Mental Health (Amendment) (No.2) Bill 2017: Committee Stage

Please note that this meeting will be carried live on Saorview channel 22, Virgin Media channel 207, eirVision channel 504, Sky channel 574 and Vodafone channels - Oireachtas TV 201, Dáil 207 and Seanad 208. Members are requested to switch off their phones or switch them to airplane mode so as not to interfere with the recording of the meeting.

This meeting has been convened to consider the Mental Health (Amendment) (No. 2) Bill 2017, which is a Private Members' Bill. The purpose of the Bill is to amend and extend the Mental Health Act 2001, to incorporate certain provisions of the Assisted Decision-Making Capacity Act 2015 relating to treatment of patients under the Mental Health Act 2001, to improve the provision of mental health services, to promote the rights of persons subject to the Mental Health Act 2001, and to provide for related matters.

I welcome Deputy James Browne, the sponsor of the Bill. I also welcome the attendance of the Minister of State, Deputy Jim Daly, and congratulate him on his appointment, and welcome his advisers, Mr. Gerry Steadman and Ms Lorraine Doyle.

I note that there are only three proposed amendments and that amendments Nos. 2 and 3 have been grouped and will be discussed together.

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

Section 2 of the Bill substitutes a new definition of voluntary patient which explicitly includes a reference to the need for such patients to actually consent to such admission. Currently, the definition of voluntary patient in the Mental Health Act 2001 states that a voluntary patient is not subject to an admission order. In other words, a person is a voluntary patient if he or she is not an involuntary patient subject to detention. This definition makes no reference to consent. In order to be compliant with the UN Convention on the Rights of People with Disabilities and in line with the provisions of the Assisted Decision-Making Capacity Act 2015, it is necessary to amend the definition of voluntary patient to include a specific reference to the need for a person to consent to admission.

However, this change cannot proceed on its own without any associated changes being introduced. The suggested definition of voluntary patient would immediately result in some people being denied inpatient treatment. Such persons would be those who lack capacity and, therefore, cannot provide consent. While they would need inpatient treatment, they would not be sufficiently mentally ill as to warrant admission as an involuntary patient. As they lack capacity and cannot consent to treatment, they could not be voluntary patients but, equally, as they do not suffer from a mental disorder within the meaning of section 3 of the 2001 Act, they also could not be detained. Such patients are often referred to as the "compliant incapacitated". Before any new definition of voluntary patient which explicitly refers to capacity, we need also to include lawful measures which ensure that at no stage would the compliant incapacitated be denied treatment.

In this regard, my Department is currently working on deprivation of liberty safeguards, intended to allow persons without capacity to be lawfully admitted to residential care and to psychiatric hospitals for treatment. It is essential that the change to the definition of "voluntary patient" occurs simultaneously with the commencement of provisions relating to deprivation of liberty. Work is under way on these safeguards and my Department is in discussion with the Department of Justice and Equality about including these provisions in the Assisted Decision-Making (Capacity) Act 2015. I assure Members here today that this is a priority change for my Department. The fact that the Assisted Decision-Making (Capacity) Act 2015 has not yet commenced allows us time to finalise the necessary changes as without such commencement, and the roll-out of the decision support service, the planned deprivation of liberty measures cannot begin.

Where this important change is concerned we agree that it is a necessary change, but we ask Members to press the pause button because we need to finalise the deprivation of liberty safeguards in tandem with this change, otherwise we will be legislating to deny certain people inpatient psychiatric treatment. This, obviously, cannot be allowed to happen. It is my intention to revisit this provision on Report Stage.

It appears that the Minister of State, Deputy Daly, is not putting any proposal before the committee. He seems to be holding it over to Report Stage, so in those circumstances I am pressing the provision.

Are there any further comments?

I cannot agree with the Deputy because the deprivation of liberty safeguards will not be in place. I ask if the Deputy is prepared to work with me between now and Report Stage to try to put the safeguards in place. This would make it much safer legislation.

Is the Minister proposing that this amendment would be put on Report Stage?

Is the section agreed?

The section would be subject to amendment on Report Stage.

The clarification is not clear. What exactly is being proposed by the Minister of State?

The Minister of State has not put in an amendment.

That is what I understand.

The Minister of State, Deputy Daly has identified that on Report Stage this would be an amendment he would put forward. At this hearing it is not an amendment.

As I understand it, the Minister of State is simply reserving his position to put in further amendments at a later stage, but he is not seeking to stop this provision at this point.

Correct.

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

Section 3 of the Bill substitutes a new section 4 of the 2001 Act, which effectively replaces the existing principal consideration of the Bill of "best interests", with a number of new human rights based principles. My Department does not object to this proposal, which mirrors very closely a recommendation of the expert group review of the Mental Health Act 2001. Under the current section 4 of the Mental Health Act 2001 the best interests of the person are identified as the principal consideration in any decision to be made concerning the care or treatment of a person. This section has, over the years, led to an over paternalistic interpretation of the Act. This is no longer seen as appropriate and is not in line with modern human rights standards.

The expert group review of the 2001 Act, which was published in 2015, recommended that the principal consideration of best interests should be removed from the Act and replaced by a list of guiding principles. These are the enjoyment of the highest attainable standard of mental health with the person's own understanding of his or her own mental health being given due respect; autonomy and self-determination; a presumption that the person is best placed to determine what promotes or compromises his or her own dignity; bodily integrity; and least restrictive care. This list is effectively the same as the principles listed by Deputy Browne in his Bill and my Department can agree, subject to possible minor changes on Report Stage, to the proposed provision.

I would ask Members to allow us some further leeway to examine what other possible linked changes might be necessary to ensure that the provision as it stands does not have any unintended consequences. It is my intention, therefore, to revisit this on Report Stage.

