: As the Minister said at the outset of his remarks, the Health (Mental Services) Bill, 1980 is the most important legislation concerned specifically with the psychiatric services which has been introduced since the Mental Treatment Act, 1945 was passed by the Oireachtas. That, of course, is a truism because, beyond minor amendments of the 1945 Act and possibly with the fairly major exception of amendments brought by the 1961 Act, virtually no legislation of any consequence dealing with the psychiatric services has been brought before the Oireachtas since the main substantive Act of 1945 which this Bill seeks to repeal in its entirety. In that context it is fair that the House should be reminded also that the Minister's party in the summer of 1977, three years ago, promised in their election manifesto at that time under the section dealing with health:
12. To undertake a complete re-organisation of the mental health service.
13. To undertake a comprehensive national programme for the mentally handicapped.
Now, three years later, the instrument that apparently it is suggested—if one is to take the undertaking given by the Minister's predecessor over the past 18 months—will give effect to those two ambitious undertakings is the Health (Mental Services) Bill, 1980, which updates the legislation of 1945 in relation to the involuntary patient, in other words in relation to the patient who is detained compulsorily. It sets out a different procedure in relation to appeals against detention and replaces in some way in a much poorer form the present legislative system which requires the inspectors of mental hospitals to carry out certain functions. I will return to the question of the replacement of mental hospitals later.
In no way can this Bill be regarded as being a complete reorganisation of the mental health services, because they are not, as so often happens, even referred to in any way in this legislation. This Bill does not in any way purport to do anything to improve the lot, regularise the position or recognise the rights in law of the mentally handicapped who are in institutions. In that way the manifesto undertakings are very far from being fulfilled and once again the mentally handicapped are ignored in legislation and in the departmental approach to the twin problems of those who are psychiatrically ill and those who are mentally handicapped. These are twin problems but they are separate and the latter problem of the mentally handicapped is not dealt with in this Bill or referred to in the Minister's speech. Later in my contribution I will deal at some length with that.
To put the situation in perspective it is no harm to quote some of the more recent published figures. In the statistical information published by the Department of Health in 1978 relevant to the health services the number of patients in psychiatric hospitals at the end of 1977 was given as 13,288 in public hospitals and 1,064 in private hospitals, giving a grand total of 14,352 patients in psychiatric hospitals. The same document gives the figure of 4,751 mentally handicapped people in special residential homes in 1976. In a document published earlier this year entitled "Services for the Mentally Handicapped" the number of places needed for the mentally handicapped at 1977 levels is estimated at 6,330, representing a shortfall of places specifically designed for the mentally handicapped of almost 2,000. In the same working party report the number of mentally handicapped people who are in psychiatric institutions was given as 2,620. I will speak again later on the position of those mentally handicapped people who should never have been admitted in the first place and who should not now be retained in psychiatric hospitals which are intended to provide for those who are psychiatrically ill rather than mentally handicapped. I will invite the House to consider the position of those 2,620 people and the situation in which they will find themselves if this Bill is enacted. Most of them could certainly not be described as voluntary patients and yet if the Bill is read in its strictest form they cannot be termed psychiatrically ill and have detention orders made against them.
It has been decided that the Bill should deal almost exclusively with the committal and detention of psychiatrically ill patients in hospitals and institutions. I accept that it is a definite decision on the part of the Minister, although it is not one with which I agree. The Minister endeavoured to some extent in his speech to defend that decision. The Bill does not try to deal with the standards of care, the level of treatment or the right to treatment which patients should have and which should be clearly enunciated in any legislation purporting to bring about a complete reorganisation of the mental health service. The Minister admits the conscious decision that the Bill should not deal with the provision of physical facilities, the improvement of existing facilities and the standard of physical facilities, buildings and other essentials to which patients in psychiatric hospitals should be entitled. If the Minister decides that the situation in psychiatric hospitals and in areas where the mentally handicapped are held is satisfactory, it is his prerogative to decide that it should not be dealt with in legislation. I cannot accept that this is the case, and I feel it would not be accepted by the majority of people operating in either of the fields that the situation is satisfactory. It has been quite obvious since the Bill was mooted and especially since its publication that there is a great unhappiness on the part of many people, specialists in the field and others with a particular knowledge because of their association with the institutions or with patients there. There is no attempt in the Bill to set out clearly in legislative form the right to care, the right to treatment, the level of treatment and the standard of facilities, yet this Bill is supposed to bring about a reorganisation of the mental health service.
