Mental Health (Amendment) Bill 2017: Committee Stage

Section 1 agreed to.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."

I welcome the Minister of State, Deputy Jim Daly, to the House. I am speaking on this Bill on behalf of my colleague, Senator Swanick, who is unfortunately unable to be here this evening. It is great to see this Bill get to this Stage. It has passed all Stages in Dáil Éireann and was prioritised by the Joint Committee on Health. This demonstrates the appetite there is for change. I commend the work of our mental health spokesperson, Deputy James Browne, in this regard. He has overseen the passage of this Bill through Dáil Éireann, the establishment of a dedicated committee on mental health and the introduction of further Bills which will benefit those who suffer from mental ill health.

The Bill contains certain significant changes which strengthen the rights of people who are in hospital for mental health care. The Bill will also support the right of inpatients to make decisions about their own treatment by linking the Mental Health Act 2001 with recent law that affirms that everybody should be presumed to have capacity to make decisions. I wish to flag that we will be introducing an amendment on Report Stage to replace each instance of the word "patient" in the Bill with the word "person". The reason for this is that under the Mental Health Act 2001 a "patient" is defined as someone to whom an admission order relates. This excludes those who do not fall under an admission order. We reserve the right to introduce an amendment on Report Stage which will remove reference to section 3 of the Assisted Decision-Making (Capacity) Act 2015 and replace it with the same text as in section 3 of the 2015 Act. The reason behind this is that the reference to capacity as defined under section 3 of the 2015 Act means that section 2 could not commence until the 2015 Act commences.

I would like to make a few short statements. I do not want to go into too much technical detail.

Is the Senator speaking on section 2?

Yes. I also commend Deputy Browne and, indeed, Fianna Fáil for pushing the issue of mental health. As an aside, our Government seems to feel absolutely no embarrassment that the existing Mental Health Act 2001 is not compliant with either the United Nations Convention on the Rights of the Child or the UN Convention on the Rights of Persons with Disabilities. Fianna Fáil, Sinn Féin, Labour, the Green Party and Independent Members have so far been unwavering in supporting a positive mental health agenda and they should be commended on that.

In a very fundamental way, this legislation supports the rights of inpatients to make decisions on their treatment by reflecting the policies of the Assisted Decision-Making (Capacity) Act 2015. The existing framework, whereby a person who has no capacity is nonetheless deemed to consent to treatment, is quite wrong both in law and as a matter of practice. This is an important amendment that respects the capacity of persons to have a proper say in their own treatment. The autonomous decision making of a patient is also given new protection in the child-specific provisions. It is important that the Deputy included these in the amendments. I have a particular interest in the amendment to section 25 of the 2001 Act, by which Deputy Browne proposes to include best interest principles where a child is admitted to hospital under a court order. As we know, there have recently been horrific cases of young people being admitted to hospital by court order with neither their autonomy or privacy rights being given full protection. This is the precise type of child-focused modernisation that is required by our Mental Health Act and I fully support it.

As the Minister of State is aware, we had a lively discussion here last week about the manner in which the Mental Health Act 2001 protects the rights of the child. Unfortunately, the Act is dramatically out of date. I think I am correct in saying that as few as one out of 160 recommendations from the expert review of the Mental Health Act 2001 were implemented. We still stand by the practice of admitting children to adult units in this country. I often meet GPs who say that this would never occur for a child with acute illness, for example, a kidney infection. Such a child would not be admitted to an adult unit and yet, in mental health care, the HSE will stand by this practice which its regulatory body has openly condemned. It is important that section 25 spell out the rights of the child which need to be considered by the courts when this kind of order is made. I also note that the adoption of the best interest provisions proposed by Deputy Browne would reflect and protect international human rights law and the necessity for children to have a say in their own treatment.

I congratulate Deputy Browne once again on this excellent legislation. I hope that these provisions can be reflected in what needs to be a more timely and better staffed mental health service.

I commend Deputy Browne and the Fianna Fáil Senators who are progressing this Bill through the House.

I suppose this arose as a result of the Assisted Decision-Making (Capacity) Act 2015, where it has been three years but it has not been enacted. Nothing can happen in any shape or form. It is holding back not just mental health reform, but also other social policy areas. We want to kick it to touch and get this legislation enacted. I ask the Minister of State to give us some idea as to when that might happen because many other things depend on it.

