Assisted Decision-Making (Capacity) Bill 2013 – Speech By Dan Neville TD _ Dail Eireann – 11th December 2013
Deputy Dan Neville: I welcome the opportunity to contribute on this important Bill, which we have been seeking for several years. I will identify the positives, but I am also concerned about the relationship with the Mental Health Act 2001, as the Bill does not cover people with mental incapacity owing to mental illness. This Bill proposes a modern statutory framework to support decision-making by adults who have difficulty making decisions without help. It repeals the Marriage of Lunatics Act 1811 and causes the Lunacy Regulation (Ireland) Act 1871 to cease to have effect. When one reflects on the names of both Acts, one realises how outdated much of the legislation that deals with incapacitated people is, particularly as regards people with mental illness. In a previous time, our psychiatric hospitals were called lunatic asylums.
That changed in the 1920s but the word “lunatic” is still used in legislation. We have been raising this for a number of years in the context of the stigma regarding those who have a mental health issue. I will refer to that again later.
The legislation will enable the State to ratify the UN Convention on the Rights of Persons with Disabilities. This is part of the programme for Government. The Bill is considered to be a major step forward in terms of safeguarding the autonomy of vulnerable people in their decision making. In this context, disability organisations have monitored progress on the Bill closely and are anxious that it is enacted without delay. While the Bill does not cover the issue of mental illness, there is a connection with it. For a number of years we have been raising the issue of consultation with those who suffer from a psychiatric illness in a psychiatric institution. They are often ignored by the majority, although not all, of the psychiatric profession. In addition, while there are very good people in the psychiatric profession, the majority of them fail to consult with the carers of people who are suffering from a psychiatric illness. That is a serious fault in how our psychiatric services are administered. A certain section of the psychiatric profession fails to assist families and carers in dealing with the after-care of a person who has been treated as an psychiatric inpatient.
The Bill sets out the important guidelines which will safeguard the autonomy and dignity of the person who does not have the capacity and will apply to all interventions in their case. The most important principle in the Bill is that decision-making capacity is presumed, unless the contrary is shown, and no intervention will take place unless it is necessary. The incapacitated person will be treated as unable to make a decision only where all practical steps to help that person to make the decision have been unsuccessful. Any action or decision made under the Bill must be done or made in a way which is least restrictive of a person’s rights and freedoms. The Bill establishes in law the rights and freedoms of all people, regardless of their incapacity. Any action or decision made under the Bill in support of or on behalf of a person with impaired capacity must give effect to the person’s will and preference.
There are three decision-making support options to respond to the range of needs. First, the person can appoint a decision-making assistant – in most circumstances this would probably be a family member or a carer – through a formal decision-making assistance agreement to support him or her to access information or to understand, make and express decisions. Decision-making responsibility remains firmly with the person, not with the assistant. The second option is co-decision-making. A person can appoint a trusted family member or friend as a co-decision-maker to make decisions jointly with him or her under co-decision-making agreements approved by the Circuit Court. A co-decision-maker will help to access and explain information relevant to the decision to the person. The co-decision-maker will also help the person to make and express their decision. A co-decision-maker cannot oppose a decision made by the person where it is reasonable and will not cause harm to another person. The third option is a decision-making representative. That is for a small minority of people who are not able to make decisions, even with help. The Bill provides for the Circuit Court to appoint a decision-making representative who will make decisions on behalf of the person, but the representative must abide by the guiding principles and must reflect the person’s will and preference.
The current legislation governing mental health capacity dates back to 1871 and is widely considered to be outdated and inappropriate for dealing with those whose ability to make a decision is affected through illness, injury or some other cause. Under the current law a person who lacks decision-making capacity can be made a ward of court. As a ward of court they will not be allowed to make any decision regarding their personal welfare or financial affairs, including the right to marry, enter into contracts or to decide where they live. The Bill defines the decision-making capacity of a person, which is important. A person lacks the capacity to make a decision if he or she is unable to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making a decision or to communicate his or her decision whether by talking, writing, using sign language, assisted technology or any other means, or, “if the implementation of the decision requires the act of a third party, to communicate by any means with the third party”.
I referred earlier to the overlap with the Mental Health Act 2001. We have been seeking a review of that Act for a number of years. Amnesty International has done a great deal of work in this area. There is overlap between that Act and the legislation before us, as mental illness might diminish a person’s ability to make decisions. In the case of somebody in a psychiatric hospital or approved centre, both legislative measures are relevant. As a result, some commentators have urged that the two legislative measures “talk to each other” by using the same language and over-reaching principles.
While the Bill before the House has largely been welcomed by stakeholders as a significant and sought-after reform of the capacity legislation, concerns have also been expressed that the provisions of the Bill might not be available to those treated under the Mental Health Act 2001. Of particular concern is the status of patients in a psychiatric hospital or approved centre, who do not have mental capacity but are treated as voluntary patients, not involuntary patients. As such, they are not entitled to a review tribunal or legal representation, as they are if they are involuntary patients under the 2001 Act. Some stakeholders argue that this is a breach of their human rights. In addition, some commentators have suggested that multidisciplinary tribunals, similar to those under the Mental Health Act 2001, would be more suitable than courts for dealing with capacity cases.
