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Dáil Éireann debate -
Thursday, 16 Oct 1980

Vol. 323 No. 2

Health (Mental Services) Bill, 1980: Second Stage .

: I move: "That the Bill be now read a Second Time."

The Health (Mental Services) Bill, 1980 is the most important legislation specifically concerned with the psychiatric services which has been introduced since the Mental Treatment Act, 1945, was passed by the Oireachtas. I should say, however, that the impact of the various Health Acts upon the administration of the psychiatric services has been significant in the process of integrating psychiatric and general medicine, as indeed, was acknowledged in the report of the Commission of Inquiry on Mental Illness in 1966.

The provisions made in the Mental Treatment Act, 1945, in regard to the reception and treatment of patients remain basically the same as when they were introduced. I should, however, make it clear that the provisions of this Act were enlightened for their time—in particular the provision made for the reception of persons for treatment on medical certification, without the intervention of a judicial authority, was a most advanced change which has subsequently become the accepted procedure in many other countries.

In the course of the 35 years since the introduction of the Mental Treatment Act, 1945, there have been many changes in the theory and practice of psychiatric medicine. Such changes have come about in part by new therapies which have been made possible by the various chemo-therapeutical discoveries made and also by a deeper understanding of the aetiology of psychiatric illness and the needs of the mentally ill. The emphasis in treatment has shifted significantly, one might almost say dramatically, from segregation and long term detention towards a modern concept of treatment and speedy rehabilitation in informal settings which are as free and unrestricted as individual circumstances permit. Many patients are now being treated successfully while living at home. Community services such as out-patient clinics, day hospitals, hostels, family care and domiciliary consultation have been provided and developed. In addition, the psychiatric services have the capacity to provide intensive in-patient treatment, in many cases in short-term acute units in, or in association with general hospitals.

There is a fear of mental illness in the community which is deep rooted. The spread of tolerance, understanding and involvement can only be a gradual process. There has nevertheless been a steady increase in appreciating that mental illnesses are illnesses, that people recover from them and that the process of recovery is influenced by the help and understanding shown to the psychiatrically ill by those with whom they come into contact in the course of their normal living. The health boards, various voluntary agencies, particularly the Mental Health Association of Ireland, have contributed much to this growth in popular understanding of the problems of the mentally ill. The Health (Mental Services) Bill, 1980 will advance the development of the community's care and concern for mental patients by bringing the legislation which governs the services which are provided for them into conformity with modern thinking particularly in the area of admission, discharge and safeguards against improper detention.

For the purpose of considering the Bill it divides readily into three areas of concern: firstly, provisions which are concerned with the registration and supervision of psychiatric institutions. Secondly, provisions which are concerned with admission and discharge procedures in psychiatric institutions. Finally, provisions which protect patients against unnecessary detention and which relate to issues such as consent to certain treatments.

So far as institutions are concerned, the Bill provides that existing health board psychiatric institutions will be regarded as district psychiatric centres, that the Minister for Health may, at the request of a health board, designate such centres and areas to be served by them. The Minister will have the power, after consultation with a health board, to cancel the designation of a district psychiatric centre. The Bill makes it an offence for any person other than a health board to operate any premises for the detention of persons suffering from mental illness unless it is approved and registered by the Minister in accordance with regulations which he is empowered by the Bill to make. It also provides the Minister with power to refuse or cancel the registration of psychiatric institutions and for appeals against his decision.

The provisions are simpler than those in existing legislation and are designed to bring the approach to these institutions into line with that obtaining for other categories of health institutions.

So far as admission and discharge procedures are concerned, the Bill essentially simplifies the situation by providing for only one category of detained patient. The criteria for the detention of such patients are that the person is suffering from severe mental disorder, that detention and treatment are necessary in the interests of the person's health and safety and that he is not prepared to accept treatment or is not suitable for treatment otherwise than as a detained patient. The Bill provides that an application for the reception of any person in a psychiatric centre shall require the written recommendation of two registered medical practitioners. This provision brings the procedure for detaining a person in a public psychiatric institution into line with that which obtains for private institutions at present.

Section 13 of the Bill specifically indicates that nothing in the provisions of that part of the Bill dealing with the admission and discharge of patients should be read as preventing or discouraging any person from presenting him self voluntarily for treatment. This emphasis has been specially laid in the Bill to encourage the development of the trend which has, at the last count, resulted in around 90 per cent of admissions to mental hospitals being undertaken voluntarily.