I do not believe that we can consider the contents of the Bill in isolation from some of the other factors to which I have referred. Above all else there must be enshrined in any modern Bill which purports to provide in a realistic, forward-looking way for mental services the patient's right to treatment if he is psychiatrically ill and the right to treatment and care if he is mentally handicapped. These are sacred rights. It is not good enough that the Minister should suggest that because of the high level of nursing and medical skills difficulties in certain areas have been surmounted. The onus is on the legislature to provide for the rights of the individual, especially in relation to the mentally handicapped, who are least able to ensure their right to treatment and care. This Minister has decided not to face up to that problem.
Some weeks ago I described this Bill as being like a small curate's egg in a poor parish, bad in most spots and bad mainly by the sins of omission. It is bad because of the deliberate exclusion of some of the forward-looking provisions of the 1945 Act and because the emphasis is entirely on detention and custody of patients. I am not just expressing my own views or the views of my party. In relation to the restrictive nature of the Bill it should be pointed out that the psychiatric group of the Irish Medical Association have stated that the foreign observer might well gain an impression of totalitarianism and that the Bill is essentially negative and restrictive. These are people who should know what they are talking about and they also criticise the fact that there is no recognition of the citizen's right to treatment or an indication that the State will cherish all citizens equally, including the psychiatrically ill.
They go on to deal with detailed points in relation to certain sections of the Bill and deal specifically with the question of the requirement that two GPs are necessary before a patient can be referred to a centre for a reception order. They make the point, which must be valid, that in emergency cases in rural areas it may on occasion be well-nigh impossible for two GPs to attend a patient for whom an application has been made for referral to a reception centre. If one GP has been asked to examine and assess whether or not a person should be recommended for reception and does not make that assessment and a second GP is within seven days or, in the case of section 16, 24 hours, invited to make an assessment, the Bill then places the onus on the first GP to make his recommendation. Nowhere in the Bill is an onus placed on the second GP to give his opinion. Although the Bill apparently sets out to make it mandatory that a patient may only be recommended for reception on the advice of two GPs, it places, in section 19 (3) (v), a mandatory provision on the first GP who may have been invited to make an assessment but places none at all on the second GP. A situation could occur where it could be quite impossible to have the opinion of two GPs and the entire aspirations of the Bill in that regard could be defeated.
I am not suggesting that this will be the norm but I have no doubt that in certain emergency cases in rural Ireland and now, regrettably, in parts of urban Ireland where it is felt that a patient may urgently need to be referred to a centre for a reception order, examination and assessment it will be impossible to get two GPs quickly to examine that person and to give their assessment. All of us know how difficult it can be at certain times, and especially at weekends, to obtain the services of one general practitioner. I invite the House to consider how difficult it may be to obtain the services of two general practitioners in an emergency situation in rural Ireland when we bear in mind the constant complaints we hear in the House and other quarters concerning the difficulty of obtaining medical services in parts of the suburbs of Dublin especially late at night and at weekends.
I am not opposed to the concept of having two general practitioners give their views before a patient is referred for reception, but I agree with the psychiatric group of the IMA when they say that there should be specific provision that in an emergency situation the view of the second GP can be obtained after the patient has been referred for reception and is in the care of the district centre. There should have been a provision in the Bill that within a certain specified length of time after this emergency procedure a second GP would be brought in and asked to give his endorsement of his colleague's findings. As the situation is at the moment I fear that in certain urgent cases the Bill will produce a regressive effect.
When we talk about the psychiatrically ill we are talking about an increasingly complex and difficult medical problem. An example of the dimension of the problem which I heard recently is that in England approximately one in three of the hospital beds are occupied by mentally ill and four million tablets a day are prescribed and consumed by those with some nervous disorder or those psychiatrically ill. Those are frightening figures. I do not know if there are any comparative figures for this country but I fear that the trend is proportionally as high.
The Bill deals with the powers of detention and the right to appeal against custody. When we bear in mind that it does not attempt to deal with the situation of the mentally handicapped, the Bill really deals with fewer than 10 per cent of those in psychiatric hospitals. The Minister suggested that about 90 per cent—my information is that it is over 90 per cent—of all patients in psychiatric hospitals enter voluntarily. The Bill, which purports to reorganise completely the mental health service, in fact deals with one in ten of those who are at present in psychiatric hospitals or those likely to seek admission to such hospitals. It must therefore, be regarded as falling far short of a complete reorganisation of the service or a recognition of the extent of the problem in the community.
