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Joint Sub-Committee on Mental Health debate -
Tuesday, 2 Nov 2021

General Scheme of the Mental Health (Amendment) Bill 2021: Department of Health

I welcome the officials from the Department of Health, who will brief the committee on the Bill. I welcome Mr. Seamus Hempenstall, principal officer, Ms Lorraine Doyle, higher executive officer, and Mr. James Kelly, assistant principal. Members and all in attendance are asked to exercise personal responsibility in protecting themselves and others from the risk of contracting Covid-19. They are strongly advised to practise good hand hygiene and to leave at least one vacant seat between themselves and others in attendance. They should always maintain an appropriate level of social distance during and after the meeting. Masks, preferably of medical grade, should be worn at all times during the meeting except when speaking. I ask for everyone's full co-operation in this regard.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise nor make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members that they are allowed to participate in this meeting only if they are physically located on the Leinster House complex. In this regard, I ask all members to confirm, prior to making their contribution to the meeting, that they are on the grounds of the Leinster House campus.

I invite Mr. Hempenstall to make his opening remarks.

Mr. Seamus Hempenstall

I thank the Chairman and the members of the committee for the invitation to attend the meeting. I am Seamus Hempenstall, principal officer in the mental health unit, and I am accompanied by Ms Doyle in person and Mr. Kelly online, both of whom work full time on the Bill.

The Mental Health Act 2001 was progressive for its time. Over the past two decades, however, there has been a fundamental shift in how we view mental health as a society and how we provide treatment to people with mental health conditions. This meant the operation of the Act needed to be reviewed and updated. The purpose of the general scheme is to move the Act towards empowering people accessing mental health services to make decisions about their own healthcare insofar as possible.

While it may be necessary to provide for involuntary detention in the future, the general scheme seeks to bring this practice in line with Ireland's obligations under the United Nations Convention on the Rights of Persons with Disabilities, CRPD, and Sharing the Vision, our national mental health policy.

The initial review began with a comprehensive public consultation and, following this, an expert review group was established. The group drew on expertise from the fields of psychiatry, law and people with lived experience of mental health services. The group published its report in 2015 and included 165 recommendations, most of which related to legislative changes. The Department has been progressing a review of the Act over the past number of years, which has included extensive consultation with key stakeholders, including the Mental Health Commission and the HSE, as well as a public consultation earlier this year during which 100 submissions were received. The review of the Act also considered Ireland's commitments under the UN CRPD, the European Convention on Human Rights and the UN Convention on the Rights of the Child as well as more recent domestic legislation, particularly the Assisted Decision-Making (Capacity) Act 2015 and the Mental Health (Amendment) Act 2018.

There are nearly 130 heads in the general scheme and the proposed amendments touch on every aspect of the Act. The briefing documents provided to the committee set out an overview of the proposed changes to each section. I will highlight some of the most significant changes. The general scheme replaces the existing paternalistic best-interests principle in section 4 with a set of guiding principles for adults and children. All people will be presumed to have capacity in line with the 2015 capacity Act and, for those who lack capacity, these guiding principles set out how decisions are made about their care and treatment. For children, best interests will continue to be the primary consideration in line with commitments under the UN Convention on the Rights of the Child.

The process of involuntary detention has been updated. In line with Sharing the Vision and our commitments under the UN CRPD, involuntary detention should only be used as a last resort. While under the existing Act detention can take place on the basis of risk or treatment, the Bill will ensure that treatment is part of the basis for all cases of involuntary detention. Furthermore, the Bill will provide for all applications for involuntary detention to be made by authorised officers.

The approach to consent to treatment has been completely revised to take account of a person's capacity in line with the 2015 capacity Act, moving towards a model where each individual is more involved as a co-decision maker in his or her care and treatment. The limited circumstances where treatment without consent can be given have been clearly defined in the general scheme.

The Mental Health Commission's regulatory remit will be extended beyond approved centres to encompass all residential mental health facilities and mental health services. In future, all mental health facilities and services will, therefore, be registered, regulated and inspected by the commission.

A new Part has been introduced setting out the process of admission and consent to treatment for children, introducing capacity and consent for young people and mirroring safeguards for adults under the Act for children, such as the right to information. The Bill will provide for the presumption of capacity for all young people aged 16 and 17 years to consent to mental health treatment. This will bring parity between mental health and physical health on consent, as the Non-Fatal Offences against the Person Act provides for people aged 16 and 17 years to consent to medical treatment.

The Minister for Health, Deputy Donnelly, the Minister of State, Deputy Butler, and the Department are keen to see the Bill introduced to the Oireachtas as soon as possible. We will continue to work with the Office of the Parliamentary Counsel, OPC, over the coming months to prepare the Bill. We look forward to continuing to work with this committee as it carries out pre-legislative scrutiny, PLS. I thank committee members for their time and I am happy to take questions.

We will start with Senator Conway.

I ask Deputy Ward to go ahead as I have just arrived.

I will be very brief. I do not usually talk about personal matters but I got my wisdom teeth out and I am very sore at the moment. I am here on a listening brief more than anything else. I appreciate the officials coming in. The reason I am here is that I see the importance of the committee getting this kind of grounding in the Mental Health Act. It is very important to get those foundations in place.

I have one question. I welcome the fundamental shift there has been in how we, as a society, see mental health issues now compared with the past.

There was a dark age in the past when people with mental health issues were not treated as well as they should have been. People like that involuntarily being taken out of society seemed to be the norm rather than the exception. We need modern and up-to-date legislation on that. Our briefing note states that the Mental Health Commission will be asked to inspect all mental health facilities. What facilities will that include and what facilities were not being inspected previously?

Mr. Seamus Hempenstall

The Mental Health Commission inspects approved centres only. There are around 60 of those and the commission has a programme of inspection to visit all of those annually. It is proposed that once the Act has been brought in, the Mental Health Commission will have powers to inspect all other kinds of mental health facilities such as day services and other types of residences. I do not know the numbers offhand but perhaps my colleague, Mr. Kelly, can give us more detail on that.

Mr. James Kelly

At the moment, only inpatient facilities are inspected by the Mental Health Commission. It can inspect anywhere it chooses to but it can only regulate and register inpatient facilities. Under the updated Act, it will be able to inspect, enter and register day hospitals, 24-hour residences that are nurse-led, step-down facilities and, eventually, all services, including the likes of Jigsaw and any counselling services that provide mental health services on behalf of the State. The scope of how far that will go is a discussion we will have with the Mental Health Commission as those powers come into force.

I know the witnesses cannot answer this question but the Mental Health Commission will need more resources and funding in order to carry out those inspections. It is a big undertaking to do that so that is something we will have to work on. I refer to the provision for 16 and 17-year-olds to refuse or consent to their own mental health treatment. What is the difference between what is provided for in the heads of Bill and what was in place previously?

