I move: "That the Bill be now read a Second Time."
As Minister of State for mental health and older people, I am pleased to introduce the Mental Health Bill to the House. The Bill has been long in gestation. A commitment to review the Mental Health Act 2001 “informed by human rights standards and in consultation with service users, carers and other stakeholders” was committed to by the current and previous Governments. The review of the Mental Health Act and the development of a new Bill have featured in successive programmes for Government and are long-standing priorities for me and my Department. The Bill is also a priority under Sharing the Vision and Sláintecare.
While the 2001 Act was robust, progressive legislation for its time, the delivery of mental health services has progressed significantly since that time. The 2001 Act does not fully reflect our current approach to mental health services, such as the shift towards community-based services, the adoption of a recovery approach in service delivery and the importance of listening to people with lived and living experience of mental health services in the development of those services.
Ireland ratified the UN Convention on the Rights of Persons with Disabilities, CPRD, in February 2018, and the convention's rights-based approach to disability was considered when drafting the Bill. It is worth noting that, at the point of ratification, Ireland included a declaration to the effect that it believed involuntary admission and treatment for mental disorders to be in keeping with its understanding of the convention, subject to adequate legal safeguards being in place.
The Bill comprises seven Parts and 202 sections. This is a lengthy Bill containing a number of complex legal and ethical considerations. It deserved and needed a number of years to bring it to fruition. The progression of the Bill has been one of my key priorities during my time in office and I am truly delighted to present it today. Key to developing the Bill was the extensive consultation with key stakeholders. I thank each of the organisations and individuals involved for their input, including the HSE, the Mental Health Commission, the College of Psychiatrists of Ireland, Mental Health Reform, members of which are in the Gallery, the Ombudsman for Children, and key professional groups such as the Nursing and Midwifery Board of Ireland, the Irish Psychological Society and the Irish Association of Social Workers.
In 2021, I launched the public consultation, which received 100 submissions and helped inform the development of the Bill. I thank each person and group who submitted to that consultation, especially people who shared their own experiences and those of their loved ones during the drafting the Bill. I also express my sincere thanks to my colleagues across the Government, the members of the Oireachtas Sub-Committee on Mental Health and the committee secretariat for their work on the pre-legislative scrutiny process. Furthermore, I commend the Trojan work of the officials from the Attorney General’s office, the Office of the Parliamentary Counsel and my Department in readying the Bill for publication and for their continued work in preparing the Bill for Committee Stage.
In terms of the most significant provisions, I highlight the following. The Bill contains a revised approach to involuntary admission and detention, updated criteria for detention, additional safeguards to protect involuntarily admitted people and new consent to treatment provisions closer in alignment to the Assisted Decision-Making (Capacity) Acts. It expands the Mental Health Commission’s regulatory functions to include the regulation, registration, and inspection of all mental health services, including community residences and services and all community child and adolescent mental health services, CAMHS. It includes a new, stand-alone Part which relates solely to the inpatient care and treatment of children and, subject to certain limited exceptions, will allow 16- and 17-year-olds to consent to or refuse treatment on the same basis as consent and refusal for physical health.
A section-by-section summary of the Bill can be found in the accompanying explanatory memorandum. I will briefly outline some of the important features of each Part of the Bill.
Part 1 deals with the preliminary and general provisions of the Act, including the Short Title, definitions, regulations and legislation to be repealed on the commencement of the Act.
Section 2 of Part 1 provides for a number of changes to the definitions in the Bill. These include that references to "patient" have been replaced with "person" throughout the Bill; an updated, expanded definition of treatment, which includes ancillary tests; and a new definition of the term "mental disorder", which includes the decoupling of mental disorder from the criteria for detention. Furthermore, it will no longer be possible to involuntarily detain someone purely because they have a significant intellectual disability or a mental disorder that does not meet the criteria for detention.
Part 2, in sections 9 and 10, deals with the guiding principles to apply for adults and children, respectively. The guiding principles for adults will replace the existing best interests principle for adults and move towards a system in which people are encouraged and supported to make decisions about their care and treatment insofar as possible.
In the context of adults, the Bill will help shift our mental health legislation towards a greater focus on the autonomy of the person. The guiding principles broadly reflect the principles of the Mental Health (Amendment) Act 2018, a Private Members’ Bill introduced by our colleague, the Minister of State, Deputy James Browne, in the previous Dáil. Best interests will remain the primary consideration for children, in line with Article 3 of the UN Convention on the Rights of the Child.