I will outline some of the reasons for this Bill. Given that people are unable to make decisions, the decisions are made in their best interests. They are considered voluntary patients even though they have not given consent to being admitted voluntarily. From my experience, I am thinking about elderly people wandering aimlessly around psychiatric institutions, crying out, "Let me go home" and "Why is the door locked?". They do not understand what situation they are in but know that they do not want to be there. Surely that is an infringement of their human rights.

This proposed amendment to the Mental Health Act would strengthen that area and make us, as professionals, listen and take seriously what those people are saying. We may say it could be dementia, or confusion. It could be a toxic chemical that is running around the brain at that time, but it is a very distressing state for patients. We need to listen to their cries and take them seriously instead of prescribing more medication to keep them quiet.

I ask the Minister of State to outline when the Assisted Decision-Making (Capacity) Act will be enacted so that we can plough on with reform that is people-centred and that takes into account people's wishes and needs.

Question put and agreed to.
SECTION 3
Question proposed: "That section 3 stand part of the Bill."

We reserve the right to introduce an amendment on Report Stage to this section of the Bill that would retain subsection 4(2) of the 2001 Act. The Bill currently proposes its deletion. This provides some degree of additional and more specific protection.

The Department of Health raised concerns over the relevance of subsections 4(3) to 4(6) of section 3 of the Bill, given that they are already stated in the 2015 Act. In response to its concerns, I wish to clarify that we strongly recommend retaining these subsections to reinforce the applicability of the 2015 Act in the mental health area.

Question put and agreed to.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."

We will propose an amendment on Report Stage to this section of the Bill to include a separate stand-alone section setting out guiding principles to apply to children who are voluntarily admitted. The proposal in the Bill to include child-friendly guiding principles in section 25 of the 2001 Act currently only applies to involuntarily detained children. It is important that guiding principles apply to both involuntarily and voluntarily admitted children.

Question put and agreed to.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."

On Report Stage, we will submit an amendment to remove reference to "voluntary patient". We will also submit an amendment to include a separate stand-alone section to address consent provisions for people who are voluntarily admitted. Legally, consent provisions for people who are voluntarily admitted should be addressed in a separate section of the Act.

Regarding the definition of "the highest attainable standard of mental health", we strongly recommend that the Department of Health refer to the Committee on Economic, Social and Cultural Rights, CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12) in regard to this definition. Those comments refer to sections 5 and 6.

Question put and agreed to.
Section 6 agreed to.
SECTION 7
Question proposed: "That section 7 stand part of the Bill."

I welcome the Minister of State back to the House to discuss mental health in Ireland. I support Deputy Browne's Bill, which takes some very positive and necessary steps to address some of the shortcomings in our mental health system and puts in place some constructive measures to improve it. Action is needed because we have failed to do certain things. Mental health reform has been a very useful guide to us.

The Bill gives more power to the patient, the person involved, and that is an important clarification to be made. Too often we talk about service users and clients, but we are talking about people. Having that written into the Bill is a really important language change.

The Bill targets the inherent deficiencies in the Mental Health Act, seeking to make our system more compassionate and more flexible, reinforcing a basic human right with the highest attainable standards of mental health and the right to the least restrictive care. It is almost three years since the publication of the report of the expert group on the review of the Mental Health Act and the Government has consistently failed to meet its own timeframe for publishing a general scheme of a Bill to update the 2001 Act in full. Under the existing Mental Health Act 2001, there is continued violation of human rights standards among people who are being treated in hospital for mental illness. Senator Devine outlined how that looks with people wandering around corridors, lost, not knowing how they got there and certainly not knowing how they can get out. Rectifying this is overdue and this is an opportunity to advocate for the amendment of the Mental Health Act 2001 in full. It seeks to give voice to those directly affected - voices sometimes weakened, often unheard or even silenced within the mental health system in the past.

It is good that this important Bill on mental health is being discussed and debated in the Seanad. The Taoiseach recently described this House as a place where courageous and outspoken things were said, a place which brought together diverse collections of men and women, poets and thinkers, specialists and innovators. It is the responsibility of this House, therefore, to speak out and to work on behalf of those who cannot speak out.