I am very unhappy that the rights of the voluntary patient are not enunciated or dealt with at any length. The Minister's remarks that the emphasis should continue to be on patients entering voluntarily for treatment, with which I agree entirely, are at odds with the Bill, which deals in two lines with voluntary patients. There is no other reference to the voluntary patient, which is very regrettable.
In relation to more than 90 per cent of the voluntary patients occupying beds, there is a provision in the 1945 Mental Treatment Act that if a voluntary patient opts to discharge himself from hospital he may only do so after 72 hours. I thought that that provision was being repealed without the full knowledge of the implications. I was taken aback when the Minister in his opening contribution said that he was proud to abolish that restriction. When we talk about recognising patients' rights we should also talk about recognising the right to ensure their safety.
Many of the voluntary patients we are now talking about can decide to discharge themselves at a time when they are receiving very heavy medical treatment and may be under the influence of drugs. They may decide to discharge themselves at a time when the effect of those drugs is to make them have an obsessive distrust of the surroundings of the hospital. Those are recognised effects of the treatment those people are receiving. I understand that the profession assumed that that was the reason for the 72 hour delay enshrined in the 1945 Act. If a voluntary patient under heavy medication says "I am a voluntary patient and I wish to leave" he is not allowed to leave for 72 hours so that the effect of the drug he is receiving or the sedation he is under will have worn off. In addition, there is an opportunity to notify his relatives and they can come to ensure his safety if he discharges himself. This also ensures that when the effect of the drug has worn off the patient may more rationally discuss with his medical advisers if he should discharge himself from the hospital.
I believe that that provision was a sensible one and I cannot accept, under any circumstances, that 35 years later we should be seeking to scrap that and to suggest that somebody who, to put it in crude layman's language, is drugged up to the eyeballs can up and out of a hospital and the medical people who are charged with his care can do nothing about it. The only effect that this provision can have is that certain people, who under normal circumstances would realise that they were not well enough, will opt to discharge themselves and, under the influence of those drugs or sedatives, they may either consciously or unconsciously do themselves damage when they discharge themselves without notice and without warning from the hospital. I can only say that the omission of the waiting period in relation to voluntary patients, a reasonable waiting period of 72 hours, is entirely to be regretted and cannot at all be represented as an improvement on the existing situation. I do not accept the Minister's statement when he says that it is argued that such persons are potentially harmful to them selves or others but that he finds it difficult to accept that this problem is of such magnitude that it cannot be taken care of by the application of psychotherapy until the particular tension has subsided in the relatively few cases which he would expect to arise. The man does not understand the problem at all. If the patient opts to leave, the doctor has no right under this new legislation to apply the principles of psychotherapy. He must allow the patient, forthwith, drugged to the eyeballs, to walk out into a busy city centre street full of traffic and hazards. The omission of the 72-hour limitation will see very serious and perhaps fatal consequences to the health of the voluntary patients. I cannot understand the Minister's suggestion that he is extremely reluctant to impose statutory limitations which might serve to discourage patients from availing themselves of treatment voluntarily. Over 90 per cent of psychiatric patients at present are voluntary patients and at present the statutory limitation of 72 hours before they can be discharged applies. No one is suggesting that the Minister should impose a statutory limitation of 72 hours. All anybody is suggesting, including the people in the profession, is that the Minister should have enough good sense to retain it. To suggest that because of its being imposed people might be less prepared to undergo voluntary treatment is absolutely ludicrous when we realise that more than nine in ten of those who are in psychiatric hospitals and receiving care are voluntary patients at present and that that limitation applies in relation to them. I certainly will be tabling an amendment to reintroduce the provisions of the 1945 Act on Committee Stage.
Another of the very contentious areas that have been referred to quite extensively since the publication of the Bill is that there has been no attempt made to define the term "mentally ill" or the term "mental disorder". I accept that any such definitions are extremely difficult but nonetheless if these two terms had been defined this might have had the effect of helping to bring the mentally handicapped, to whom I referred earlier, within the scope and the provisions of this legislation. It is not impossible. I accept that it certainly may be difficult but it should not be impossible to make some attempt at defining those terms. In the United Kingdom Mental Health Act of 1959 mental disorder is defined in section 4 (1) as mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind. It says that mental disorder shall be construed accordingly. Subsection (2) went on to say that severe sub-normality means a state of arrested or incomplete development of mind which includes sub-normality of intelligence and is of such a nature and degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation or would be so incapable when of an age to do so. So the British Act of 1959 quite neatly, in two subsections, made an attempt to define what mental disorder was and it did quite clearly distinguish between psychiatric illness and mental handicap. This Bill, through its failure or inability to make any attempt at defining either of the problems, compounds the difficulty in relation both to the psychiatrically ill and those who are mentally handicapped and compounds the difficulty for those practising in the field or those who might have to adjudicate in a court of law because it uses the term "mental disorder" without making any attempt whatsoever to define it.
