortunately, I am yet to hear one good explanation for why this discrimination is being maintained. On Committee Stage, the Minister alluded to interdepartmental negotiations and legal advice as reasons he could not entirely remove the provisions of the legislation which discriminate against people who have been involuntarily detained. He stated that the changes had to be achieved through the reform of the Mental Health Act 2001, which is to happen at an indeterminate point in the future. I respect that this is the course of action the Minister feels he is bound to pursue but the campaigners who are working so hard on this issue deserve a mode detailed explanation. They deserve a solid timeframe for change on which they can rely. The whole saga has been a years long case of hurry up and wait for the people who have ended up in wardship or who have had their advance healthcare directives overruled. It is a delay that has had a bad impact. It is sad that people will have to wait further still. Any distinction between the decision-making rights of people with physical and mental conditions or disabilities is contrary to the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, and the principal Act is intended to provide the normative framework for legal capacity and decision-making rights in Ireland and to comply with our obligations under the UNCRPD. It is therefore crucial that the existing inequality which is contained in the Act is removed. There is no conflict between accepting this amendment and reform of the Mental Health Act. In fact, clear equality for people with psychosocial disabilities in this Act will assist reform of the Mental Health Act in a manner compatible with our obligations under the UNCRPD. This amendment would remove any equivocation and ensure that the human rights and dignity of involuntarily detained individuals is protected. It would provide clarity and comfort for individuals who need it. I hope the Minister will consider accepting this amendment.