Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank the Senators for their input. I will respond to Senators Flynn and Warfield in respect of the Bill being rushed and things like that. Senator Seery Kearney spoke about that previously. I do not want to start off in defensive mode but it is important to state that we wished to have the Bill passed in June this year. I had set out my intention to move it rapidly through both Houses at that stage.In the context particularly of debates in the Dáil and on Second Stage in this House, it became clear there were significant concerns in respect of a number of areas, especially in the area of AHDs. At that stage, I decided to slow this down a little. Between then and Committee Stage in this House, and now Report Stage, I have spoken with a significant number of Senators regarding their concerns in respect of different parts of the legislation. We have brought in a significant change. It does not resolve all the issues. I have been upfront in that regard and will speak more on the work happening in the Department of Health at the moment.

As regards the suggestions that we are rushing the Bill, as Senator Seery Kearney pointed out, the 2015 Act has not kicked in, seven years after its enactment. Wardship is still in place. Following our previous debate in the House on the Bill, I met with the Mental Health Commission, as had been suggested. It made the same point as many Senators in respect of dissatisfaction about not everybody being covered by AHDs. It made that point clearly but it also made the point that we need to get rid of wardship. As regards delaying the passage of the Bill, the only option I see is to delay it until the mental health Bill is enacted. We will speak more on that process but that Bill being enacted is some time away and that is a time when more people would be put into wardships and more people would miss out on the significant benefits of the decision support service, DSS, and the tiered situation we have put in there. That is why I do not believe it is being rushed. It is now time to take a significant step forward in terms of ending wardship and getting the DSS up and running. I hope I will be able to give an indication in respect of the actions I have taken to try to reduce the number of people who are not able to avail of AHDs, but also in terms of the work being undertaken by the Department of Health.

I will deal with amendments Nos. 1, 14 and 19 first. As I have stated previously in both Houses, the Minister for Health, Deputy Donnelly, and I strongly agree that parity should exist in the operation of AHDs. It is a technically complex issue from legal and public health perspectives. The legal advice I have received is that it is not feasible to advance this issue in the absence of reform of Part 4 of the Mental Health Act 2001. In light of the current work to comprehensively reform that Act, I cannot support the proposed amendment to delete sections 85(7) or 136. The Government has shown a commitment to addressing this issue and the amendments I tabled on Committee Stage demonstrate that. Those amendments will provide access to AHDs for additional cohorts whose treatment is currently regulated by Part 4 of the Mental Health Act 2001 and who were previously excluded from the supports under the 2015 Act. Those amendments represent a significant step towards parity and will allow an AHD to apply in the majority of circumstances in which a person's treatment is regulated by Part 4. That provides for the addition of people treated under section 3(1)(b) of the Mental Health Act. That is the change we made on Committee Stage. This is an important move forward, one that acts as a stepping stone to greater parity for all persons in accessing AHDs. I hope the extension provided will greatly benefit those who may otherwise not have had control of their treatment preferences.

As regards amendment No. 13, I am not in a position to accept it, unfortunately. The 2015 Act was designed and developed with adults in mind and it does not provide decision-making supports for those aged 16 or 17 years. In the main, this is appropriate as minors cannot currently independently make many of the decisions referred to in the Act, particularly in the context, for example, of the management of an estate. As previously stated in this Chamber, I am aware that 16- and 17-year-olds can consent to certain medical and dental treatments and, as Minister for Children, Equality, Disability, Integration and Youth, I recognise the agency young people should have in their everyday lives. However, the legal position on what should occur if a minor and a parent or guardian disagree on treatment options is not one that is yet settled in this jurisdiction. Part 8 of the 2015 Act falls to the Minister for Health, and my Department has engaged with the Department of Health, as well the Department of Justice, which has a legal and legislative responsibility for issues relating to guardianship.We have discussed the wider implications of making amendments on this matter. A body of family law is in existence with regard to the status of minors, including their rights, and the rights of parents and guardians. In this regard, it is necessary to balance both the rights and interests of a minor and his or her guardians in situations. This is a big question. It does not just apply to consent for certain healthcare treatments. It must be applicable everywhere. That is the reason for the view, across Departments, that it was not appropriate for us to take a step on one issue in this matter but to address it within the wider context.

We spoke a great deal about how the work we are doing here links in with the work of the reform of the Mental Health Act 2001. At our last meeting, I committed to writing to the Minister for Health, Deputy Stephen Donnelly, and the Minister of State, Deputy Butler, to receive an update on that. I have an update and I propose to read the whole letter, dated 29 November, into the record because it is valuable and very much speaks to the crux of the issue we are addressing in this amendment.