Mr. Seamus Hempenstall

It is introducing consent for those in that age group in common with the rights they have in relation to physical treatment. It is creating a parity of esteem between those two sides.

It provides that 16 and 17-year-olds will have more autonomy over their mental health and mental health treatment. Is that correct?

Mr. Seamus Hempenstall

Exactly.

I thank the witnesses. I usually have a lot more to say.

I thank the witnesses for attending. It is much appreciated. I also congratulate and thank them for the work they do on behalf of society.

I return to the point Deputy Ward raised about funding. It is a regular occurrence that legislation passed by these Houses in good faith and for good reason, namely, to improve people's lives, does not get acted on to the level we would expect. Has the Department done costings and agreed budgets?

On the timeline for passing this legislation, is there a particular time by which we can expect inspections to take place and the various sections of the Bill to be implemented? Will some elements be implemented and others not implemented? Is there a commitment or a timeline set out for the implementation of the legislation and a budgetary framework to ensure that when it is enacted, the Mental Health Commission will exercise these powers and be given real teeth?

Mr. Seamus Hempenstall

I understand the question. To give a short answer, we do not have a specific plan yet because we are at an early stage in the drafting of the legislation. We have to wait for it to be passed.

We have a very good relationship with the commission. It has the resources it needs to conduct the current programme of inspections. I would not envisage that we would have a situation where we would give the Mental Health Commission a series of responsibilities without taking into account the funding and resources it would need. I would rather not tempt fate and say this is what we plan to do and when we plan to do it.

Sure, but have the costings been done even on an indicative basis? The legislation will be framed to give the commission the powers it clearly needs. I imagine there must be even an aspirational plan.

Mr. Seamus Hempenstall

What I could do for the Senator is to get figures on the budget the commission has at the moment and the number of inspections it does in order to see if we can work something out there. The commission has a programme of inspections based on a range of criteria. I presume it knows how long it takes for each inspection, and it has resources assigned to it. Going forward, I would have thought that as we extend the commission's remit based on the legislation and regulations that there may well be different formats of investigation or inspection depending on the type of facility. Perhaps I am splitting hairs here, but I do not think it would be fair to say that based on this costing, this is how much we envisage that another thing would cost in the future.

That is reasonable. In terms of the knowledge of the legislation, are there any concerns about what is omitted from it? Does it address all of the concerns and aspirations of the Department? Is Mr. Hempenstall concerned about any element of the legislation? The Bill will be debated and, potentially, amended? Is there anything Mr. Hempenstall wants to share with us that we should be trying to police as best we can as legislators?

Mr. Seamus Hempenstall

I do not have anything in particular. I will invite Mr. Kelly to contribute in a moment. No legislation is ever complete. We fully expect to have unknowns and knowns arise as we go forward in terms of drafting. That is the nature of the beast. As a Department, we are happy. It has been a long process. We have covered an awful lot of bases in the Bill and it does represent a significant advance on what we had before. I cannot say we have covered everything in absolute detail, but I am confident that with the input from the PLS in the committee, the consultation we have done and will be doing, and with the work of the OPC and the Attorney General's office, we have a good piece of legislation to bring before the Oireachtas and then we will have Committee Stage, at which point any amendments can be debated. I do not mean to sound as if I am trying to be smart but we are looking forward to the process because it is only through those questions and answers that we get to a decent piece of legislation. Perhaps Mr. Kelly would like to add something.

Mr. James Kelly

Yes. The original drafting of the general scheme was based on a 2015 Government decision, which was to give effect to those 165 recommendations of the expert group. Time has moved on since 2015 as well. In 2018, we ran it by the UN Convention on the Rights of Persons with Disabilities, UNCRPD. The Assisted Decision-Making (Capacity) Act was passed in 2015 as well. What we have been trying to do with this piece of legislation it to take all of the recommendations from the expert group on board and also to be aware of the significant developments that have happened in the field since then. Over the past two to two and a half years, we have also had a lot of consultation with some of the key stakeholders and we have been building relationships with organisations in the NGO sector and with professional groupings, the College of Psychiatrists of Ireland and the Mental Health Commission. As Mr. Hempenstall said, we are never going to catch everything in one piece of legislation or at least not with the first stab, but what it does reflect is the broad-based consultation that we have carried on in recent years. We are happy with the shape the Bill is in right now but I am sure that something will come up during PLS or on Committee Stage that will give us a further opportunity to consider.

That is great. I thank Mr. Kelly very much.

I invite Senator Hoey to come in at this point.

I thank the witnesses for their presentations. I had to leave the meeting for a couple of seconds so I apologise if any of my questions have been already asked. In regard to the expert group not making a recommendation for an independent route for the making of a complaint, is there a reason for that? Mental Health Reform is firm in its opinion that there should be an independent route for making complaints to ensure parity between mental and physical health. Will the opportunity be taken to look at that again?

Mr. Seamus Hempenstall

I cannot say that something would never be looked at again. There are sections within the draft general scheme - at least three of them - relating to the provision of information to people. They provide for people to receive information on complaints procedures in whatever approved inpatient facility they are in. Under the draft general scheme, the remit of the Inspector of Mental Health Services has been expanded to include 24-hour community residential facilities and services. There is inspection already provided for and the general scheme provides for additional expansion. The Office of the Ombudsman has a role in investigating complaints in the HSE as well. That is where we are on that. Mr. Kelly might like to add something.

Mr. James Kelly

We have had a back and forth engagement on this with our colleagues in Mental Health Reform. Our discussions have been pretty productive to date. It is an ongoing conversation in developing the final draft of the Bill.

On the issue of parity of esteem, the Ombudsman is open to anyone who accesses services through the HSE. Any person who wishes to make a complaint or have a complaint against the HSE investigated can do so regardless of whether it is for a disability service, mental health service or physical health service. At the moment, that is open to anyone who accesses services through the HSE on an equal basis regardless of what service is being accessed.

On mental health, the Inspector of Mental Health Services, which sits within the Mental Health Commission, has a significant role under the Act in terms of its functions and in meeting with anyone in a mental health facility who, during the course of an inspection, asks to meet with it. It is not exactly an independent complaints mechanism but, taken together, the inspector and the Office of the Ombudsman already perform a function similar to that which an independent complaints mechanism might perform.

As stated by Mr. Hempenstall, the conversation channel remains open. We met recently with Mental Health Reform and we will continue to meet with it on the development of the draft Bill. I am sure it will be a discussion that we will continue to have in the future.

This is something that, probably, other mental health organisations would feel strongly about. Mr. Kelly stated that it is in effect the same elsewhere but if we are drafting legislation, why not make it not just in effect the same but actually the same? I am sure we will come across this issue again as we move along.