There are other areas of omission in the Bill that have caused upset and disappointment to many of the people who had in some cases rather eagerly looked forward to the introduction of this measure. There has been for some time past an expression of feeling that the rights of either the psychiatrically ill or the mentally handicapped should be represented on visiting committees or on management boards of institutions either by the election or appointment of patients or, in the main where that might not be practicable, the appointment of parent or guardian representatives or the appointment of people such as social workers or health board representatives elected or appointed by the parents or guardians of people who are in institutions to represent them on management boards and on visiting committees. It is again regressive that there has been no attempt made in this legislation to involve on a statutory basis the parents, the guardians, the representatives of patients, especially those patients who are mentally handicapped and who are long-stay or permanent residents of institutions. It is very regret table that that situation of the closer involvement of the families of long-stay patients has not been tackled in a statutory form in this legislation and once again it is an indication that the Bill itself is a very long way away from being a complete reorganisation of the mental health services.
I agree with one aspect of the Bill and that is the manner in which the regulations in relation to both the public and private hospitals have now been made uniform so that the standards of admission, the manner of admission and the conditions governing detention, right of appeal and review are equal for those in private institutions and those in public institutions. That certainly is to be welcomed. In so far as the Bill achieves that objective I am in agreement with it.
In relation to voluntary patients—I referred to their pending right to discharge themselves on the spot—I want to ask what would be the situation in relation to a voluntary patient whose condition changes to such an extent that it is felt in the hospital it is now necessary that he or she be detained or restrained in the institution. As far as I understand from the provisions of this Bill, a person cannot become hospitalised in an involuntary capacity unless he or she has first been referred by two registered medical practitioners, in other words, by two GPs. But if a voluntary patient is already in an institution and his or her condition changes to such an extent that he or she is possibly a danger to himself or herself, or to the health or safety of others, under the provisions of this Bill can that voluntary patient be changed into an involuntary one without their first discharging themselves and undergoing the risk to their own health and safety and that of others? I cannot see that the Bill deals with that consequence at all.
I accept that the 1945 Act dealt separately with the situation of minors from that of adults. All of those provisions of the 1945 Act are now to be repealed. There is no reference whatsoever in this Bill to the specific situation of children and children at risk. From the way this Bill is worded I assume that the provisions in relation to referral by GPs, reception orders and extension orders relate equally to children as to adults. It is important that the Minister clarify first of all that the provisions of this Bill will relate to children without the restrictions and the rights of parents which were enunciated in the 1945 Act, not referred to in this Bill.
I am disappointed the Minister did not deal with that important point in his opening remarks. Even if that be the situation I should have thought that the rights of children should be specifically included, that the right of a child to receive appropriate psychiatric treatment should be clearly enunciated in legislation. I do not see how the law will change simply by the removal of the provisions in relation to parents in the 1945 Act. As the law stands at present parents can withdraw a disturbed child from a treatment situation or refuse professional treatment for a child under 16 years of age. By the removal of those clauses from the 1945 Act I take it that the Minister is assuming that the provisions of this Bill will allow for a disturbed child who is in need of treatment and whose parents are not agreeable to be referred to a reception area by some other authorised person. The Minister should have made clear whether or not that procedure can be followed through without possible legal consequences in the courts in relation to the rights of parents or a parent in connection with his or her child, as opposed to the needs, safety and health of the child as viewed by the State. For that reason I am disappointed that there was neither reference to the rights of the child specifically in the Bill nor in the Minister's opening remarks.
There is another situation which should have been dealt with in this Bill. In certain cases if a disturbed or psychiatrically ill child has received attention in an institution and is now regarded as being in a condition in which he or she can be returned to a home environment there can be certain circumstances in which the parents refuse to accept that child back into its home environment. I should have thought there was need to make specific provision for that eventuality. If for any reason—and there could be a multiplicity of reasons—a parent will not take back a child who has received treatment, a child whom the medical advisers wish to discharge into the community, then there should have been specific provision in the Bill for the fostering and care of that child in some place other than the psychiatric centre involved.
