I agreed to recommit Section 18.
Committee on Finance. - Mental Treatment Bill, 1960—Report and Final Stages.
Bill recommitted in respect of Section 18.
The Minister kindly agreed to recommit this section by reason of the fact that we discussed it before we were aware of the problem which led to the introduction of the indemnifying legislation of Tuesday last. As I understand this section, it is the machinery which replaces that which had been there up to this for the extension of the period of detention of temporary patients. I gather that the real change effected is that instead of the Minister in future signing an extension order such order extending the period of detention may now be signed by the chief medical officer of the institution in which the patient is detained. That is understandable and, in principle, it is probably a desirable change.
It is desirable that the resident medical superintendent or the person who has the medical care of the patient—who is best qualified to know his position and what the future has in store for him and who also has the responsibility of acting as his adviser —should be the person on whom the obligation is placed of ordering his further detention. I am anxious to examine a little bit further what safeguards are in the section in relation to the chief medical officer acting on a wrong basis or for a wrong motive.
I observe that notice of the extended period of detention must be given to the person concerned—that is, the patient—and to the person who applied for the temporary reception order. After such notice is given an objection may be sent either by the person concerned—the patient or the applicant—and, on an objection being lodged, as I read the section the case or file is referred to the Inspector of Mental Hospitals. He requires the chief medical officer to submit to him forthwith a report, presumably a medical report, with regard to the patient concerned.
The section then says that on consideration of the report the Inspector of Mental Hospitals shall take such steps as he considers necessary for ascertaining whether or not the detention of the person to whom the order relates should be continued.
What is it envisaged the Inspector of Mental Hospitals will do? If there is an objection coming from, say, the person who is the subject of the extension and the chief medical officer certifies his further detention is necessary and reports to the Inspector of Mental Hospitals that in his opinion the person is suffering from some mental illness, what is it envisaged the Inspector of Mental Hospitals will then do? As it stands, the subsection is rather vague. It says "such steps as he considers necessary." Does that mean he may say "I shall not do anything. Having read the report from the chief medical officer, I now consider no steps are necessary. I am satisfied with the report"? Is it envisaged that he will himself carry out a full examination of the patient concerned and, if necessary, call in further medical assistance to confirm or not to confirm the report?
I mention that because we may be dealing with poor, ignorant, uneducated persons who have been received into an approved institution after examination because they are suffering from a mental illness. In fact, such a person may be suffering from some temporary nervous upset. The chief medical officer in any one of our district mental hospitals may be dealing with anything up to 1,500 or 2,000 patients. In that number he may have 200, 300 or 500 temporary patients. He may have the obligation imposed on him to consider whether and to what extent this proportion of temporary patients should be continued under detention.
When, in fact, the objection will probably come only from the patient in the form of a letter there is a very great and grave temptation to say: "This is a letter from some poor mental case and it is not to be regarded as deserving of much consideration." I should like to be sure that when any objection does come the Inspector of Mental Hospitals will not be satisfied merely with the medical report of the chief medical officer of the institution concerned but will conceive it to be his duty, and if necessary act and say it is his duty, himself to examine on the spot the patient concerned and decide for himself on his condition. Indeed, I should prefer that he would do that without having been first armed with the report from the chief medical officer and without being put in a position that convenience might dictate. The easier course is to agree with the view of the man who has responsibility for detaining the patient.
I should prefer that when an objection comes, the Inspector would examine the patient whom it is proposed to continue to detain and if he forms the opinion that there is nothing wrong with the person he can then inform the chief medical officer of that opinion. Some procedure may be designed to ascertain the correct medical position. I am horrified that the Inspector should just get a report and opinion from the chief medical officer and, armed with that report, should then examine the patient. The temptation is to say that the man on the spot must be right and to dissolve any doubts the Inspector may have in favour of the man who is on the spot. I should like to hear the Minister's views.