Last week, we had another important debate on mental health in the presence of the Minister of State, Deputy Jim Daly, when Senator Freeman introduced another important Bill on the care-----

I remind the Senator that this is Committee Stage and not Second Stage. I ask her to conclude at this stage. I do not know how much more she has, but it is-----

I wanted to highlight a letter I received about the response the Minister of State gave me, suggesting that I needed to watch my language because of the effect it might have on people accessing the system. The parents involved, who wrote that letter to me and which I highlighted to the Minister of State, were very upset by his response. They said that instead of watching my language, we need to watch our children.

When we speak out in that way, whether on these matters or other matters, it is important to recognise that it is not personal; it is speaking out on a topic. We need to be courageous and outspoken. I felt it was important for me to relay their concerns today because I was speaking on their behalf rather than on my own behalf. They were very unhappy with the Minister of State's response, feeling that it shut down conversation and debate. They encouraged me to continue to raise those matters and speak truth to power even if power is not listening.

Question put and agreed to.
TITLE
Question proposed: "That the Title be the Title to the Bill."

I thank Deputy James Browne for introducing the Bill, which has passed through the Dáil. As I have stated previously in the House, I recognise and value the importance he and others in both Houses attach to the need for introducing these changes to our mental health legislation. While there were no amendments before us, I would like to apprise Members about the reason for that and my plans to amend the Bill on Report Stage but, before I get into that detail, I would like to make a few remarks.

It is incumbent on me to flag the amendments I wish to table. The Bill has three main goals. First, section 2 seeks to amend section of the Mental Health Act 2001 by updating the definition of "voluntary patient" to include the need for the patient to consent to admission. Second, sections 3 and 4 seek to amend sections 4 and 25 of the Mental Health Act 2001 by replacing the existing principal consideration in the Act of best interest with a number of principles, including, inter alia, the highest attainable standard of mental health autonomy, dignity and with due respect for the person's own understand of his or her mental health. Third, sections 5 and 6 seek to amend sections 56 and 57 of the Mental Health Act 2001 by linking more directly the issue of consent with section 3 of the Assisted Decision-Making Capacity Act 2015, which deals with a person's capacity to be construed functionally. The final two changes relating to best interest and consent closely mirror recommendations of the expert group review of the 2001 Act. The move away from the often paternalistic interpretation of the existing legislation best identified by the inclusion in the Act of the principal consideration of best interest is both necessary and welcome. We all want a scenario where in so far as possible individuals have the final say in what they feel is in their best interest and receive the best quality of service they need to reach the highest standard of mental health. This change will effectively move away from paternalism and place grater autonomy in the hands of the individual. However, when the analysis of the Mental Health Commission and my Department of the Bill's proposals is complete, I intend to revisit the list of adult guiding principles and it is likely that further changes in line with the recommendations of the expert group review will be proposed.

Deputy Browne sets out proposed guiding principles for children in section 4. I have concerns, as the principles are more adult-related and do not take account of the child-friendly guiding principles recommended by the expert review group. The commission is yet to give us its views on this but when they are received, I intend to discuss them further with the Deputy. In this regard, an important issue yet to be decided is whether "best interests", which will remain for children, should be a principal consideration in revised mental health legislation, as it is in the current 2001 Act, or whether "best interests" should be one of the list of child-friendly guiding principles, all of which would have equal value and merit. The views of the commission will be key to how I intend the phrase specific amendments on Report Stage.

With regard to consent, which the Assisted Decision-Making Capacity Act 2015 was not in place when the expert group reported, nonetheless, what the Deputy is proposing is considered to be broadly in line with what the group proposed in respect of consent and capacity. In addition, the specific reference to capacity and consent, which is now likely to be included in revised legislation, requires further examination as to whether other changes relating to assessment of capacity and who can assess capacity in the context of the Mental Health Act 2001, notwithstanding the fact that under the Assisted Decision-Making Capacity Act 2015, only a court can determine capacity. How further amendments on Report Stage may be framed will depend on whether capacity can be assessed other than just through the courts as the Assisted Decision-Making Capacity Act 2015 would seem to suggest.