Perhaps separately from the procedures that have been enunciated here whereby a patient now can be referred by an applicant approaching two general practitioners who then refer the patient to a reception area where a retention order is made for 48 hours after which that patient can either be discharged or a retention order extended, in the first case for a period of three months or, in other cases, 12 months, there ought to have been specific reference to the situation of addicts and alcoholics. In very many of such cases they need merely to be brought into a detoxification unit where, after that process has been completed, the medical advice is that the work with them normally is much better carried out with their voluntary co-operation. This Bill appears to have incorporated the particular problems of addicts and alcoholics into the general question of the psychiatrically ill, which is not the most welcome of moves.
Had we been attempting to provide comprehensive legislation for those who are psychiatrically ill, emotionally disturbed or handicapped, then there should have been specific sections of this Bill devoted to the problems of people who quite frankly take overdoses of drugs or alcohol and who are in need of short-term treatment. These people in many ways are different and in a different category from people who are perhaps psychiatrically ill and in need of longer periods of detention.
I should like to speak now about the setting up of the review body which will examine at regular intervals the continued detention or otherwise of involuntary patients, which I welcome and in respect of which I will voice my views in a few moments. I am not satisfied that the transfer to the review body of certain of the obligations now placed on the inspector of mental hospitals warrants the removal of some of the existing powers vested in that inspector. At present the inspector of mental hospitals has an obligation to visit institutions on a minimum number of occasions. He may visit any institution at any time and examine any patient in that institution. He has an obligation to visit all the institutions at stated intervals and an obligation also to visit the Central Mental Hospital in Dundrum twice a year. Those provisions are now to be changed. Section 36 of the new Bill suggests that a designated medical officer of the Minister shall visit and inspect once in every year special district and registered psychiatric centre and shall report to the Minister on his visit. In other words, the existing provisions whereby Dundrum must be visited twice a year are to be replaced by a provision whereby it is to be visited now only once annually.
However, there is a much more fundamental omission from section 36 which I shall not accept and which I do not believe that the House will accept, or that the public will want to see accepted. The obligation at the moment is on the inspector of mental hospitals to provide an annual report to the Minister on the state of those hospitals and on his performance of his duties during the year. The fact that this has not been done in a very up to date fashion need not be gone into. The Minister mentioned that he intends publishing the inspector's reports for, I think, the last three years in the relatively near future. There is one other obligation imposed by the legislation, apart from the report being provided to the Minister, and it is that the inspector of mental hospitals' report must be laid before this House and the Seanad, to be available for inspection by Members of this House and, consequently, made available to the public. If we let section 36 as presently drafted go through the only person to get a report on the state of the mental hospitals will be the Minister. I am not prepared to see some of the restricted and limited powers of this House removed and have that described by any Minister as a progressive move and I shall be entering an amendment to that effect on Committee Stage also.
I am being fairer with the Minister than he was with the House. He merely said that, following submissions made to him since publication of the Bill, he intended now to introduce a number of amendments before Committee Stage. He outlined, as an example, what one such amendment would be. I should have thought when a Minister published a Bill which received such widespread criticism that before it came for debate in the House he must accept that amendments are necessary, the least he might have done, out of courtesy to the House, so that the Members could have a full picture of his proposal and so that we might have shortened the debate on Second Stage and helped those of us who had to draft amendments for Committee Stage without the assistance of the public service, would be to outline specifically the areas in which he intends entering Government amendments in relation to this Bill.
This is the Minister's first main piece of legislation and he probably did not conceive it entirely himself. There had been references made to it by his predecessor over a protracted period. I suggest to the Minister that in future if he has any legislative proposals and if he realises at the beginning that the proposals are faulty in part, he amend his hand by withdrawing the Bill and re-entering it with the amendments so that the House knows where it stands at the outset. If he decides to table Government amendments before Second Stage debate starts, he should have the courtesy to tell the House what they are about. As already said, I intend entering an amendment to see to it that this designated medical officer who is to replace the inspector of mental hospitals is required to table his report before the Oireachtas.
I should have mentioned that under the provisions of the 1945 Act the inspector's report is required not only to be laid before each House but a copy of it to be sent to the President of the High Court. The Minister has apparently decided that the President of the High Court is not worthy to receive that document in the future since he has been omitted from the new legislation. Is that progress? The present provision is that the officer gives a report to the Minister and includes in it a general account relating to such year of the administration of the asylum and of the care, welfare and treatment of the inmates thereof—this refers to Dundrum. That obligation has not been placed on the designated medical officer except in so far as he must pay a visit to all the centres, including the special centre which Dundrum will be. I would not call that progress. I should not have thought that that obligation in relation to the Central Mental Hospital at Dundrum should not be removed, especially in view of the report issued earlier this year by Justice Henchy's committee in relation to the detention, care and treatment of persons who had criminal charges laid against them and who were found to be mentally ill, without something to replace it.