The Bill makes a radical departure from the existing situation in the area of the provision of safeguards against the unnecessary detention of persons. It proposes to establish a national system of review boards.

In present legislation, most of the safeguards in this area are vested in the inspector of mental hospitals, reporting to and directed by the Minister. It can be argued, however, that a system based on one person is neither satisfactory nor acceptable to contemporary opinion. Given the nature of the judgements which the inspector must make, the onus of responsibility on him is very great. The review boards will function as a broadly based, independent appeals system subsuming those duties of the inspector which concern the investigation of appeals made against detention.

It is proposed in this new system that either a patient or a relative will be entitled to require a review board to investigate the propriety of the detention of that patient. The same right will be accorded to the Minister, the President of the High Court and the Registrar of Wards of Court. Any other person can also seek the intervention of a review board but in this case investigation may take place at the discretion of the board. The review board will have the power to direct the discharge conditionally or unconditionally of a patient on foot of their investigation. If the review board consider that the person is properly detained there is a right of appeal to the Minister given to the applicant by subsection (5) of section 39.

Apart altogether from the function of dealing with individual appeals, the review board will also be responsible for an automatic review of those persons in long term detention. Every such patient will have his case investigated biennially.

The creation of the review boards will mean that much of the work of the holder of the office of inspector of mental hospitals will be transferred to them and therefore the need for that office will largely cease. The Bill provides that the task of visiting and inspecting mental hospitals will be assigned to a medical officer of the Department specially designated by the Minister for Health for that purpose. Incidentally, I should at this point say that it is my intention to publish the report of the inspector of mental hospitals for the years 1977-1979 in the next month or so.

When I circulated this Bill I made it clear that I would be glad to have any comments upon it, which I undertook to consider most carefully. I am glad to say that I have received a great deal of constructive and enlightened comment and as a result I will be circulating a number of amendments before Committee Stage is taken. I will, for example, be amending the provisions of section 32 of the Bill to permit the discharge of a person by an authorised medical practitioner—in other words by a consultant psychiatrist. Such a provision would be consistent with the general philosophy of the Bill in that the decision to receive a patient is made by the consultant psychiatrist and not solely by the medical officer in charge.

The Bill has, however, raised a number of major issues upon which I would like to indicate my position and, at the same time, invite Deputies' comments on them. I am aware that a number of people are somewhat disappointed that the Bill does not contain a specific reference to levels and standards of service provided in psychiatric hospitals. In the drafting of this legislation it was felt that to attempt to give a statutory form to the quality of the care and treatment which patients should receive would be a meaningless exercise since it is so dependent on the quality, training and professional dedication of the medical and nursing staff. I would argue that it is not possible to legislate in an effective way as to the detailed day-to-day care which any patient should receive. Essentially, legislation can never be expected to serve as a substitute for the proper and conscientious discharge of the duties and obligations which fall on the caring professions.

It was decided for these reasons that no useful purpose would be served by the attempted provision in the Bill of specific standards of care. The Health Acts with which this Bill must be read impose on health boards the obligation of providing satisfactory levels of services. There are throughout the country many examples of where the interplay of administrative skills and medical and nursing leadership has served to overcome in an extraordinarily effective way the limitations imposed by very old and outdated buildings.

A number of interests have questioned the wisdom of not requiring that voluntary patients be obliged to give, say, 72 hours' notice of their intention to leave hospital as is the case at present. It is argued that such patients are potentially harmful to themselves or others. I find it difficult to accept that this problem is of such magnitude that it cannot be taken care of by the application of psycho-therapy until the particular tension has subsided in the relatively few cases which I would expect to arise. In any event, I am extremely reluctant to impose statutory limitations which might serve to discourage persons from availing themselves of treatment voluntarily. If a person who would otherwise go freely for treatment fears that he can be kept in, then he simply will not go.

The general procedures relating to applications to registered medical practitioners for a recommendation for the reception of a person as a detained person have not been the subject of criticism. Many bodies and individuals have, however, objected to the provision which requires a recommendation to be supported by two doctors. They claim that it could prove difficult in practice to obtain the services of two doctors for this purpose without undue delays arising, particularly in some of the more sparsely populated rural areas. This point has been examined closely but the situation on the ground does not support these claims. Analysis has shown that access to two doctors is not a real problem even in the more remote areas. Further, it should be noted that this requirement is not new as the recommendation of two doctors is already required under present legislation where a patient is being admitted to a private institution. There is no evidence that this provision has caused difficulty in the past.

In my view the requirement that two medical practitioners should sign the recommendation for detention is necessary to underline how serious such a step is and to protect the essential rights of the individual to careful and balanced assessment.