The programme for Government includes a commitment to “review the Mental Health Act 2001 in consultation with service users, carers and other stakeholders, informed by human rights standards; and introduce a mental capacity Bill that is in line with the UN Convention on the Rights of Persons with Disabilities”.
The vast majority of psychiatric patients in Ireland are voluntary patients. Section 2(1) of the Mental Health Act 2001 defines a voluntary patient as “a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order”.
One of the most significant provisions of the Mental Health Act 2001 relates to involuntary patients. The 2001 Act provides that a person who is admitted to an approved centre as an involuntary patient is entitled to legal representation through a tribunal hearing within 21 days of their detention.
The Act, however, does not take mental capacity into account when deciding who is a voluntary patient. Effectively, this means that a person who does not have decision-making capacity can be considered a voluntary patient and is therefore not entitled to the same safeguards as an involuntary patient.
Amnesty International Ireland has stated that “the description of such patients as voluntary is misleading, in that it suggests the exercise of free choice by the individual concerned. This raises a number of concerns from a human rights perspective, some of which have been highlighted most recently by the Irish Human Rights Commission”.
In the Bill before us, the Mental Health Act 2001 is referred to as “‘the Act of 2001”. The explanatory memorandum to the Bill states that section 104 of the Bill “ensures that there is no conflict between this Bill and the Mental Health Act 2001. If a patient is being treated under Part 4 of the Act of 2001, i.e. consent to treatment, then nothing in this Bill authorises a person to give a patient treatment for mental disorder or to give consent to a patient being given treatment for a mental disorder”.
Part 9, section 67 of the Bill stipulates that “Where an issue arises in the course of an application to the court or the High Court under this Act, or otherwise in connection with the operation of this Act, as to whether a person who lacks capacity is suffering from a mental disorder, the procedures provided for under the Act of 2001 shall be followed as respects any proposal to detain (within the meaning of the European Convention on Human Rights) that person.” The 2001 Act provides for involuntary detention. In the old days that horrible term “being committed to a mental hospital” was used.
The experience both here and in Britain was discussed by Professor Genevra Richardson at a conference in Dublin last year entitled “Looking Globally, Legislating Locally: The Irish Legal Capacity Bill”. Professor Richardson cautioned that creating two separate legislative structures, i.e. a Mental Health Act and a Mental Capacity Act, will “inevitably lead to problems at the interface” for those suffering from a mental illness.
In England and Wales, the Mental Health Act 1983 allows for the provision of involuntary medical treatment to a person with a mental disorder. The Mental Capacity Act 2005 provides for a more general framework where decisions may be made on behalf of someone who lacks a decision-making capacity. If someone is deemed to lack mental capacity due to a mental disorder, a doctor will have to make a conscious choice between the two frameworks, either the Mental Health Act or the Mental Capacity Act.
Despite this overlap, Professor Richardson stated that the two statutes are designed with very different aims. The Mental Health Act is designed to minimise the risks to a patient and others, while the Mental Capacity Act is designed to empower individuals to make decisions for themselves where possible.
Professor Richardson has identified four questions clinicians must ask in order to decide between both Acts: does the patient have relevant decision-making capacity; if so, should the Mental Capacity Act or Mental Health Act apply; in particular, does the patient object to admission or treatment; and is deprivation of liberty required.
I will now turn to stakeholders’ comment on capacity and the Mental Health Act 2001. Under the current Mental Health Act 2001 a voluntary patient includes a person who is incapacitated. As these people are treated as voluntary patients, they do not have their detention reviewed by a mental health tribunal. Dr. Maurice Manning is president of the Irish Human Rights Commission, IHRC, as well as being a former Member of this House and Leader of the Seanad. He has urged that the new legislation would allow “for an assessment of a person’s capacity to consent or object to their admission to a psychiatric institution”.
The IHRC recommend that any person deemed incapacitated and proposed to be admitted to an approved centre, should be considered as an involuntary patient under the Mental Health Act 2001. This same point was echoed in submissions by the Mental Health Reform group and the Psychiatric Nurses’ Association to the Joint Committee on Justice, Defence and Equality. This would entitle such patients to have their detention reviewed.
The Law Society of Ireland recommends that a specific provision be put in the legislation recommending that a person who lacks the capacity to make a decision cannot be deemed a voluntary patient for the purposes of the Mental Health Act 2001. The society also states that where a person is suffering from a mental health disorder and also lacks capacity, the provisions of the Mental Health Act 2001 will prevail, but the safeguards of a review by a mental health tribunal should also be available to such a person.
NUI Galway’s Centre for Disability Law and Policy welcomed the Bill before us and praised its publication as:
a landmark moment in the process of disability law reform in Ireland. Once enacted Ireland should be able to ratify the UN disability treaty. The Minister is to be congratulated for moving beyond traditional guardianship to enable people take charge of their own lives. In particular, as the changed Title of the Bill suggests, it innovates by putting into place supports where needed to assist people make their own decisions and chart their own life choices.
I look forward to the Minister’s reply to the Second Stage debate, as I know he has a specific interest in reforming the Mental Health Act 2001. In his response, perhaps he could update us on the current status of the review of the 2001 Act and indicate when amending legislation will be introduced.
I thank the House for the opportunity to contribute to this debate.