The designation of the medical officer is, I assumed, being made by the Minister. The section does not qualify this, but I suggest that if this designate medical officer is to operate to the best and highest level of efficiency he should have some degree, or qualifications in psychiatry and, preferably should have some working, practical, day-to-day experience in psychiatry to keep abreast of the developments and keep in touch with his colleagues in the profession and make a balanced, day-to-day and modern assessment of the facilities being provided in centres and, where necessary, report on the lack of such facilities. Section 36 also needs amendment in such a way as to specify certain minimum qualifications in relation to that designated medical officer. The mere description of the officer as a medical officer is not sufficient.
I mentioned briefly at the outset that the mentally handicapped have not been referred to in any way in this legislation, which is absolutely unsatisfactory. The Minister did not refer to the mentally handicapped, neither does the Bill. If specific residential centres for the mentally handicapped were to be designated under the terms of this Bill that would be to some extent an improvement, but would be, on the other hand, an indictment of the Department of Health that they are not prepared to recognise and distinguish the definite division between the psychiatrically ill and the mentally handicapped. A separate part should have been included in this Bill dealing with the rights of the mentally handicapped to treatment, therapy and care, and setting out certain provisions and safeguards in the law for the mentally handicapped. That is not in the Bill and, to the best of my knowledge, it is not in any legislation old or new.
It is no harm to quote the declaration on the rights of mentally retarded persons adopted by the United Nations which says that whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way, or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse; this procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to a higher authority.
This Bill purports to modernise completely the mental health service. It purports apparently to revolutionise the service for the mentally handicapped, and they are not referred to in it. Their rights are not referred to. Their position under the legislation is less than clear.
As I said earlier, on the latest figures 2,620 people who are mentally handicapped, on the Department's own estimate, are in psychiatric hospitals. Virtually none of them is a voluntary patient because most of them have not got the capacity to pronounce themselves as desiring voluntary treatment. Yet they do not fall within whatever definition has been excluded as being mentally ill. They come under subsection (2) of section 4 of the United Kingdom 1959 Act as having a mental disorder through their capacity not being developed.
Consequently those who care for the mentally handicapped on a professional basis are in a quandary as to whether they are acting inside or outside the law when they detain mentally handicapped people in institutions, for benevolent reasons of course. Apparently within the law specific authority is not given to those who care for mentally handicapped patients to detain them. Those patients cannot opt for voluntary treatment, and the law does not appear to specify how they can become involuntary patients. This is supposed to be a modern Bill and it does not refer to the mentally handicapped in any way.
Worse again, what is the situation in relation to the 2,500 mentally handicapped patients who are in existing psychiatric institutions? Under the provisions of this Bill clearly the existing psychiatric institutions are to be designated as registered psychiatric centres. Almost all of those 2,500 mentally handicapped patients are not voluntary patients, and almost certainly they are not psychiatrically ill. They are mentally handicapped. It is very questionable whether the consultants, psychiatrists and their staffs in the psychiatric centres have the right to make retention or detention orders in respect of those mentally handicapped people.
It is to the shame of the Government and this House and—let us be clear about it—the general public that the need to update the law and to set out the entitlement of the mentally handicapped were not perceived as being of sufficient importance to be included in the Bill. It is to the shame of the public because they do not want to know about the mentally handicapped. It is not an issue in the forefront of the public's consciousness. They do not really want to hear if there is a problem in relation to the mentally handicapped. It is specifically a shame in relation to the Government because there is an obligation on them to know, to provide and to enshrine in legislation the entitlement and the right of those who are unable to negotiate for themselves. Almost all developed countries have laws designed to protect the mentally handicapped individual from the consequences of his failure to achieve full intellectual development.
Most people who are mentally handicapped can be treated informally and a number of them can be treated in the community, but there will always be a small proportion of mentally handicapped individuals whose handicap makes them a potential danger to themselves but, because of their handicap, they do not realise that they are in need of treatment, care and protection. Those are the groups that should be catered for specifically in legislation so that they can be admitted, detained, educated and cared for in the appropriate way until they can again take their place in the community or, in certain cases, if necessary, on a permanent basis.