The statutory composition of the review boards as proposed has given rise to an amount of criticism. The boards will consist of three persons appointed by the Minister, namely a psychiatrist, a lawyer and a third person who is not a member of the medical or legal professions. Criticism has been advanced on the grounds that medical opinion might be overruled where the lawyer and lay person both favour the discharge of a patient while the consultant in charge of the case and the psychiatrist on the review board recommend continued detention. This seems to me to postulate a very abstract and unreal situation. I cannot seriously believe that highly qualified psychiatrists would not be able to articulate their opposition to the discharge of a patient in a manner which would convince their non-medical colleagues. In practice, of course, the non-medical members of the board will have the fullest regard for the professional opinion of their medical colleague and also to the opinion of the medical consultant in the psychiatric centre where the patient is detained. The composition of the review board as proposed guarantees an independent and balanced appeals system. I feel that to alter this system would be a regressive step and in the long term would not prove to be in the interests of the patients. There is, I should point out, provision for appeal to the Minister where a review board rules that continued detention is justified.

The Medical Council and a number of other medical interests have been critical of section 44 of the Bill. The section proposes that the Medical Council, with the Minister for Health's consent, may prescribe rules relating to certain forms of therapeutic treatment. It is important to note that the powers given to the Medical Council in this regard are of a discretionary nature and do not impose an obligation on them to make such rules. This provision is in keeping with the philosophy that any profession should in the first instance be responsible for the discipline of its own members. The criticism of the provisions of section 44 has rested mainly on the grounds that psychiatric medicine was being subjected to a unique form of supervision and intervention not extended to other medical practice. It was also argued that the Medical Council would not be in a position to enforce rules specifying conditions to be complied with, given the vast range of different individual cases with which the consultant psychiatrist must deal on a day-to-day basis. I find the opposition to the provision puzzling. The majority of patients with whom a psychiatrist deals must inevitably by the nature of their illness have a diminished capacity to assent fully to the forms of treatment proposed. This puts the psychiatrist in a difficult situation and I would have thought it proper that in the event of public controversy arising in relation to a specific form of treatment it would have been valuable for the Medical Council to have the powers envisaged in section 44. Given the universal acknowledgment of the high standards of professional ethics prevailing in the medical profession in this country, it is not envisaged that recourse to this provision will be frequent.

In commending this Bill to a Second Reading by the House let me say that I will, as I have previously said, welcome constructive criticism of it and consider suggestions for its improvement very carefully.

: 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.

: I will explain that when the Deputy finishes.

: I might not have had to mention this if the Minister had referred to the mentally handicapped when he started. The 1965 report refers to compulsory admission and detention and sets out the manner in which the commission visualise the vast majority of mentally handicapped who require residential care being admitted informally, as they do at present. The commission say:

There will be a small number of adults, however, for whom powers of compulsory admission and detention will be necessary, either in their own interests or in the interests of other persons. We consider it essential that provision, similar to that in the Mental Treatment Acts, should be made for such compulsory admission and detention. The power of detention should be limited in the first instance to one year, but it should be renewable, thereafter for periods not exceeding five years.

They referred to sheltered employment in paragraph 202, registration of residential centres in paragraph 203, powers of inspection by health authorities in paragraph 204, remands for special centres in paragraph 205 and wards of court in paragraph 206. They define "mental handicap" in paragraph 207:

There is at present no legal or statutory definition of mental handicap. We would regard such a definition as desirable in any event, but we believe that the proposals made in the preceding paragraphs will necessitate such a definition.

Here we are in 1980 and in the Health (Mental Services) Bill, 1980 there is not even an attempt made to define "mental illness" or even the term used in the Bill "mental disorder". If the Minister dares to suggest he assumes that at the appropriate time somebody else will decide that the term "mental disorder" ranges from those who are temporarily psychiatrically ill to those who are seriously disturbed, or from those who are mildly mentally handicapped to those who are profoundly mentally handicapped, I want to tell him that this is a very faulty Bill. I do not think a non-defined term such as "mental disorder" would ever stand the test in the courts in relation to mild psychiatric disorder or illness through the whole gamut to profoundly mentally handicapped.

It is a reflection on this House and on the public that it took 15 years for some of the suggestions in the 1965 report to reach legislative form, and even yet the mentally handicapped are not mentioned in the 1980 Bill.

: Purposely.