Part 3 deals with involuntary admission and is split into four Chapters. These Chapters set out the involuntary application and admission process for the 2,666 registered inpatient beds in the 66 approved centres, which will be known as registered acute mental health centres under the new Bill. Chapter 1 of Part 3 sets out the involuntary admission process, including the criteria for detention and the three-step process for admission and renewal of these orders. Section 12 deals with criteria for involuntary admission and updates the criteria for involuntary admission. The criteria are one of the most important aspects of the Bill and a lot of time was spent getting the balance right between autonomy and treatment. The criteria in the Bill have changed from the general scheme. There are two reasons for this, namely, to ensure the criteria would not be set so high as to be inoperable and to ensure the Bill did not create a legal loophole where people could discharge themselves early if they refused all forms of treatment. To address these issues, the Bill keeps separate grounds for admission on risk grounds and treatment grounds. For detention on risk grounds, the admission must benefit the person’s condition or reduce the risk he or she poses. For detention on treatment grounds, there must be an immediate need for the person to receive treatment.
Sections 13 and 14 deal with applications for involuntary admission, providing for an expanded role for authorised officers to make an application for involuntary admission, in line with the current programme for Government. The Bill allows for applications to be made by authorised officers or, in a change from the general scheme, by family members or healthcare workers. The Bill no longer allows members of An Garda Síochána to make applications, although they may still take people into custody.
As noted in the Mental Health Commission’s annual report, there were 1,951 admission orders from the community in 2023, of which 32% were made by members of An Garda Síochána. This will no longer be possible under the new Bill. The HSE will be required to ensure availability of authorised officers across the country. In 2023, the HSE reported there were 211 staff members trained as authorised officers, up from 126 in 2022. Officials in my Department will work with the HSE to continue development in this regard ahead of commencement of this legislation. This Chapter also includes sections on Garda powers to take people into custody and the mandatory provision of information to people when they are detained.
Chapter 2 of Part 3 provides for the review of each involuntary admission under the Bill by an independent body. This is a vital safeguard when a person is deprived of his or her liberty. Each admission will be reviewed within 21 days by a mental health review board. These are currently known as tribunals. An independent examination of the person will be carried out by a consultant psychiatrist and a psychosocial report will be prepared by a nurse or an allied health professional before each review board meets.
There were 3,638 orders for mental health tribunal hearings in 2023, with approximately 48% going to hearing and approximately 52% of orders revoked prior to the hearing taking place. These tribunals, or review boards as they will be known under the new Bill, play a key role in vindicating the rights of people who are involuntarily admitted. Even though they relate to only a small percentage of people, they are some of the most vulnerable in our society who need our help and support. This Chapter also includes provisions on appealing a detention to the Circuit Court, transfer of people to other hospitals, including the Central Mental Hospital, discharges, absences and the power to detain a voluntarily admitted person for a limited period.
Chapter 3 of Part 3 relates to consent to treatment for involuntarily admitted persons. Under the existing Act, a person can only be treated without consent if he or she is incapable of doing so. The Assisted Decision-Making (Capacity) Act 2015 was commenced last year. It is important the capacity and decision-making rights of people detained under the Mental Health Act are aligned as closely as possible with the rights of the general public. The assessment of capacity in this Bill is aligned with the assessment of capacity in the Assisted Decision-Making (Capacity) Act 2015. If the person lacks capacity, an application can be made to the Circuit Court to put in place a decision-making order or representative. These supports are vital to vulnerable individuals who might otherwise struggle to make decisions for themselves.
The Bill provides for treatment to be given without consent in some circumstances. For example, while a capacity assessment process is under way or when awaiting a decision from the court, treatment can be given to people in limited circumstances, or, subject to strict criteria, an application can be made to the High Court for involuntary treatment.
Chapter 4 of Part 3 deals with restrictive practices for adults and sets out the robust legal framework in which restrictive practices can be applied. The 2001 Act has very limited safeguards in this regard, so this Bill brings many of the safeguards in the commission’s rules into primary legislation. Each use of seclusion or restraint must only be used as a method of last resort, for as short a duration as possible and proportionate to the level of risk. I note the positive downward trend in the use of restrictive practices in recent years and I expect to see this trend continue towards a zero-seclusion, zero-restraint policy, as advocated in Sharing the Vision.
Part 4 provides for a new, stand-alone Part related to the care and treatment of children in mental health services and is broken down into four Chapters. Chapter 1 of Part 4 sets out interpretation for this Part and interaction between the Mental Health Bill 2024 and the Child Care Act 1991. The Bill will continue to cross-reference the Child Care Act 1991. This will ensure children in court for mental health proceedings and childcare proceedings will continue to be treated equally and have access to the same safeguards.