I am interested in hearing what engagement took place with the Department of Children, Equality, Disability, Integration and Youth in terms of this legislation, in particular how it interacts with the Assisted Decision-Making (Capacity) Act 2015. Has the Department of Children, Equality, Disability, Integration and Youth had sight of the draft Bill given the crossover with the Assisted Decision-Making (Capacity) Act 2015? I am sure there are other areas in respect of which there will also be a crossover. Has the Department of Health been working with the Department of Children, Equality, Disability, Integration and Youth on this legislation?

Mr. James Kelly

We worked initially with the former Department of Children and Youth Affairs on Part 8, which is related to children. At the moment, most of the revisions related to children are contained within section 25 of the existing Act. We are expanding that out in Part 8 to give its own stand-alone section, make clear what the protections for children are and set those out in statute.

We engaged with the Department of Children and Youth Affairs early in the process. In December 2019, I think, we gave that Department the initial draft of Part 8 and provisions relating to children elsewhere. We had a good working relationship with the Department over the year and a half that it took for us to get from that point to the point of publication.

When the responsibilities for the Assisted Decision-Making (Capacity) Act were transferred from the Department of Justice to the Department of Children, Equality, Disability, Integration and Youth we worked with the latter Department on the 2015 Act. We are very keen to make sure that the Mental Health Act and the Assisted Decision-Making (Capacity) Act are aligned correctly. From our discussions with the Office of the Attorney General, I know it is keen to ensure we get this right as well. This matter has been very much at the forefront of our minds. We are very lucky to have had a fruitful engagement with that Department on both the children and capacity sides over the past 18 months or so.

I have never been through a service but I understand that the Sharing the Vision policy moves away from the use of restraints and so on. Does the inclusion of these sorts of measures in this legislation conflict with Sharing the Vision? Obviously, restraints are seen as a last resort. If we strive to have the best and broadest mental health legislation, should there not be zero restraints? The legislation and the Sharing the Vision policy do not seem to be aligned. Again, all of these matters will be teased out as we go along.

Mr. James Kelly

Recommendation No. 92 in the Sharing the Vision policy refers to "zero restraint, zero seclusion" and relates to a review of the Act. The policy and the legislation are, therefore, very much entwined with each other. Sharing the Vision is a ten-year strategy and nine years of it remain. We have included the parts on restrictive practices and tried to bring in some additional safeguards. There is an understanding that we want to minimise restraint as much as possible, to the point where we will no longer need it. It is a stepping down process, however, and additional resources, training and so forth must be put into place in approved centres to ensure that all staff and residents feel safe. Over the lifetime of Sharing the Vision, we will move towards a "zero restraint, zero seclusion" policy but, for the interim, it is important to include safeguards. As the Senator said, we have to provide for last-resort scenarios. While we are heading towards the policy, we are not there yet so we must provide for these at some level. What we are trying to do is ensure there are safeguards in place while it is still permitted.

I thank Mr. Kelly for answering my queries.

I have concerns about a couple of issues, which the committee will have to consider. Mr. Hempenstall stated the Minister for Health, Deputy Donnelly, the Minister of State, Deputy Butler, and the Department are keen to see the Bill introduced to the Oireachtas as soon as possible. How can the committee undertake pre-legislative scrutiny when we do not have the legislation in front of us? It is going to be a difficult job for us. Will the Office of the Parliamentary Counsel liaise with the clerk to the committee? Will Mr. Hempenstall feed back our concerns? What is the timeframe for the legislation? Mr. Hempenstall used the term "as soon as possible". Given the delay in amending and commencing the Assisted Decision-Making (Capacity) Act 2015, I am worried that we are being rushed into this pre-legislative scrutiny when we only have the heads of a Bill.

Mr. Seamus Hempenstall

I do not think there is any impetus behind rushing the committee into anything. What we have is a fairly comprehensive general scheme in which many of the legislative provisions are already written up. It is with the Office of the Attorney General at the moment. I cannot say I have done pre-legislative scrutiny before but we would not engage in this process without trying to take into account what the committee says.

We have had the consultation and a lot of time has gone by. There was another round of top-up consultation. I would expect that, as part of this process, if the subcommittee raised concerns we would try to take them into account in conjunction with the drafting process being undertaken by the Attorney General. As I said, things will always arise that we did not foresee. There may well be drafting issues associated with particular provisions too. It is a kind of living process. What I tried to get across in my opening statement was that the Minister of State, Deputy Butler, and the Minister, Deputy Donnelly, want to move the legislation forward as quickly as possible but not in the sense of guillotining any debate. It is a huge piece of legislation with significant pieces of policy at the top and a lot of technical things at the bottom. They are all important and they all need to get done. It is an interesting piece of legislation from that perspective. There is momentum behind getting it done now, but that is not to shorten any process of consideration.

Earlier, the Senator asked about costings and I said I did not have any. I see from my note that the Mental Health Commission did supply us with its own estimates and figures. I will send the information that we have from the commission to the Senator. The Department has not agreed any figures or plans. That part of my answer is right.

When does Mr. Hempenstall think we will have the Bill? I have an idea in my head and maybe I am wrong. It seems to me that the subcommittee is bringing in witnesses to talk about heads of Bill but they do not even know what the Bill is. We are not sure what the Bill is. That detail is very important if we are going to do pre-legislative scrutiny. Is there any idea when we will see the full Bill, when it will be done and dusted?

Mr. Seamus Hempenstall

No, but I think in fairness the subcommittee has a fairly comprehensive document with a general scheme. I would not envisage our moving significantly beyond any of the major policy issues or the technical things either. I do not think it is valid to say that we do not know how it is. There is a fairly significant briefing document to go along with the heads. If the subcommittee has queries about particular aspects, that is what this process is for. I know Mr. Kelly has been liaising with the clerk as well on how long the pre-legislative scrutiny process with take and that will feed into the timetable for doing the Bill. The timeframe is not entirely within our gift. There are 15 other Departments with legislation and who knows what 2022 will bring? I wanted to convey that there is energy and momentum behind this. We want to move ahead and get it done as quickly as reasonably possible.

Did Deputy Kenny have any questions?

Most of the questions have been asked so I do not want to be repetitive. Senator Hoey mentioned the Assisted Decision-Making (Capacity) Act 2015. That passed through the Oireachtas in 2015, six years ago, and it has not been implemented. What is the knock-on effect of that? If it was implemented, what effect would it have on this legislation? This might have been answered but I would like it clarified for myself.

Mr. Seamus Hempenstall

I will ask Mr. Kelly to answer this.