We must start from the assumption that the Inspector of Mental Hospitals and his assistant or assistants will discharge their duties conscientiously. That is the basis upon which we have to consider this and all similar legislation—that the officers concerned with the administration of it will do their duties conscientiously and zealously. The next consideration we have to bear in mind is that mental illness is not like physical illness. The symptoms are not always apparent; one does not take the pulse of a mental patient, take his cardiograph or his blood pressure.
What one has to do in considering such a case is to keep the patient under observation more or less continuously for a definite period of time. In these circumstances, we have to consider that the Inspector is going down, not so much in the role of a detective or as a supervisor, but as a consultant and if he is going to get anywhere in respect to the condition of any patient, he will naturally have to discuss the patient with the medical officer who has taken upon himself the responsibility of endorsing the order for the retention of the patient for treatment.
In order to do that, the Inspector is bound to know, or should be in a position to ascertain, the grounds upon which the medical officer concerned has decided to retain the patient for a further period. Consequently, I cannot see any objection to the Inspector asking the medical officer concerned to give him a full report on the patient's condition. Surely the Inspector is bound to ask on what grounds the patient has been detained, and surely it is, in justice and equity, right that the medical officer should be permitted to state these grounds before the Inspector goes down so that, among other things, the Inspector may fully consider those grounds and have satisfied himself as to what precisely he should investigate, or what are the elements of doubt in relation to the detention of the patient that he should have clarified.
I think that is justification for asking for a report in the first instance. When the Inspector goes down and is not satisfied about the propriety of retaininig the patient, he is bound to go forthwith and take such steps as he deems necessary to ascertain whether or not the patient is properly being detained. If he has any doubt at all, he cannot allow that doubt to remain for any significant period of time. He must straight away investigate the case.
That is not said.
In Section 239 of the main Act, it is laid down that where the Inspector of Mental Hospitals becomes of the opinion that the propriety of the patient's detention requires further consideration, he should report the matter to the Minister. After consideration of the report under the relevant subsection, the Minister may require the Inspector of Mental Hospitals to visit the patient and make his report on the mental condition of the patient. It can be taken that once the Minister is informed by his officer that it is doubtful whether the patient should be kept in, the Minister would forthwith direct the inspector to visit the patient. That is provided for in Section 239 of the principal Act. Then, after consideration of the report, the Minister, if he thinks fit, directly discharges the patient.
There is a further general obligation in respect of all persons in respect of whom the detention order has been endorsed. That can be found in Section 33 of the present Bill. There the obligation is laid upon the Inspector of Mental Hospitals to see every patient the propriety of whose detention he has reason to doubt. Later, he must on an ordinary visit ascertain whether or not, since his previous visit, any extensions under Section 189 of the Act have been effected and if they have give particular attention to the patients concerned. Later, he shall include in his report to the Minister, information with respect to any patient the propriety of whose detention he doubts and notify the person in charge of the institution that he has doubts.
He is bound to draw the attention of the medical officer to any case in which he has doubts as to the propriety of detaining the patient further irrespective of whether he has received an objection to the detention. I think we have gone as far as it is reasonable for us to go in this matter. We cannot guarantee that every person will do his duty as laid down under the Act. We could do that, perhaps, by inordinately increasing staffs and arranging that inspections would be very much more frequent.
In relation to a matter raised by Deputy T.F. O'Higgins on Tuesday on the 1961 Bill, I can say that with regard to the checking of these extensions, we shall take some steps to ensure that a register is kept in the institutions and that it will be regularly inspected. In addition, I would hope that, when we have relieved the Inspector of Mental Hospitals and the Assistant Inspector of the heavy burden of paper work now placed upon them, we would be able to make more frequent inspections of these mental institutions than has been the case hitherto.
This procedure in relation to the Inspector of Mental Hospitals comes into operation after the chief medical officer has, on the reception of the order, authorised an extension of the period of detention. There is then an objection and there is consideration by the Inspector of Mental Hospitals. What, in fact, happens if the Inspector of Mental Hospitals says: "This patient should not be detained?"
He reports that fact to the Minister.
