Pat Buckley (Cork East, Sinn Fein)
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69. To ask the Minister for Justice and Equality for an update on the provision of advanced health care directives and assisted decision-making for persons with mental health difficulties; and the cost of these services to the Exchequer [12100/16]

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Assisted Decision-Making (Capacity) Act 2015 provides a modern statutory framework to support decision-making by adults with capacity difficulties, including those with mental health difficulties. The specific decision making supports available to persons under the Act are decision-making assistants, co-decision-makers and decision-making representatives who will be supervised by the Director of the Decision Support Service.

Under the Act a person may appoint a decision-making assistant – typically a family member or carer – through a formal decision-making assistance agreement to support him or her to access information or to understand, make and express decisions. Decision-making responsibility remains with the person. A person can also appoint a trusted family member or friend as a co-decision-maker to make decisions jointly with him or her under a co-decision-making agreement. Decision-making responsibility is shared jointly between the person and the co-decision-maker. For the small minority of people who are not able to make decisions even with help, the Act provides for the Circuit Court to appoint a decision-making representative. A decision-making representative will make decisions on behalf of the person but must abide by the guiding principles and must reflect the person’s will and preferences where possible. The Act also provides for forward planning with enduring powers of attorney and advance healthcare directives that allow someone with capacity to plan ahead for circumstances in which they may not have capacity in the future.

The regulatory impact assessment (RIA) which was published in conjunction with the Bill in 2013 indicated that the cost of implementation of the Act would be approximately €1.13 million per annum. However, since the publication of the RIA in 2013 a number of changes were made to the Bill as it passed through the Houses of the Oireachtas which may have financial implications, including moving the Decision Support Service from the Courts Service to the Mental Health Commission, which is an agency of the Department of Health. My Department recently engaged in a high level meeting with the Department of Health to discuss the bringing into operation of the Decision Support Service, including in respect of the financial implications.

With regard to the specific matter raised by the Deputy regarding advance healthcare directives and persons with mental health difficulties, these are policy matters for the Department of Health who have provided me with the following responses:

Part 8 of the Assisted Decision-Making (Capacity) Act 2015 provides a legislative framework for advance healthcare directives. Given the intersection between the aims of the capacity legislation and the role of advance healthcare directives, the Assisted Decision-Making (Capacity) Act (2015) was considered to be the most appropriate vehicle for providing a legislative framework for such directives.

The Act establishes a single legislative framework for advance healthcare directives that enable individuals to make decisions about both their physical and mental healthcare. However, a refusal of treatment in an advance healthcare directive would not be legally binding where a person’s treatment is regulated under Part 4 of the Mental Health Act (2001) or where a person is the subject of a conditional discharge order under the Criminal Law (Insanity) Act (2006). A commitment was given in the Oireachtas that the issue of extending the legally binding advance healthcare directives provisions to all individuals with mental illness, including those whose treatment is regulated under Part 4 of the Mental Health Act (2001), would be dealt with in the context of the revision of the Mental Health Act.

Under the Assisted Decision-Making (Capacity) Act the Minister for Health will convene a multidisciplinary expert group to assist with the development of a Code of Practice to provide advice and guidance on how the advance healthcare directive provisions will operate on a day-to-day basis "on the ground", including providing examples of best practice.