Mr. James Kelly

I understand that the rest of the and the Assisted Decision-Making (Capacity) Act 2015 is due to be fully commenced next year, I think in June. Had the 2015 Act been fully commenced any time before now it would not have a direct impact on the Mental Health Act prior to 2018 because many of the provisions of the 2015 Act do not apply to people receiving treatment under the Mental Health Act. I believe that was written into that Act at the time because the review of the Mental Health Act had already begun and they wanted the process to continue, so that down the line the two Acts would dovetail and align when the updated Mental Health Act came in.

We have aligned a lot of our understanding with what the capacity and the decision-making supports are - all of the things contained in the 2015 Act. We have aligned those in the updated Mental Health Act or that is what we hope to do. Fully commencing the Act will rely on a fully commenced capacity Act but I expect this to happen next year and I hope that depending on how the legislative process goes, sections of our Act would begin to be commenced in 2023. Hopefully, the timelines should add up. That is certainly what we are working towards.

A lot of work has gone into this and there are a lot of substantial changes. I like the extension of who is going to police all of this and the extra powers in it. The witnesses spoke about capacity within the Act but we also need capacity within the system to complement the Act. I have not gone through all these amendments, although I have gone through an awful lot of them. The board is being given a lot more power and there are fines so it will push people into a bit of responsibility. I got down to page 193 this morning but I will read it over and over again. In respect of protected disclosures and giving people power within the system, that must be addressed.

If this Government falls within 12 or 24 months, does this work fall as well? That is my biggest fear. It has taken such a long time to get to this and there are a lot of very strong and positive recommendations in it. It is grand to have them all down on paper but it is about how we get the urgency to get them enacted. A Bill can be passed in these Houses but, unfortunately, it can sit on the shelf for a while before anything happens to it. My only concern is how we move it on and get the recommendations in place. At the same time, do we need to do something running parallel to this to complement the services that will be needed because this committee is well aware of it? We talk about improvements in mental health services here yet in my home town, a mental health centre is being closed. Pardon the pun but this is lunacy when we are in the middle of a pandemic. A centre that worked perfectly and never had a case of Covid or a suicide must close because having decided not to put money into it in the past number of years, the HSE is now saying the building is at fault and is trying to move patients out of it. We are here trying to improve mental health services and responsibilities. The Bill talks about the responsibilities of proprietors. I welcome anything positive but my two biggest fears concern whether it moves on swiftly enough to get the Bill enacted. I would be optimistic. The two Ministers support us. Normally, one meets a lot of opposition with the Department of Justice. It is the one that seems to slow down mental health stuff a lot. I would be very anxious to move this on but if something must run in parallel to complement the services, will it be enough? The other point concerns electro-convulsive therapy, ECT. I have not reached it yet but I am worried about it. Must it exist in this country in 2021? However, that is a question for another day.

Mr. Seamus Hempenstall

The Deputy asked questions about protected disclosures and ECT. I might ask Mr. Kelly to address those questions because they are substantive issues relating to the legislation. All I can say is that I am not thinking about a change of Government. We are just trying to get on with the job of moving this forward as quickly as we reasonably can taking into account the Chairman's views in terms of pre-legislative scrutiny.

In relation to the centre to which the Deputy referred, that is an operational decision made by the HSE. In my view, the legislation is the framework and the operations are the muscles to get the whole thing going. The two are related but they are separate.

It is positive that the remit of the Mental Health Commission will be expanded. Mental health services are an important part of the health service and they should be regulated just like other health services. The improvement of our mental health services under Sharing the Vision is proceeding as quickly as possible. As Mr. Kelly said, we are only in the first year but my colleagues in the unit are working very hard on that with their colleagues in the HSE. I do not need to rehearse the fact that we had another record budget for mental health services. The impetus and momentum is there and for my own part, working with the Minister of State, Deputy Butler, I can say that the energy and enthusiasm are genuine and substantive. I will invite Mr. Kelly to respond now to the points raised.

Mr. James Kelly

Reference was made to governance and the board, which is dealt with in Part 3 of the legislation. What we were trying to do with that was to bring the governance of the commission and the related corporate aspects in line with good governance in other public sector bodies. A lot of improvements have been made over the last 20 years and we tried to mirror those in that Part. This would include protected disclosures. I do not know if we have actually included an explicit reference to them but anyone making a protected disclosure relating to a public sector body would be protected. Staff in the commission would be protected as would staff in the HSE or a Department. That said, we can look at this further if the committee believes it is something that requires more thought in the context of the final Bill.

Electroconvulsive therapy or ECT has been retained in the Act and we have updated the measures related to it. My understanding is that ECT in 2021 is not the ECT that we know from popular culture, as in the film "One Flew Over the Cuckoo's Nest". It has developed hugely in the intervening 50 years and is now regarded as quite an effective treatment for certain types of mental health conditions. We are retaining it because it does have some clinical value. The committee could invite clinicians or representative bodies for health professionals who would be more qualified to speak on this but it is my understanding that ECT is an effective treatment and that is why we have decided to retain it.

I thank the witnesses for their responses. I just want to put on the record that the protected disclosures system is not just weak but is absolutely flat. Unfortunately, in my experience, those who have made protected disclosures within the mental health system have been penalised. One issue in particular has never been properly resolved. The individual ticked all of the boxes and went all the way up through the system. The protected disclosure eventually reached a Minister but it was dismissed. I wanted to flag this issue because while there is excellent work going on in the mental health services, there is also wrongdoing and when people come out and tell the truth, they are not being protected and the issues are not being resolved.

Deputy Hourigan is next.

I thank everyone for their contributions today. I cannot think of any more important work for us this year than the oversight of this legislation. It is an incredibly important piece of work and I thank our witnesses for taking the time to bring us through the general scheme. I am in the same position as Deputy Buckley in terms of only starting this conversation. It will take a lot of granular work to get through all of this because there is a lot of information here. In that context, I will try to use my time to contextualise some of the issues for myself.

In the documentation provided and in some of the briefings we had previously, there is some discussion on this issue but from the witnesses' perspective, what are the other key pieces of legislation with which this legislation will interact?

What else should we reference when we debate this legislation?

Mr. James Kelly

I might answer that question. The Assisted Decision-Making (Capacity) Act 2015 is probably that which is most influential on our legislation. Unfortunately, it is very complex and I struggle to get my head around it sometimes. The provisions in the 2015 Act are probably the most important to the update of the Mental Health Act and to the idea of co-decision making and empowering people accessing mental health services.

Another important Act is the Child Care Act 1991. In the existing Mental Health Act, section 25, as I mentioned, deals mainly with the treatment of children and references the Child Care Act, which I understand is being reviewed by the Department of Children, Equality, Disability, Integration and Youth. One recommendation of the expert group was to move all the cross-references to the Child Care Act into the Mental Health Act in order that if someone is reading the latter Act, he or she will not have to cross-reference it against other Acts and it will be as simple as legislation can be in that regard. We have included those provisions in the Bill but the Child Care Act is always useful to refer back to.