Chapter 2 of Part 4 deals with admission of children to registered centres. It creates different categories of admission for children based on age and capacity. For example, children over 16 years of age can consent to their admission if they have the capacity to do so. For children under 16 or those over 16 who lack capacity, a parent or guardian can consent to their admission. Involuntary admission by way of application to the District Court will continue to be available where a parent or child refuses to consent to admission. This Chapter also provides for the criteria for involuntary admission; appeals to Circuit Court; the renewal and discharge of involuntary admission orders and power to detain a voluntarily admitted child who fulfils the criteria for involuntary admission; the powers of An Garda Síochána to take a child into custody; provision of information to children; and absences from a registered acute mental health centre.
Chapter 3 of Part 4 deals with consent to treatment for children, including obtaining consent for treatment from the child or a parent or guardian and related matters. It also provides for applications to be made to the High Court for involuntary treatment orders subject to strict criteria. It states that electroconvulsive therapy, ECT, cannot be administered to a child without approval of the High Court.
Chapter 4 of Part 4 sets out the circumstances for the limited use of restrictive practices for children, with all of the protections for adults applying to children as well as additional protections on notifying the role of parents and guardians of their use.
Part 5 deals with the Mental Health Commission and is broken down into six Chapters which deal with the continuance and functions of the commission, membership, functions, committees, meetings and remuneration of its board, the chief executive officer and his or her functions and the staff of the commission. This Part also sets out the responsibilities of the commission regarding accountability, including its strategic plan, annual business plan, annual reports, accountability of the chief executive officer to Oireachtas committees and prohibition of unauthorised disclosure of confidential information.
The final Chapter of Part 5 deals with the inspector, inspections and inquiries. It sets out the functions, powers and duties of the inspector and assistant inspectors and the provision of the chief inspector’s annual review and inspection reports.
Part 6 deals with the regulation of mental health services and is broken down into six Chapters which will be commenced on a phased basis. This Part provides for the commission to regulate, register and inspect all mental health services in the State, including all community mental health services. The regulation of these services will be introduced on a phased basis following enactment of this legislation. The Part sets out details related to the registration and renewal of registration for all services.
It also sets includes details on disciplinary actions, such as the suspension and revoking of registrations, or adding conditions to a service’s registration where it is non-compliant with the legislation or regulations. The Bill introduces compliance notices, which will allow the commission to improve services’ compliance with statutory obligations.
This Part also sets out provisions related to the various people in charge of services, provisions related to closure, cancellation of registration and taking charge of a service by the HSE.
Part 7 comprises 6 chapters setting out the various miscellaneous provisions of the Act, such as codes of practice, electronic signatures, data protection and regulation-of-care plans for adults and children in registered centres. It also provides the legal basis for record-keeping, provisions related to offences and penalties under the Bill and legal aid to involuntarily admitted people. This Part includes two amendments. The first is to section 23 of the Non-Fatal Offences Against the Person Act 1997. It amends that section to allow children aged 16 and 17 years of age to consent to treatment for mental health on the same basis as physical health. The second amendment is to sections 85(7) and 136 of the Assisted Decision-Making (Capacity) Act 2015 to remove the exclusion of certain involuntarily detained people from accessing the provisions of that Act.
Finally, Part 7 also allows people to select a nominated person to receive information on their behalf and with whom they can consult during their admission, such as with decisions regarding treatment or during discharge planning. This particular provision has the dual function of allowing a person to access advocacy supports, either personal or professional, and put in place a formalised pathway for family to be involved in a person’s care and treatment more directly, where the person concerned consents. With regard to costs to enact the Bill, my Department continues to work closely with relevant interdepartmental counterparts to ensure that both capital and current costs associated with this Bill are aligned to implementation timelines associated with the planned commencement of the Bill. It is recognised that any costs arising will be subject to prioritisation against other competing demands as part of the annual Estimates process for the relevant year. In the interim, my Department will continue to proactively engage with the HSE and the Mental Health Commission to assess the totality of the associated costs arising from the Bill.
This Bill has been many years in the making and I believe sets out a robust framework for provision of our mental health services in the years to come. I expect the Bill will be discussed in depth on Committee Stage and I look forward to debating amendments tabled by the Government and Opposition during that process. I believe it is the aim of all Deputies gathered here today to ensure this legislation is as comprehensive as possible. I look forward to working with all Oireachtas colleagues and all amendments tabled will be given due consideration.
This is vitally important legislation. It has the potential to transform many aspects of our mental health services to make it person-centred, human-rights based and lead to significant improvements to services through enhanced regulation. I look forward to an informed, positive and constructive debate on the Bill and I am happy to commend the Bill to the House.
