That leave be granted to introduce a Bill entitled an Act to amend the Assisted Decision-Making (Capacity) Act 2015 relating to treatment of patients under the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006; to improve the provision of mental health services; to promote the rights of persons subject to the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006; and to provide for related matters.
The Assisted Decision-Making (Capacity) Act 2015 established a number of new legal provisions to address issues of consent and capacity in the provision of health care treatments for patients. One such provision was a statutory right to develop and have respected, as practicable, advance health care directives. Advance health care directives are documents in which a person specifies what action should be taken if in the future he or she is no longer able to make decisions for himself or herself because of illness or incapacity. A well known example of such a directive is what is called a DNR - do not resuscitate.
Should a patient ordinarily require cardiopulmonary resuscitation, CPR, or ventilation, this treatment will not be administered. These directives can be particularly important in mental health care, where empowering people to involve themselves in their care and recovery has been demonstrated to help improve outcomes. The Assisted Decision-Making (Capacity) Act 2015, while providing for directives, excludes people being treated as involuntary patients in mental health services. An involuntary patient does not, by definition, lack the capacity to make any decisions about care. This is very clear in legislation, despite the exclusion of such patients from having the right to advance health care directives.
This amending Bill would remove that block on involuntary patients with capacity forming advance health care directives. It was developed by Mental Health Reform and in conjunction with Sinn Féin. The amending Bill explicitly refers to the inclusion of involuntary patients in the definitions section. It also removes the section that blocks involuntary patients from this right. An advance health care directive is a legal document in which a person specifies what action should be taken for health purposes if the person is no longer able to make decisions because of illness or incapacity. These are provided under the Assisted Decision-Making (Capacity) Act, which has yet to be commenced, but only for voluntary patients. As involuntary patients do not necessarily lack capacity and advance health care directives are often drafted by patients who have capacity, this is a very unfair separation.