Finally, there is some reference in the Act to the Criminal Law (Insanity) Act 2006, which came from the then Department of Justice, Equality and Law Reform. That is another Act it would be good to be familiar with.

That is helpful and I will return to the criminal law aspect. In respect of the domestic legislation, does the Department envisage that on the conclusion of this work, there will be amendments to the Acts Mr. Kelly mentioned?

Mr. James Kelly

Yes, the Department of Children, Equality, Disability, Integration and Youth is progressing a draft general scheme to amend the Assisted Decision-Making (Capacity) Act. There are certain provisions, between the two Acts, that will have to be amended in either our amending Bill or its amending Bill, although that Department hopes to enact and commence its legislation sooner than we do. There is ongoing conversation between the two Departments as to which is the better vehicle and which is the better timeframe to get those amendments in. There will be a number of amendments to the capacity Act that will have to come from either that Department’s side or our side.

That is an important point because it means we will need to keep an eye on that legislation too.

Mr. James Kelly

Yes.

My next question relates to a similar matter but does not concern domestic legislation. I acknowledge there are many references to human rights and international human rights law. What are the key international or supranational agreements we should consider?

Mr. James Kelly

The UN Convention on the Rights of Persons with Disabilities, which we ratified in 2018, is probably the main one, as well as the UN Convention on the Rights of the Child. They loomed large in our minds as we drafted the heads. The European Convention on Human Rights is another document we referred to, and there are a couple of others. It might be easier for me to revisit the list I have, which I can send on to the committee secretariat for circulation, to ensure I do not miss anything.

That would be very helpful. To return to the criminal law aspect, I have been reading through the documentation but Mr. Kelly might flag where we are introducing issues that relate more specifically to the justice area and include aspects of criminal law or criminal accountability. The Department may wish to send further detail to the committee later but Mr. Kelly might just flag a few areas for us now. Where are we introducing or amending issues that deal with criminality?

Mr. James Kelly

We are kind of staying away from that as a concept. Nevertheless, if someone who is detained in the Central Mental Hospital for a fixed custodial term under the Criminal Law (Insanity) Act continues to need treatment as he or she is coming to the end of that term, that is, if he or she is not well enough to be let out into the community, there is currently no direct path of access for that person to be admitted to the Central Mental Hospital under the Mental Health Act.

It is necessary to be transferred to another approved centre and be transferred back. It can be just a little messy. We are providing for direct entry for people who continue to need treatment and are coming to the end of their term, so that they will be able to be assessed like anyone else under the Mental Health Act, and they will be able to be directly admitted to the Central Mental Hospital as a person under the Mental Health Act rather than under the Criminal Law (Insanity) Act. That is one of the big changes. It is not changing anything fundamental but makes the path into the Central Mental Hospital a bit easier for those people, especially in what might be a time of transition and stress. We are also looking at setting out specific regulations around designated centres. The only designated centre in the country at the moment is the Central Mental Hospital. We are setting out specific standards and regulations for those centres.

That was going to be my next question. Are any of the issues around criminal liability in respect of proprietors? For example, if somebody engaged with the mental health tribunals who should not have been there and was committing fraud, are there any criminal aspects to do with placing criminal liability on a person in management, administration or oversight? It is hard to phrase this nicely, but if such a person does not do the right thing, is there any criminal liability introduced there?

Mr. James Kelly

Yes. We have included additional safeguards so that the registered proprietor or the person in charge of a centre could be liable to be guilty of a crime and be liable to a custodial sentence or a fine if found to be guilty. Those have already existed in relation to seclusion and restraint but we are expanding it so that a person running an approved centre and it is not registered with the Mental Health Commission that person will be guilty of a crime for that reason. We have included some additional safeguards to protect against fraudulent-----

That is fraudulent registrations or fraudulent operation. Is there nothing around neglect? We have legislation around neglect but it can be difficult to action. Is there anything in that arena?

Mr. James Kelly

I will have to come back to the Deputy on that. I would have thought we had adequately covered it but let me come back on that with a more complete answer.

That is fine. I have many more questions if I can continue, Chair.

Yes go ahead.

I have some general questions, but I will use specific examples to explain what I am asking. One of the areas I read in detail was on involuntary admission which I know will garner more attention that other aspects. Some issues it raised for me are more general questions. One of the issues around involuntary admission is how long it lasts, how one is directed to it, and whether it is possible to care for people within community settings. I am also on the health committee which constantly tries to move towards Sláintecare and to ensure that community setting is stitched into everything. I can see the attempt to stitch that community approach into this legislation. Is the implementation of Sláintecare and access to suitable community settings of concern in the drafting of this legislation?

Mr. James Kelly

One thing we were very cognisant of was Sharing the Vision which is the national mental health policy. It is aligned with Sláintecare in that it is about providing the right care in the right environment at the right time and moving as much as possible towards community-based care and supporting people with mental health difficulties to live independent lives.

There is also an understanding that there will always be a need to provide for involuntary detention and inpatient treatment. Sharing the Vision is a ten-year strategy. Over the lifetime of that strategy, this updated Bill will become an Act and will be commenced so hopefully they will complement each other as we move towards empowering people's access to services in the community. That can be seen in section 9, which is about making an application for involuntary detention. In line with the expert group recommendations we have limited the group of people who can make an application to authorised officers, which are already a prescribed grade within the HSE. The idea is that the authorised officer would have a more holistic view of the person, such as where he or she lives and what supports are available to that person in the community. If the officer believes that none of those supports are adequate or that the person needs more acute care, he or she could make the application. At every stage before the person is brought to the approved centre, consideration will be given to what other supports are available to him or her, and if there is family support, consideration will be given to what is available there and what the capacity is. Involuntary detention would really only happen as a last resort and we have explicitly said that in section 9. When a person is resident in an approved centre, he or she should be there for as short a time as possible. When that person's condition starts to improve to the extent that he or she can be discharged then he or she should be and there should be discharge planning around where the person is going, whether her or she is going back to his or her family and that kind of thing. It is baked into the general scheme.

I have a follow-up question, although it may have been answered already. Does the changing nature of the structures within the health service pose a challenge when writing this legislation as it relates to governance? We have the Central Mental Hospital and a whole spectrum of service providers across the country right now. We are hopefully going through a period of change and we are also trying to develop this legislation but the governance structures might be changing as we go through. Does that present a challenge for the Department? It is so important to get that right when appointing people or gathering a body to make decisions around people's lives. Does that pose a particular challenge and how are the witnesses going to navigate that?