: Purposely indeed. The difficulty in trying to explain the flaws in this Bill is that the Minister appears to be so blissfully unaware of the problem, of the views of the profession, of parents and those working in the psychiatric and mentally handicapped areas, that he does not realise there are flaws. Every time one is pointed out to him he looks up with a beatific smile and says "Purposely, deliberately. Of course I left them out. They are improving things".

: Which they are, but I will come to that later.

: The Minister's capacity for dealing with things later which should have been dealt with at the outset is tremendous. I do not understand the situation where everybody in the health field—some more successfully than others—has been aspiring to divide the institutional services for the psychiatrically ill as opposed to the services for the mentally handicapped. I do not understand that there can be a situation like that, where all those interested in the provision of services for both of these groups can have been working towards that end, and then the Minister says that he excluded purposely any reference to the mentally handicapped and, apparently, he has lumped together the psychiatrically ill and the mentally handicapped, from mildly to profoundly handicapped. This happened on the day when the RMS of Saint Ita's at Portrane complained in public that his psychiatric hospital still contained far too many mentally handicapped, that his hospital was becoming a dumping ground for mentally handicapped patients on their transfer from Saint Brendan's Hospital. I might not have used the same words had I been in his position but the fact that this gentleman has complained in this way must surely be proof that the mentally handicapped need to be dealt with separately in the legislation.

Therefore, when the Minister tells the House that, purposely, he omitted the mentally handicapped, he is saying that he does not comprehend the problem and that he does not perceive a solution. As I have pointed out already, mildly mentally handicapped patients who are referred to psychiatric hospitals are being approached by the staff on the basis that they are not the problem of psychiatrists employed in the strict psychiatric service and that, instead, they should be referred to the specific centres for mentally handicapped, though there is not any provision for them to be detained in those centres. In these circumstances a Minister who smiles beatifically and says that, purposely, he omitted this category of persons, cannot comprehend the problem and cannot realise that there are two separate questions involved.

My advice is that the rights of the mentally handicapped may not be enshrined in the law so far as this Bill in concerned. I am talking of their rights in relation to their being detained compulsorily for treatment in the absence of their ability to perceive the necessity for such detention and treatment. I am saying, deliberately and specifically, that that is the widespread belief of many of the medical people who are responsible for the operation of centres for the mentally handicapped and who have genuine ground for concern as to what their situation in law is in relation to the detention of patients under their control. This doubt must be clarified. They must be told whether they are entitled legally to detain those patients and whether this Bill gives them any further power in that regard. Apart from the situation not being spelled out in the Bill, the Minister did not deem it worth his while to refer to the matter in his opening remarks.

At least the British legislation in this area specified the four separate categories of mental illness as mental disorder, severe subnormality, subnormality and psychopathic disorder. Surely, 21 years later we could have made some attempt to distinguish those who are ill psychiatrically and those who are mentally handicapped permanently? There is a distinction and after the Minister has been in the Department long enough he will realise that there is such distinction.

: There is a distinction but this is something that must be dealt with separately. As the Deputy has said, the question of mentally handicapped persons should not be lumped together in the same legislation with the question of those suffering from severe psychiatric illness.

: I accept the Minister's attempt to clarify his thinking in this regard but it is wrong for him to include the mentally handicapped with those who are psychiatrically ill.

: I have not done that.

: The Minister has omitted to make the distinction, a distinction that I would have made had I been in his position. Not only the British but most other advanced societies have done this.

: That is not true.

: The Minister will have his opportunity to reply. The Deputy is entitled to make his point, regardless of who may disagree with him.

: The Minister is suggesting that what I said is not true.

: That is so.

: There are about 150 sections in the UK Mental Health Act of 1959 but if the Minister wishes to persist in saying that what I am putting forward is not accurate, I shall be obliged to read through all of these 150 sections.

: The Deputy is referring to the UK Act of 1959 but I can assure him that the British have welcomed the step we are taking in separating entirely the mentally handicapped from those suffering from severe psychiatric illness. In our view the question of the rights of the mentally handicapped should be treated totally separately as is the case in respect of any other group of patients and without the stigma of psychiatric illness being attached to the mentally handicapped.

: The Minister's intervention indicates the extent to which he perceives the problem. Fifteen years after the report of the commission that were set up to deal with the question of the mentally handicapped and three years after the Minister's party gave a specific election guarantee to reorganise completely the mental health service and the service for the mentally handicapped, all we have is a limited Bill dealing with the detention of the psychiatrically ill involuntary patients. There is not any reference in the Bill to the mentally handicapped. The reason for this omission, we are told, is that their situation needs to be dealt with separately. May we expect the legislation in that regard in about 15 years from now?