New machinery is being introduced and, as far as I can see, there is no provision if the Inspector of Mental Hospitals feels that the patient should not be detained and that he should be let out.
On the receipt of the report and the objection, all that can transpire at that stage is that a doubt will be created in the mind of the Inspector. The Inspector has then to ascertain whether that doubt is well founded or not. He then reports to the Minister, who then can forthwith order the discharge of the patient.
I wonder? Has the Minister had advice on this? Under this Bill the Minister is fitting into the Mental Treatment Act, 1945, a new form of machinery. That machinery is being fitted into an Act under which the ultimate responsibility for detaining a temporary patient rested on the Minister. The Minister signed the order. Accordingly, everything fell into place because the Minister would not sign the order until he was satisfied that all the doubts that may have arisen all along the line were resolved and until he had eventually on his desk a document submitted after consideration by the Inspector and everybody else. He then signed the extension order and there could not be any appeal from that. That is definite. But in place of it is an extension order made by the chief medical officer with a check on that by the Inspector. However, there is not in this section any statement as to what shall happen when the Inspector says that an order, which has already been made, should not have been made. I do not see where, in those circumstances, authority is given for the release and discharge of the patient whose detention should not be continued.
It is not contained in Section 18, but surely it is contained in Section 239 of the parent Act?
Has the Minister been so advised?
Yes. The procedure of giving notice, receiving an objection and asking for a report is provided for in subsection (1) of Section 18. Under Section 33 the Inspector is bound to see every patient whose detention he has reason to doubt.
That is not related to this particular matter.
It is not, but it is in the general context. When he has fulfilled the obligation imposed on him under Section 18 of ascertaining whether or not the detention of the person to whom the order relates should be continued, there are then the other sections—but perhaps it would be better if I used the phraseology of the section:
Where the Inspector of Mental Hospitals becomes of opinion that the propriety of the detention of a patient ... requires further consideration, he shall report the matter to the Minister.
The Inspector, on receipt of the report from the medical officer, may come to the decision that the detention of the patient requires further consideration. He then reports to the Minister and the Minister directs him to go and see the patient. As a result of the report then submitted by the Inspector, the Minister, after consideration, may think fit to discharge the patient. I think that is the position.
I am a bit worried about it. I can understand that section being the apt and proper section with the machinery as it was up to this. For instance, that section applies generally, not merely to temporary patients. It is the ordinary safety valve in the mental treatment code. As I understand it, it comes into operation this way. The Inspector is around inspecting mental institutions. He comes across a patient and has a doubt; he is a bit worried. He reports that doubt to the Minister. The Minister says: "Very well. You had better have a full examination." Then, on his report, he may discharge.
That is the ordinary safety valve that should be there. There is not—and there could not be up to this—any method for dealing with the discharge of a temporary patient after his original period of six months was up. The Minister, by not approving his continued detention, automatically ordered his discharge. But that has been taken away from the Minister now and there is a new procedure being put into operation. Frankly I do not think it fits very well into the safety valve section, Section 239 of the parent Act.
May I just put this to the Minister as an example of what I have in mind? It is the case of a temporary patient, a patient for only six months. He is in only for six months under a temporary detention order. Therefore it was felt at the time he was admitted that in all probability he was going to be there still in a few months time. One can imagine that through some neglect, lack of attention or something else, his detention is ordered by the chief medical officer for a further period of six months; he objects, and the Inspector of Mental Hospitals gets the objection. I hope the Inspector would go and see the patient. He then forms the opinion that his detention should not be continued.
If the only way that patient can be got out is to throw his case into the Section 239 machinery, months may pass before the Minister has an opportunity of considering the matter and the patient may be detained for the greater part of the continued six months period. There should be some procedure under which, if the inspector thinks the person should not be detained, no time should be lost in ordering his discharge. This Bill has to go to the Seanad and I do not want to delay it, since I understand that in relation to some other parts of the Bill there is urgency. However, would the Minister consider that aspect of it?
