Existing legislation in Ireland does not provide a procedure for admitting people who lack capacity to residential facilities in which they will be under continuous supervision and control and will not be free to leave, nor does the legislation provide procedural safeguards to ensure that these people are not unlawfully deprived of their liberty.
To address this gap in the legislation, the Department of Health has prepared draft Heads of Bill on deprivation of liberty safeguards which will form a new part of the Assisted Decision Making (Capacity) Act 2015. These heads of bill have been developed to provide legislative clarity on the issue of deprivation of liberty in residential facilities for older people, those with a disability or mental health issues. This legislative clarity is required to meet Ireland’s obligations under the United Nations Convention on the Rights of People with Disabilities (UNCRPD).
The provisions in the Draft Heads of Bill are intended to provide safeguards for older people and persons with a disability in instances in which they are living in, or it is proposed that they will live in, a residential facility and there is reason to believe that they lack the capacity to decide to live there. It is also intended that the safeguards will also apply to mental health facilities in instances where a person has a mental health issue but is not suffering from a mental disorder, and therefore cannot be involuntary detained under the Mental Health Act 2001.
The Department of Health is currently undertaking a public consultation on the draft Heads of Bill. It is important that the views of people working in health and social care settings are considered in this consultation, and the implications of the Draft Heads for day to day services are highlighted. Anyone who has an interest in this area is encouraged to consider submitting their views on the draft proposals.
For further information on the consultation, please go to www.health.gov.ie/consultations/