It is estimated that probably 3 per cent of the population are mentally handicapped. Something like 75 per cent of that 3 per cent are in the category of being mildly mentally handicapped. In other words, three out of four of those who are mentally handicapped are in the official designation of being mildly mentally handicapped. The other one out of four is divided among the categories moderately handicapped, severely handicapped, or profoundly handicapped.
I want to talk specifically about those who are mildly handicapped, because they are the people who are most likely to be in the community and who because of their handicap are most likely to fall foul of the restrictions and the norms set down for ordinary individuals. They are individuals who because of their lack of judgment or self-control cannot deal with the challenge of modern everyday life, and they can become involved in juvenile delinquency, petty thieving and vandalism.
I have already said they are the sort of people who do not appreciate they are in need of treatment. The difficulty about them is that, if they go or are referred to the existing psychiatric hospitals or units, the psychiatrists running those units will announce that these people are not really their responsibility, or their charge, or their care, because the psychiatrists in the existing institutions, probably quite correctly, argue that their job is to care for the psychiatrically ill and that because this patient has a mental handicap, albeit of a mild degree, he should be treated by the brothers in the same profession who are specialising in the treatment of the mentally handicapped.
Those who are specialising in the treatment of the mentally handicapped will then argue that they do not have the power to compulsorily detain that patient to give him the treatment which is necessary. Here we have a Bill that does virtually nothing but set out the compulsory powers, the right to detain patients who are psychiatrically ill. Those powers, in one form or another, are there already in legislation. I do not disagree that they need to be updated but, when we have a specific effort being made in relation to the mentally handicapped, no attempt is made by the Minister to deal with that situation.
At present if a midly mentally handicapped person enters a centre for treatment and opts to leave, the people operating the centre have no legal rights to detain him for his own safety and health and in order to complete his treatment. It could be argued in those circumstances that not only is that person deprived of his freedom—he only has freedom when he has the ability to exercise it properly in the community and because his doctors are not allowed to complete the treatment they cannot see him delivered back to the community with the ability to live his life to the full—but he is also deprived of the protection that this Bill is enshrining for the person who is psychiatrically ill. When this Bill is passed it will ensure that a person who is so psychiatrically ill that he is reluctant or refuses to admit himself voluntarily for care, through the intervention of concerned relatives, health board officers, gardaí or other people, can be involuntarily referred for treatment and receive that treatment. That protection is being sought for the psychiatrically ill person who is not prepared to admit himself voluntarily but the Bill does not provide that same right and protection for the mildly mentally handicapped patient who has not the perception to admit himself voluntarily for treatment. Surely the person suffering from mild mental handicap is entitled to the same rights in legislation as the person who is psychiatrically ill?
In relation to the other one in four in the mental handicapped category—those who are moderately, severely or profoundly handicapped—the vast majority are institutionalised. I want the Minister to explain to the House in what capacity and under what legislation they are institutionalised. I do not think they can be described as voluntary admissions. Certainly the profoundly mentally handicapped person from the time of handicap—whether from birth or as a result of an accident—was never in a position to have enough perception voluntarily to admit himself for treatment. As far as I understand the situation the legislation does not provide that he can be detained involuntarily. Many other developed countries have specific provision in legislation to cater for that kind of person and in most of those countries it has been done by conferring on some other person or authority the status of guardian. The guardian is then obliged to look after the rights of that handicapped person who cannot defend himself. The obligations of the guardian and his right to request doctors to examine the patient and to decide to detain him compulsorily are enshrined in legislation.
I do not know why I have to explain all of this to the Minister considering how much of this Bill is copied from the UK Mental Health Act, 1959. I cannot understand why all the sections relating to the guardianship of the individual that were enshrined in that legislation 20 years ago have not been included in this Bill. The UK Act provides in great detail for the appointment either of relatives—in the normal case that would be the parents, brothers and sisters of the person—and they have certain rights and obligations. It also provides that where there are no relatives or where the relatives are not capable of carrying out the duties of guardians adequately the obligation devolves, under the British Act, on the local authority. The equivalent here would be that the guardianship responsibilities would be assigned to a health board or some other statutory authority.
I should have thought that a Bill that purported to update the law in relation to services for the mentally ill would have considered compassionately the situation in relation to the mentally handicapped adults who cannot make decisions for themselves and that now there might have been an attempt to set out the situation in relation to them and to ensure that responsible people would have a legal responsibility to act as their guardians. I should have thought that provisions in relation to property and finance that might fall through succession to be in the ownership of the mentally handicapped might have been specifically catered for in legislation, as has been done in Britain and in other countries.