Certainly, I am quite ready to consider it, though I think the situation is covered, perhaps rather cumbersomely. We have first of all to agree that it would perhaps impose an unnecessary obligation on the Inspector of Mental Hospitals if he were to see every patient in respect of whom an objection might be lodged, particularly an objection emanating from the patient himself. Everybody knows that it is one of the symptoms that despite other symptoms the patient thinks himself in good mental health.
Does not that make it necessary to examine him?
The objection must be considered in the light of the condition of the patient, and not in the light of what he himself believes that condition to be, and, therefore, there must be some sifting of these objections. If, having read the report from the medical officer and the statement of the grounds on which the person has been detained, those grounds are sufficient to satisfy the Inspector of Mental Hospitals in the matter, I do not think it would be practicable to insist that the Inspector should, notwithstanding his opinion, again go to inspect him.
We will agree with that.
It is only when a doubt arises that the Inspector should then take the matter further, and there he is bound to take all such steps as will satisfy him that the patient is being properly detained. If he has any doubt about the matter he does not necessarily have to see the patient first. He can go immediately to the Minister, and the Minister can direct him to go to see the patient, and if he has satisfied the Minister that, despite what the medical officer has said, there is still such a doubt about whether he should be detained he may be directed, and he can, indeed, go without any direction, to see the patient.
He can at any time inspect a mental institution and see a mental patient. He is, in fact, on his normal visits of inspection bound to see all those patients covered by Section 33, but he can at any time visit a mental hospital and see a particular patient. He may have to advise the Minister that he is going. That would be a formal request to the Minister to direct him so that he may go down armed with that authority.
The question arises as to whether it would be necessary to arm the Inspector in that way, or whether it would be just as well to put the obligation directly on the Inspector immediately he himself has any doubt about the period of detention of a patient. As it stands under Section 239, he can report the matter to the Minister, who can direct him to visit a patient and to report directly to the Minister, and the Minister can then forthwith order the discharge of the patient.
That could be done possibly in a simpler way. I should like to consider it. That way would be that the Inspector should himself, without any ado, go down and see the patient and that he should as a result of his visit on his own responsibility order his discharge. There is one objection to that which we must carefully consider. It would impose on the Inspector of Mental Hospitals all the responsibility for running the institution, because that could happen in respect of every patient there in regard to whom a detention order had been made. It could also mean a conflict of opinion if no other man was brought in to determine what would happen. It would lead to a weakening to some extent of the position of the chief medical officer of the institution, and that would be a rather serious matter. However, I should like to study the matter more closely and shall see what can be done by amendment in the Seanad.
Section 18 agreed to.
Section 18 reported and agreed to.
I move amendment No. 1:—
In page 3, to delete lines 29 and 30 and to substitute "shall, when any enumeration of persons is being made for the purposes of this section, be included in the reckoning".
The draftsman is to be complimented on the manner in which he met the point which Deputy O'Higgins raised on the section.
I entirely agree.
Amendment agreed to.
I move amendment No. 2:
In page 3, to delete lines 34 and 35 and substitute "patients shall, when any enumeration of persons is being made for the purposes of this section, be included in the reckoning."
Amendment agreed to.
I move amendment No. 3:
In page 6, to delete "such escort as may be necessary" in lines 22 and 23 and substitute "an escort" and to delete "may be" in lines 24, 27 and 32 and substitute in each case, "in his opinion, is."
This is satisfactory. In fact we have taken the Deputy's own words.
Yes.
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
It is only due to the House to say that I very much appreciate the assistance given to me by those who have participated in this debate. The Bill is in some respects better than when it came to the House. There are one or two matters to which I should like to refer. The first is the point raised by Deputy Corish as to the difficulty which the staffs in mental hospitals may have in appreciating what their position will be under the new superannuation code. As I said on the Second Reading, I shall endeavour to have a memorandum prepared which will enable them to form an accurate opinion as to how they would stand under the three codes with which some of them may be concerned.
I have already mentioned that in relation to the question of having a record made which would be subject to continuous review of the patients detained under Section 18 I propose to deal with that under the regulations.
Question put and agreed to.