Mr. James Kelly

We have divided the mental health services into three tiers or sections. One is the approved centres, which have always been governed by the Mental Health Act, and we are developing that in the updated Act. Then there are the 24-hour community residences, which include nurse-led step-down facilities, hospitals and things like that, and all mental health services eventually. We have not included any references to, let us say, community mental health teams, which are a big part of it as well. There are certain structures that can be captured without needing to be in the legislation itself. If someone is accessing a mental health service as a day patient, the multidisciplinary team that is responsible for his or her care does not necessarily need to be explicitly named in the Act to know that it is still part of that care team and part of making decisions about that person's treatment.

The main thing we need to get right with the updated Act is involuntary detention. As it is such a serious thing to do to someone, we have to make sure there are appropriate structures in place and that the person making the decision as to whether someone should or should not be involuntarily detained has the adequate information about the person themselves, about what the services are in the community and that the decision is reviewed. Admission orders for involuntary detention only last two weeks now rather than three weeks. It is about shortening those cases of involuntary detention where possible and ensuring that the reviews are more regular than they are now and that any decision to involuntarily detain someone is not taken lightly.

What role does a mental health tribunal play?

Mr. James Kelly

A mental health tribunal is made up of a psychiatrist, a legal professional and a member of the community or layperson. When one is involuntarily detained an admission order is made and the tribunal will review the order after 21 days but it is proposed to reduce the time to 14 days. A person who is involuntarily detained will be assessed by an independent consultant psychiatrist. So there will be another examination of the person and a report will be given to the tribunal. Then the tribunal will meet the person and the person's treating psychiatrist. After the tribunal reviews all of the documentation and evidence it will either affirm the order, which means affirm that the person needed to be involuntarily detained and suffers from a mental disorder, as it is phrased under the Act, or the order is refused and the person is released. It is just to ensure that the person's detention is regularly reviewed.

Who has oversight of the staffing of a health tribunal?

Mr. James Kelly

The Mental Health Commission, as a regulator. The commission has a dual function as regulator of the mental health services. The commission inspects and registers every approved centre and it has a very important function in selecting people for a tribunal. Each tribunal is independent so these people are not staff members of the commission but are contracted to carry out this function.

Will the commission undertake work on the suitability of lay people?

Mr. James Kelly

Yes. The commission would be the best placed to answer the question. It has a vigorous interview process and regularly provides training. The commission takes that duty quite seriously.

I echo what was said by Deputy Buckley. Does this legislation concern itself with best practice for residential mental health facilities? Are there guidelines for transitioning between services? We have heard in the last few months when this matter arose that everybody has a unique care plan. Therefore, there are no guidelines and no references to best practice so that proprietors can do anything.

Mr. James Kelly

The Act refers to care plans front and centre. There is an understanding that care plans are very important to the person accessing mental health services. Access to a care plan, regular reviews and having an input are very empowering for the persons concerned and important for their path to recovery. We have included a ruling on care plans in the general scheme. The ruling is based on 2006 regulations, under the Act. We may have to update the ruling depending on the outcome of pre-legislative scrutiny and as we continue to receive feedback on the published heads. We want to make sure that care plans are filled out, reviewed, that the person is involved in making his or her care plan and that a care plan is followed because there is no point in making a care plan but not following it.

The Deputy asked whether there should be a template. I do not know if it is necessary for us to put a template into the Act.

I did not suggest that there should be a template. Are proprietors given guidelines? Is it envisaged that proprietors would receive guidelines or information on best practice for all of the people who reside in a particular placement and what that looks like?

Otherwise it seems to be devolved, almost nebulous and difficult for proprietors to get a sense of what good practice would look like. If everything is based on an individual care plan, where is the more directed information for proprietors showing the basics?

Mr. James Kelly

That will probably come down to the implementation of the updated Act. The expert group recommended that a post-enactment pre-commencement implementation group be set up among the commission, HSE and Department to work out the kinks with regard to what the proprietors need to transition to this new way of working and treating people. This will be an opportunity to foster good practice, share it among different types of facilities and have that education piece. It is probably not for the proposed Bill to be prescriptive on that. It can come afterwards and it can be baked it into the education and training on what the updated Act means for proprietors, healthcare professionals and patients.

I thank the officials for what has been a very good meeting. The point was made that the committee has a good chunk of work ahead of us.

An issue that was not raised is the need for 24-7 emergency access to mental health services. Mental health issues do not only arise between 9 a.m. and 5 p.m. and they do not take a break at weekends. There is a lack of 24-7 emergency mental health provision. When people feel mentally unwell accident and emergency departments are sometimes the only place they can turn to for any sort of help. We have the testimonies of people who were not listened to or treated well when they accessed an accident and emergency department. Many left without getting treatment and those who did see somebody often experienced a lack of follow-up. There is a real gap in 24-7 emergency mental healthcare and, unfortunately, people have died as a result of that gap.

Submissions and recommendations were made to the expert group in relation to treatment prior to admission in an accident and emergency department. On the word "prior", how far back does that go in relation to a person's treatment? I know people who presented to an accident and emergency department numerous times and were not admitted. What was the basis of these submissions? More important, what recommendations did they make?

Mr. James Kelly

I can speak to that. The section Deputy Ward is looking for in the heads is section 13B. That might provide a bit of clarity on our position on that. What that section tries to do is say is that if someone is in the process of being involuntarily detained, for example, being transferred to an approved centre, and during the course of that transfer the doctor becomes aware that the person might need medical attention for a physical issue, that person would be transferred to an accident and emergency department to receive physical treatment for the ailment. Then, after the patient recovers sufficiently to be transferred to the approved centre, he or she would be transferred to the approved centre. It provides that the person's physical health will be looked after in the accident and emergency department and his or her mental health treatment will be looked after in the approved centre, and if he or she needs mental health treatment-----

I understand that. I am asking whether the heads of Bill address the fact that people are arriving at emergency departments because they are feeling mentally unwell and are not getting the treatment they deserve and need at that point in time? They are then basically sent home without getting treatment. I am asking about that rather than cases where people hurt themselves while in a mental health facility. In other words, I am asking about what happens prior to admission.

Mr. James Kelly

The Deputy's question speaks to resources more than anything else because obviously the most appropriate environment for someone to be treated for mental ill health is in a mental health facility.

There is nothing in the proposed Bill that explicitly states a person can be transferred from an accident and emergency department to an approved centre, for instance, if someone presents at an accident and emergency department with mental health difficulties and the psychiatric liaison service considers that he or she needs to have acute treatment. Such persons can continue to be transferred from a hospital under the proposed updated Act but we have not included anything on the resourcing of accident and emergency departments or anything like that in the proposed Bill.