The first change relating to the need to specifically include consent in the definition of "voluntary patient" was fully accepted by the expert group and is a change I fully support. The definition of "voluntary patient" proposed by the Deputy, however, differs from the one recommended by the expert group. While the Deputy's definition references the Assisted Decision-Making Capacity Act 2015, the expert group specifically spelled out a more detailed definition that did not reference the Act. The Department is waiting on the advice of the Mental Health Commission as to what the exact wording of the new definition should be. Furthermore, the Deputy proposes to amend sections 56 and 57 in Part 4 of the Mental Health Act 2001 and add provisions that specifically relate to consent and voluntary patients. Unfortunately, Part 4 of the Act only deals with involuntary patients and the inclusion of these provisions could fundamentally alter the nature of this Part. My Department is in consultation with the commission regarding the effects such a change might have elsewhere in the Act. The outcome of the discussions will help determine how we can best amend the Act to deliver on the aims of the Deputy in sections 5 and 6 of this legislation.

Finally, I would like to highlight one further significant issue regarding the Bill in respect of the amendment of the definition of "voluntary patient". If the proposed changes to the definition are accepted, persons without capacity who need inpatient mental health treatment but who do not have a mental disorder will be unable to gain admission to a psychiatric hospital because they cannot personally consent. A new definition of "voluntary patient", which includes the need for consent must commence only when other changes are introduced to allow patients without capacity to access treatment. There are no proposals to deal with this in the Bill and, on the face of it, this would be an impossible position for any legislator to defend. In this regard, my Department has separately launched a public consultation on draft legislation relating to deprivation of liberty with the final date for receipt of submissions being 9 March. It is intended that the new provisions will be included in the Assisted Decision-Making Capacity Act 2015. This is new complex legislation, which will also cover anyone who lacks capacity and is a resident in a range of health facilities, including nursing homes or facilities for persons with disabilities or mental illness. It is intended that the draft provisions, now published, will also apply to mental health facilities in circumstances where persons have mental health issues but are not suffering from a mental disorder and, therefore, cannot be involuntarily detained under the Mental Health Act 2001, nor can they be admitted as voluntary patients under the new proposed definition, as they lack capacity to give such consent. It is likely that the deprivation of liberty provisions will go before the Oireachtas later in the year.

We must all be conscious as legislators that, in amending the definition of "voluntary patient" as proposed, without at the same time passing alternative legislative provisions to allow persons without capacity or a mental disorder to access inpatient treatment, we leave ourselves open to criticism that the measures in this Bill alone seek to introduce an incomplete proposal. In this regard, it is also important to mention that, while the proposed amendment relating to changing the definition of voluntary patient can be amended by the Oireachtas in the short term, any such change agreed by the Oireachtas also cannot be commenced until the decision support service, DSS, to be established under the Assisted Decision-Making (Capacity) Act 2015 is operational. This is because the draft safeguards contained in the deprivation of liberty proposals use the framework set out in the Act and envisage a role for the service and, therefore, before such provisions can be operationalised, both the Act needs to be commenced and the DSS needs to be in place. We have time available to us to ensure we properly scrutinise the text of this Bill and ensure it is appropriately drafted and is fit for purpose.

I once again thank Deputy Browne for introducing the Bill. I have asked him not to proceed to Report Stage until the Mental Health Commission and the Department have completed their analysis of the Bill. As the provisions cannot be enacted until the DSS is commenced, there is no impediment to the Deputy holding off on going to Report Stage until the final text of the legislation is agreed between myself and the Deputy. I do not envisage that this will take too long, but it is essential that this work be allowed to finish its course. I am supportive of the changes being proposed in the Bill and we are all in agreement here that the changes the Deputy proposes need to be made. However, I have outlined my concerns regarding certain aspects of the Bill and as the analysis and legal examination of the text has not been finalised by the Department and the Mental Health Commission, I will only be in a position to propose amendments on Report Stage. On that basis, the Government will not oppose the Bill but will table amendments on Report Stage.

Question put and agreed to.
Bill reported without amendment.

When is it proposed to take the next Stage?

Report Stage ordered for Tuesday, 20 February 2018.