Mental Health Bill 2024: Committee Stage (Resumed) Seanad Éireann — 2026-01-22 ============================================================ Mary Butler (FF), Waterford I am speaking to amendments Nos. 140 to 148, inclusive. Amendments Nos. 143, 145 and 147 are Government amendments. At the outset, I would like to provide some context to this provision and the Government amendments arising from it. As Senators may be aware, the Bill provides for an overhauled approach to consent to treatment and assessment of capacity. That is the biggest part of the Bill we have discussed the whole way through. The Bill provides for the formal assessment of capacity and for two assessments to take place before a person is assessed as lacking capacity. This compares to the Mental Health Act 2001 where any assessment of capacity is carried out by the responsible consultant psychiatrist. There is no standardised approach to such assessments in the 2001 Act. The Bill also introduces the ability of people who lack capacity to have their will and preferences respected by way of a substitute decision-maker. This is a massive change. What it means is that a person can make an advance healthcare directive ahead of time. That directive must be respected if it specifies that a person refuses a certain treatment. Furthermore, a directive can be used to appoint a designated healthcare representative. This designated healthcare representative can consent to or refuse any treatment on behalf of the person. Where there is no directive in place, the Circuit Court can appoint a decision-making representative to make decisions on behalf of a person, in keeping with the person's known will and preferences. This section of the Bill probably took the longest with regard to legal matters, the Attorney General and the Office of Parliamentary Legal Advisers to make sure we got this right, with no unintended consequences. What this means is that, compared to the Mental Health Act 2001, there are many more ways in which a person can consent to or refuse treatment, even in circumstances where he or she lacks capacity. I believe that this point has been forgotten in some of the debates on the provisions of the Bill. This is a change to be welcomed. Accepting that we must allow for people to express will and preferences while involuntarily detained and lacking capacity, there is a potential risk that needs to be addressed. We have to balance that. It is really important. We are talking about some of the sickest people, who do not have capacity. This risk relates to the very small subset of involuntarily admitted people who are a serious and immediate risk of harm to the health of other people or a serious risk to the lives of other people. This risk was discussed in detail by officials in my Department with officials in the Attorney General's office. This section allows for a registered proprietor of a service to apply to the High Court for an order to direct treatment where a person meets every single aspect of the strict criteria and poses a serious and immediate risk of harm to another person. The application to the High Court may be made in cases where treatment is refused by, or on behalf of, that person. If a person cannot be treated, the legal basis for his or her detention may be undermined. If the detention is undermined, he or she may have to be discharged. This is really serious. In such cases, the person would still require treatment for his or her mental disorder but, more seriously, he or she would pose a serious and immediate risk of harm to another person or himself or herself. I have listened to feedback from stakeholders since the Bill was passed in the Dáil and am moving an amendment to ensure that the High Court must make the order, following consideration of an application, before any such treatment is initiated. This is amendment No. 148. An identical amendment has been introduced by Senator Black. In order to move things along, I am willing to withdraw my amendment No. 148 in favour of Senator Black's amendment - also amendment No. 148 - because they are identical and to show that I am prepared to take amendments and work with the Opposition as best I can. --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-01-22/debate/main Retrieved: 2026-08-14T04:54:32+00:00 Sitting date: 2026-01-22