It must always be the underlying worry of any parents who have a mentally handicapped child that when they pass on and when the child reaches adulthood— and with modern medicines more and more mentally handicapped people are living virtually the full lifespan—the situation for their child will be grave and unclear. Nobody appears to have a specific responsibility for that child who almost certainly will be in an institution. The Minister may argue—and I will not disagree with him—that the people running an institution that provides a long-term care for mentally handicapped people are performing a magnificent task and have assigned voluntarily to themselves the role of guardians. In the main that service has been operated by the voluntary agencies and religious institutions but nevertheless the prime obligation is on the State to set out the entitlements of those people and ensure that they are met. The British did it in the Mental Health Act, 1959. Section 33 (2) dealt with the procedure for reception into guardianship. It stated:
A guardianship application may be made in respect of a patient on the grounds
(a) that he is suffering from mental disorder, being—
(i) in the case of a patient of any age, mental illness or severe subnormality;
(ii) in the case of a patient under the age of twenty-one years, psychopathic disorder or subnormality; and that his disorder is of a nature or degree which warrants the reception of the patient into guardianship under this section; and
(b) that it is necessary in the interests of the patient or for the protection of other persons that the patient should be so received.
The section further states:
The person named as guardian in a guardianship application may be either a local health authority or any other person (including the applicant himself); ...
The section also sets out the obligations of the guardian, the length of time for which the guardianship will apply and it states that it will come up for renewal at certain periods. Section 35 relates to regulations as to guardianship and to the care and treatment of patients. It makes provision for patients to be visited and it lays down the obligations of the guardian.
The British enacted that legislation in 1959. We went a small way towards it in 1965. The Minister may have heard of the report of the Commission on Mental Handicap published in 1965. At page 159, chapter 13, under the heading "Legislation", it says:
There is no special legislation in Ireland dealing with mentally handicapped persons; they are dealt with under the general legislation relating to health and education (see paragraph 32). We are of opinion that the mentally handicapped should, as far as possible, continue to be dealt with under the legal provisions which apply to other persons.
I agree.
Most of our recommendations can be implemented under existing legal provisions, but there are certain aspects of care for which special provisions are necessary.
Again I agree. In paragraph 199 they set out the obligations which they believe should be on the health authorities for diagnostic assessment centres and advice. Paragraph 200, pages 159 and 160, deals in detail with the question of guardianship and says:
Some of the mentally handicapped living in the community will, in their own interests or in the interests of others, require guidance, supervision and control to a greater extent, or for a longer period, than will normal persons. We consider that, to cater for such persons, there should be established a system of guardianship, equivalent to an extension of parental rights, under which guardians would exercise control over mentally handicapped adolescents and adults, as if they were still children under the age of 16 years. Guardianship should not, however, include the power to have a mentally handicapped adult compulsorily admitted to or detained in an institution.
In the following paragraph they refer to specific powers which they suggest in relation to that.
We suggest that health authorities should be empowered to issue guardianship orders, in appropriate cases, to parents, relatives or other persons who, after investigation, are accepted as suitable by the health authority. The guardianship order should impose on the guardian the responsibility of arranging for the training, occupation and employment of the mentally handicapped person concerned and for his recreation and general welfare, as well as for the promotion and safeguarding of his physical and mental health. In cases where no suitable parent or relative or other suitable person is available the health authorities should be empowered to appoint as guardian one of its officers who has been approved by the Minister for Health as appropriate for that purpose. A request for the appointment of a guardian should be accompanied by medical certificates from two qualified medical practitioners——
and this was back in 1965——
at least one of whom should be recognised by the Minister for Health as having experience in the diagnosis and treatment of mental handicap. The medical certificate should set out clearly the reasons why guardianship is considered desirable. Guardianship Orders should be granted for limited periods not exceeding five years in any one period.
The commission had obviously read the British 1959 Act as well.
An Appeals Tribunal (representative of medical, legal and socio-administrative interests) should be established to consider appeals against Guardianship Orders granted by health authorities. The Appeals Tribunal should be nominated by the Minister for Health. A person aggrieved by the decision of the Appeals Tribunal should be at liberty to have the transcript of evidence on which the decision of the Appeals Tribunal was based, submitted to the High Court which could quash or confirm the decision of the Appeals Tribunal as it thought fit.
I may be wrong but I do not know of any such guardianship procedure in relation to the moderately or severely mentally handicapped which has been enshrined in legislation since that time.