Senator Hoey earlier raised the issue of a complaints mechanism. An independent complaints mechanism is vital. Constituents have been contacting me calling for such a mechanism, particularly in the scenario I raised where people seeking mental health services are unable to get them. Mr. Kelly touched on this matter briefly but what was the rationale behind not recommending an independent complaints mechanism? Is that decision final?

Mr. James Kelly

An independent complaints mechanism did not come up in the recommendations of the expert group in 2015, which is the meat on which the heads of the Bill are based. The issue came up in the public consultation we ran earlier this year. We considered it at that point but, as I mentioned to Senator Hoey, we concluded that it might be covered already in the existing functions of the inspector and the role of the Office of the Ombudsman in investigating HSE complains. As I said, the document is a living one and we will consider anything that emerges from the committee's pre-legislative scrutiny. Nothing is final until the legislation is passed.

That is good to hear. My final question is also about gaps in services. Dual diagnosis arises when people are suffering from a mental health issue and addiction. Deputy Buckley, who spoke earlier, has made further progress in reading the proposed Bill than I have at this stage but I tried to go through a fair bit of it over the past week. It is complex. Is provision made in the proposed Bill in relation to people admitted to mental health services who have an addiction as well as a mental health issue? Is there anything in it that would help them in the provision of care?

Mr. James Kelly

If, for instance, somebody is being involuntarily detained, the main reason for the detention is that the person fulfils the criteria. A person could fulfil the criteria and have addiction issues with alcohol or drugs or the person could have an intellectual disability or any number of issues. No one is precluded from being involuntarily detained by virtue of the fact that he or she has addiction issues. As long as someone meets the criteria for detention, he or she should be admitted. That covers the cohort to which the Deputy referred.

In terms of the specifics on people with addiction issues or dual diagnosis, these would be looked after in the person's individualised care plan and one would hope that the treatment the person would receive would not only be specific to the individual but would treat both aspects of the issue. We do not go into detail in the proposed Bill. We do not name any mental health condition either, so there are no references to schizophrenia or depression. It is more general and all conditions are included without any of them being named.

The individual care plans are part of the problem when people have dual diagnosis. Mr. Kelly mentioned other conditions that can be classed as dual diagnosis. Where there is an individualised care plan from an addiction centre and another individual care plan from a mental health perspective, there is a lack of a joined-up care plan. This is another gap in service. There should be a way of ensuring the person's needs are treated holistically rather than on an individual basis.

Mr. Seamus Hempenstall

We dealt with this matter in detail. On dual diagnosis, we have a programme manager for the national clinical programme.

We are developing a model of care which has to do with dual diagnosis. I also agree with the Deputy at a general level. People with mental health issues often have other issues as well. I believe they are called comorbidities. It is important from an individual care planning perspective that those things are taken into account. Developing a service to provide that wrap-around is more of a policy issue through Sharing the Vision.

I will go back to something Deputy Buckley raised about the Department of Justice. We are working very closely with the Department on a high-level task force for prisoners and for diverting people away from prison if they have committed crimes more because of mental health issues than anything else. The Department is working very hard and pushing us very hard. That task force is chaired by Kathleen Lynch, the former Minister of State with responsibility for mental health.

On the out-of-hours service, I had thought that was what the Deputy was asking about. The Minister of State, Deputy Butler, has prioritised developing out-of-hours services, crisis teams and that kind of thing as part of the new development funding for 2022. I could not agree with the Deputy more that people can have mental health issues outside of the hours of 9 a.m. to 5 p.m.

With regard to what Deputy Hourigan said about guidelines and best practice for proprietors and people running mental health services, I mentioned that dual diagnosis model of care, but we are also bringing in a range of models of care to deal with a lot of new mental health issues that are coming to the fore. Eating disorders come to mind. Child and adolescent mental health services, CAMHS, have operational guidelines in that regard. There may well be no shortage of best practice for those who are running services to rely on, especially with regard to multidisciplinary teams that bring all of those things together. I am not sure that is specifically addressed in legislation because the more specific the legislation, the quicker it can go out of date. The idea behind the legislation is to present the framework and human rights basis. Those guiding principles can then be used as a base from which to develop operational guidelines and forms and models of care so that people can get high-quality mental health services.

On protected disclosures, I do not know if the Deputy was raising something specific. I cannot answer to that. All I know is my colleagues deal with such disclosures very seriously whenever we receive one. From my perspective, the HSE also takes them seriously. I will put that on the record.

I have a few questions. I hope that is okay. Before I ask any questions, I warmly welcome the publication of the heads of this Bill to amend the Mental Health Act 2001. The work the Department has done has been phenomenal and I thank the witnesses for that. The changes in language, for example, using "person" instead of "patient", are really well thought through. Ireland has an opportunity to deliver person-centred, human rights-compliant, progressive, non-coercive legislation that is compliant with the UN Convention on the Rights of Persons with Disabilities, the UNCRPD. Do the witnesses know what I mean? We can lead on this. Ireland can be a world leader on mental health legislation. I am honoured that this matter has come before the Joint Sub-Committee on Mental Health and that we can be part of this whole process. I look forward to working with the witnesses.

I have some questions on the Bill. I hope that is okay. My first question aims to follow up on Deputy Hourigan's earlier point regarding other key legislation. Mr. Kelly mentioned that amendments to the Assisted Decision-Making (Capacity) Act 2015 were needed. He also mentioned ongoing conversations between the two Departments. Does one of those amendments relate to decision-making provisions for under-18s? Is it correct to say there is currently a lacuna with regard to 16-year-olds and 17-year-olds? Will Mr. Kelly give me a bit more detail on that?

Mr. James Kelly

Policy responsibility for the Assisted Decision-Making (Capacity) Act rests with the Department of Children, Equality, Disability, Integration and Youth. I was not involved in the drafting of that Act but I understand the age of 18 was chosen for a number of reasons. Healthcare is only one of the many areas the Act deals with.

It also covers decisions relating to finances and other aspects of life. It is for that Department to decide whether the age should be reduced to 16, but I understand there would be a lot of consequences to such a decision. It is outside of the control of our Department. As I mentioned earlier, we are bringing consent for mental health treatment for 16-year-olds and 17-year-olds in line with consent for physical treatment. A 16-year-old can decide whether he or she wants to have surgery but cannot, at the moment, decide whether to attend a mental health service. That decision is made by the parents. We want to remedy that disparity between physical and mental treatment. Those aged 16 or 17 who have physical conditions are also not covered by the Assisted Decision-Making (Capacity) Act 2015. There is a gap on all sides in that regard, not just in respect of mental health. It is coming to light on our side because we are reducing the age of consent for mental health treatment to 16 whereas that is already the case for those aged 16 or 17 accessing physical health treatment.