Again, as I understand it from the Minister of State's comments he is not making any proposals here this morning but is simply reserving his position to make proposed amendments at a later stage. In those circumstances I am pressing for the provision.

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

Section 4 of the Bill is linked to the previous section and also deals with the principal consideration of "best interests". In this case it relates to children not adults. There is one significant change. While the intention is to add guiding principles, as is proposed for adults, with regard to children we would seek to retain the reference to "best interests". There is agreement that this is the way to proceed where children are concerned. The expert group review on the Mental Health Act 2001 also recognised that in the context of children there is a need to refer to "best interests" and it is noted that paragraph 1 of Article 3 of the United Nations Convention on the Rights of the Child provides that in all actions concerning children that are undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary consideration.

The guiding principles as laid out in this section of the Bill differ slightly from those recommended by the expert group review and I would appreciate the opportunity to examine more closely the wording recommended before we agree the final text.

I must stress once again that I have no difficulty with the principle behind the change, but the individual principles themselves may need to be tweaked to make sure we get them absolutely right.

While I accept the thrust of the provision it is my intention to once again revisit this on Report Stage.

Once again, it is my understanding that the Minister of State is not making proposals this morning and is simply reserving his position to make amendments at a later stage. I shall press for the provision.

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

Section 5 deals with linking the issue of consent in the Mental Health Act 2001 more closely with section 3 of the Assisted Decision-Making (Capacity) Act 2015. This provides that a person's capacity should be construed functionally. This is broadly in line with what the expert group review recommended. I have said previously that while what is being proposed is reasonable it cannot come into effect until the Assisted Decision-Making (Capacity) Act 2015 has actually commenced. There is now agreement that the Mental Health Act 2001 needs to be amended insofar as consent and many other matters are concerned. My officials and I need more time to ensure that a change of this nature does not require any other consequent changes to the Act that also need to be made at the same time.

Because the Assisted Decision-Making (Capacity) Act 2015 has not yet commenced we have time to examine this provision in more detail and I want to confirm that it is my intention to revisit it on Report Stage, with a view to introducing further linked amendments that, after examination, I may deem necessary.

I understand that the Minister of State is not making any proposals today and is reserving his position. I will press for the provision.

Question put and agreed to.
SECTION 6

I move amendment No. 1:

In page 5, to delete lines 4 to 10 and substitute the following:

“ “(1) The consent of a voluntary patient shall be required for treatment.

(2) The consent of an involuntary patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary as a last resort to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent.”.”.

This is a relatively minor amendment that seeks to clarify and make clear that which is implied in the Mental Health Act 2001. The amendment proposes to remove any possible ambiguity that the consent of a voluntary patient is required for necessary treatment.

Section 6 of the Bill proposes an amendment to section 57 of the Mental Health Act 2001 under the heading "Treatment not requiring consent". Deputy Browne has tabled an amendment to his original wording, separating out consent for a voluntary patient and consent for an involuntary patient. The intention behind the amendment seems clear in that it expands the existing section 57 of the 2001 Act to ensure that the consent of a voluntary patient is also required for treatment. My Department and I have no difficulty introducing this clarity and the expert group review of the 2001 Act went further in suggesting that the right of voluntary patients to refuse treatment should be explicitly stated.

Section 2.18 of the expert group review examines in some detail the issue of consent to treatment. My officials would like more time to examine if other related amendments suggested by the expert group should be introduced at the same time as this proposed amendment.

We need to be mindful of any unintended consequences of the amendments we are considering today. It is important that before we nail our colours to the mast when amending text that we are certain of the effects of the changes proposed. We must also factor in consideration of the effects of the Assisted Decision-Making (Capacity) Act 2015 on the Mental Health Act 2001 in this regard.

It is for these reasons that it is my intention to revisit this amendment on Report Stage.

As I understand it, the Minister of State is not proposing anything here this morning. He is reserving his position. In those circumstances, I am pressing the amendment.

Is anyone objecting to the amendment?

Amendment agreed to.
Section 6, as amended, agreed to.
NEW SECTIONS

As amendments Nos. 2 and 3 are related, they may be discussed together.

I move amendment No. 2:

In page 5, between lines 10 and 11, to insert the following:

Amendment of section 82 of Principal Act

7. Section 82 of the Principal Act is amended in the definition of "advanced healthcare directive" in paragraph (a) by inserting after "capacity," the following:

"including persons being treated upon involuntary admission under the Mental Health Act 2001,".".

Following discussions, we intend to move and withdraw these amendments to allow for further consultation. We will table these amendments again on Report Stage. There was an error in the submission we originally made. The Bill was incorrectly referred to. The correct reference should be to "the Mental Health (Amendment) (No. 2) Bill 2017". I apologise for the confusion. The submission we made should have referred to the No. 2 Bill. I am in the Chair's hands on this one.

To be helpful, the amendments were obviously intended for the Mental Health Act.

I apologise again. The reference should be to the "Assisted Decision-Making (Capacity) Act", rather than the "Mental Health Act", as we submitted. I am happy to correct that. I propose to move and withdraw these amendments to allow for further discussion.

Do the Minister of State or Deputy Browne want to make any further comments?

No, it is okay.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 5, between lines 10 and 11, to insert the following:

"Amendment of section 85 of Principal Act

7. Section 85 of the Principal Act is amended by deleting subsection (7).".

Amendment, by leave, withdrawn.
Section 7 agreed to.
Title agreed to.
Bill reported with amendment.

I thank Deputy Browne for attending this morning's meeting. I also thank the Minister of State and his advisers for being in attendance.

I thank the Chairman, staff and members for their work here today.