The letter referred to my letter of 17 October with regard to the review of the Mental Health Acts and the reform of the same in the mental health Bill currently being drafted by the Office of Parliamentary Legal Advisers. The letter referred to my having rightly mentioned the close and ongoing collaboration between officials in both Departments on matters of shared interest in the Assisted Decision-Making (Capacity) Act 2015 and the Assisted Decision-Making (Capacity) (Amendment) Bill 2022, including the establishment and operation of the decision support service, the introduction of advanced healthcare directives and the interface between the Assisted Decision-Making (Capacity) Act and the Mental Health Acts.

The letter goes on to state that sections 85(7) and 136 of the 2015 Act disapply the provisions of the Assisted Decision-Making (Capacity) Act from applying to individuals whose treatment is regulated by Part 4 of the Mental Health Act, namely, those involuntarily detained under that Act subject to an admission or renewal order and individuals detained subjected to the Criminal Law (Insanity) Act 2006. It points out that, as I will be aware, officials in both Departments worked to remedy this exclusion and sought legal advice from the Office of the Attorney General.

The letter goes on to say that given the architecture of the existing Mental Health Acts, concerns were expressed over whether absolute treatment refusals by individuals whose treatment is regulated by Part 4 might undermine the validity of the order detaining them, where treatment is the basis of detention. It states that given those concerns, it was felt sections 85(7) and 136 of the Assisted Decision-Making (Capacity) Act could only be amended to allow individuals detained on the grounds of section 3(1)(b) of the Mental Health Acts to access the provisions of the Assisted Decision-Making (Capacity) Act.

The next paragraph of the letter is especially important in that it states the Department is in full agreement that this compromise is an interim measure until the issue can be addressed more comprehensively in the mental health Bill which will significantly overhaul provisions in Part 4 related to consent to treatment, to bring it into closer alignment with the provisions of the Assisted Decision-Making (Capacity) Act, which will seek to extend the provisions of the Assisted Decision-Making (Capacity) Act to all individuals whose treatment is regulated by Part 4 in a manner which does not undermine the validity of the orders detaining them.

The letter goes on to point out that, as I will be aware, the Government approved and published the general scheme of a Bill to amend the Mental Health Act in July 2021 and that the scheme contains more than 120 heads that, much like many of the provisions of the Assisted Decision-Making (Capacity) Act, deal with complex issues with regard to the right to liberty, good health and the right to autonomy and self-determination and the interplay between these different rights.

The letter states that in January 2022, drafters in the advisory council were assigned to draft a mental health Bill in line with the general scheme and that since then, officials in the Minister of State's Department have been working with their counterparts in the Office of the Attorney General to address outstanding legal issues in the general scheme, especially protection of liberty concerns for the cohort of individuals known as the compliant incapacitated. It states that recent correspondence between the Minister of State's Department and the Office of the Attorney General indicates a solution to this issue may be agreed upon shortly and that the Minister of State's officials have requested a meeting with the parliamentary drafters on the advisory council to plot out the development of the Bill in the coming months with a view to progressing the final draft Bill, as much as possible, during the spring 2023 legislative session.

The letter goes on to say that the Minister of State expects the meeting to take place before the year end and that the Minister of State has engaged with the Chief Whip to ensure this Bill will be deemed priority legislation in the spring session. It also states the Minister of State has asked her officials to continue to engage with counterparts in my Department during the development of the Bill on areas of shared interest, especially on the alignment between the Bill and the Assisted Decision-Making (Capacity) Act, as well as provisions with regard to the care and treatment and children. The Minister of State has asked her officials to keep my officials abreast of progress on drafting of the Bill.

I will reference the Minister of State's statement in that we are in agreement the Bill we seek to pass today represents a compromise. It is an interim measure but the intention, through the reform of the mental health Bill, is to seek to extend the provisions of the Assisted Decision-Making (Capacity) Act to all individuals whose treatment is regulated by Part 4. I stress that the Minister of State has sought and received agreement from the Chief Whip that the mental health reform Bill will be regarded as priority legislation. It will get priority drafting with a view to having it in the spring session, that is, the session following our return after the Christmas break.

I am sorry that was a lengthy contribution but it was worthwhile. The letter gives clear information on the priorities of the Minister of State, the Minister and the Government and the timeline we are working to achieve. We hope to pass the legislation in this session and address the remaining outstanding issues within the mental health Bill.