Because that Act does not apply to that age cohort at the moment, we have left it up to the Mental Health Commission to make the guidelines as to how to assess capacity for those aged 16 and 17, how such capacity assessments are to be carried out and who should carry them out. That is our fix for the moment but, if the Department of Children, Equality, Disability, Integration and Youth were to decide to reduce the age specified in the Assisted Decision-Making (Capacity) Act to 16 from 18, we would, of course, reconsider the provisions we have included. However, this is our workaround - for lack of a better word - for now because that Act does not apply to 16-year-olds and 17-year-olds. We are trying to bring the principles of that Act into our own Act in a sense. We are trying to make sure the capacity assessments are as similar as possible to those carried out under the 2015 Act.

I have a couple more questions. I am a little bit concerned about the section 4(9) proposed under head 5 which states, "The provision of mental health services is subject to the availability of resources." I hope the witnesses will forgive me if they have covered this. I just feel the inclusion of this statement in legislation only serves to undermine its thrust and the culture change that is needed. Will this provision be removed from the final version of the Bill? Will the final Bill be strengthened with regard to resources?

Mr. James Kelly

Yes. It will be removed from the final Bill. This provision was included because the Office of the Parliamentary Counsel wants to make sure there is an implicit understanding in any legislation that things can only be made available subject to the resources provided. The office wanted to make that explicit in the general scheme so that, when formal drafting began, that consideration would have been made explicit. It will not be in the final Bill.

With regard to section 9, which is proposed in head 10 and relates to authorised officers, the head refers to "Persons who may apply for involuntary admission". That is obviously very welcome. In consultation with the HSE, family members wanted to retain the option to apply for involuntary admission for relatives. I stress that an appropriately funded authorised officer service represents best practice. I have just one concern. I will read out a piece of the explanatory note in the general scheme. It says:

... [The expert group's] Recommendation 36 states that an authorised officer should be the only person to sign applications for involuntary admission to an approved centre. The EGR clearly recommended that it should always be an authorised officer who makes an application for a person to be involuntarily admitted. For this to operate effectively and in a timely manner, the HSE will need to guarantee that there are enough trained authorised officers available in all areas on a 24/7 basis. It would also mean that should the HSE require more time and resources to build up the authorised officer service, [This is all really good] then this new provision could not come into effect until the full service is in place, so this section may need to be commenced at a later date to the rest of the Act.

This is the concern. Has the Department sanctioned additional funding for increased numbers of authorised officers? Has a scoping exercise been carried out in respect of the community health resource areas where there are no authorised officers? How will the delay be avoided?

Mr. James Kelly

We put that in because we do not want a situation whereby if somebody needs to be involuntarily detained, they cannot be because there is no authorised officer available. We have had some initial discussions with the HSE as to how much that might cost per year, to fully staff enough authorised officers on a 24-7 basis in all 26 counties across the community health organisations. The preliminary discussion has already started and it may be the case that we may need to expand. At the moment, specific grades within the HSE can become authorised officers. We may need to go back to that to see if we can expand this to include other grades that are similarly qualified. This would expand the pool of people available. It would be an industrial relations issue also for the HSE in some respects because the HSE would have people working on call on a 24-7 basis.

There are issues to be worked through but they are not insurmountable. Limiting the authorised officers as being the only group of people who can make an application for involuntary detention is a very positive move. It allows that person to act as an impartial third party so that we are not disrupting the ratios between family members such as between mothers and sons, siblings, husbands and wives, and so on. It is a key piece. The HSE is aware of this, and it is also in the programme for Government. We are very committed to getting it right. With regard to the delay, we were thinking that it might be six months, for example. It would not be a substantial delay. It would just be to make sure that the structures are in place. As soon as we have an idea of the final shape of the Bill and when it might be passed, it will be one of the key priorities in the implementation phase before everything has to be commenced.

There is no doubt that authorised officers are vital in this regard. Their services should provide support to the person who is experiencing mental health difficulties and also to the family and friends, and supporters and carers with permission. I had a bit of anxiety around the wording of "at a later date to the rest of the Act". We can keep an eye on that for sure.

Mr. James Kelly

Yes. We wanted to be realistic on it also. We are keen to get it done as quickly as possible and have it all in place. The sooner it is in place the sooner the services will be more beneficial to everyone accessing them.

Under the explanatory notes on the advance healthcare directives and decision-making capacity, there is a recommendation to amend the Assisted Decision-Making (Capacity) Act. Is this to cover 16- and 17-year-olds?

Mr. Seamus Hempenstall

I believe it is. Is the Deputy talking about the advance healthcare directives?

If I recall correctly, it is in the list of expert group recommendations. It is in recommendations Nos. 126 and 127, under the heading "Advance Healthcare Directives". The Act is there already, it would just be a matter of reintroducing it. It would complement the proposed Bill.

I also wish to flag up a huge problem in Ireland regarding mental health and disability. If a child, a teenager or any person has a form of autism and has mental health issues, we do not have a service for them in the Thirty-two Counties, never mind Twenty-six Counties. I just want to flag this up today because we are getting a lot of this in our offices. It is an awful thing to have to say to a parent that they would have to go to England before they get anything for their child. I just want to share that with the committee.

Is there any response to Deputy Buckley's comments? No.

I have one more question to ask. Perhaps Mr. Kelly could answer it. Why keep provisions for admitting under 18s to adult facilities? Does he think that we should be prohibiting this practice?

Mr. James Kelly

We had that debate ourselves over the course of writing the general scheme. No one wants a child to be admitted to a facility for adults, but it does happen on occasion. If a child is in a CHO where there is no appropriate inpatient CAMHS unit, he or she may be admitted to an adult ward for one night to provide for the transfer in order that he or she is in a safe environment. It is similar to the restrictive practices around seclusion or restraint. It is something we do not want to see but, with our eyes fully open, it does happen on some occasions, so we have to put something in place to make sure that we are aware of how often it happens, when it happens and the reasons for it happening with a view to reducing it and hopefully not having to use that section in the future.

Mr. Seamus Hempenstall

The numbers have gone down quite significantly. I attended a meeting in Linn Dara about six or eight weeks ago. The number of children that has happened to are significantly down. I cannot remember the exact number. In the vast majority of those cases, which were in single figures, it was only for a night and the majority of the children affected were 17, so they were almost adults anyway. As Mr. Kelly said, it is intended to provide for a last resort. It is not something that anybody really wants to do. The HSE is definitely improving in terms of addressing that.

That is everything I wanted to say. I thank the witnesses most sincerely for their presentations. We look forward to working with them in the future.

The joint subcommittee adjourned at 12.32 p.m. sine die.
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