: Those people who have been dealing with legislation are well aware that major and comprehensive legislation can deal with many facets simply by setting out separate parts to an Act and the main Act under which the Department have manacled the health boards is the Health Act of 1970 which deals with everything from the question of the superannuation of kitchen staff to the setting up of the administration. It deals with such services as the child care service and the general medical service.

On the Minister's argument what should be done is to have a separate Bill for the general medical services, a separate Bill for the child care services, for the dental orthodontic and ophthalmic services, one in relation to superannuation of employees of existing health authorities, in relation to the taking over of existing institutions, the powers to purchase land and so on. These are all separate things but they are integrated into the health service and together they endeavour to provide some sort of reasonable health board activity.

: They are not separated. The Deputy is confusing administration with the illness.

: Deputy Boland will make his own case.

: I bet the Deputy will change his mind when he studies the next section.

: Part 4 of the 1970 Health Act refers to the eligibility of patients for treatment. Chapter 3 refers to the general medical services, medical and social. Section 59 deals with the drugs, medicines and appliances, section 60 deals with home nursing and section 61 with home health services. Chapter 3 merely deals with the provision of general medical and social services. Chapter 4 now deals specifically with services for mothers and children. Consequently neither Deputy Moore nor myself would qualify for these services. Indeed many mothers and children do not receive them anyway because of the meanness of the operation.

: We are now getting away from the Bill before the House.

: Chapter 5 deals with other services, the provision of dental, ophthalmic and aural services. We hear about them but they are not in existence. The next section deals with the rehabilitation service and the next section with maintenance allowance for disabled persons.

: We are dealing with a particular Bill, Deputy.

: I am referring to a Health Act that deals with the provision of many different services for different ailments and different necessities but they all relate to the health of the general public. We are now talking about the mental health of the general public and in this legislation there is an attempt to modernise the situation in relation to the admission, retention, discharge and review of patients who are psychiatrically ill. There is no reason why there should not have been a separate part in this Bill which would have dealt with the rights of the mentally handicapped, which would have recognised clearly and set out in legislative form that the mentally handicapped are separate and distinct from those who are psychiatrically ill and which could then have gone on, for instance in the case of the review body, to have provided, in the same way as the involuntary aspect of psychiatrically ill patients will be reviewed by a review body, at certain stated intervals, that that operation would be put into effect in relation to patients who are mentally handicapped, as was suggested.

: We are not going to operate the same kind of controls on mentally handicapped. Mental handicap is part of the handicapped, totally. If the Deputy read the recent NESC report he would see that mental handicap is dealt with as part of the general handicap not as part of psychiatric illness. That is the way we are taking it at present.

: This Bill is setting out a procedure whereby people can appeal to a review body every so often when they are detained compulsorily and deemed to be psychiatrically ill. In 1965 the Robins Report on mental handicap set out a procedure whereby people could be detained compulsorarily if they were mentally handicapped and it sets out a procedure whereby they or their representatives can appeal against that compulsory detention virtually in the same way that the review body that is now setting out in relation to those who are mentally ill. I do not follow the logic nor the argument that we cannot for instance in the same legislation endeavour to deal with ophthalmic problems and aural problems. If that is to be the argument there will be a profusion of separate Bills. If one argues that we cannot deal with the provision of aural services and ophthalmic services in the same Bill I will accept that we cannot deal with the question of the mentally ill and the mentally handicapped in the same Bill. If that is to be the case there will be no room for Deputy Moore to introduce any other legislation except scrappy pieces of health legislation. There is widespread unhappiness and has been for a long time amongst those who operate the mental handicap services because they have not a clear legal definition of their powers of detention and of the rights of the handicapped person and they feel that that needs to be defined. A number of these people felt that this Bill was the vehicle whereby that ought to have been done. It was not unfair or unreasonable for them to have felt that way, especially in view of the fact that three years ago they were promised a complete reorganisation. In their innocence these people thought that this Bill was the attempt at reorganisation. I gather from the Minister's interruptions that he has not yet commenced that reorganisation and that possibly there will be a separate Bill in relation to mental handicap some time in the future. I do not think that simply because the psychiatrically ill are being dealt with in relation to powers of detention in one part of the Bill a separate part cannot be introduced to specifically deal with the mentally handicapped. I criticise the Bill for that fact and I intend tabling amendments in that regard.

: The Deputy will have to check his facts first.

: I have checked my facts. The difficulty is that some others may not have checked theirs. As the Minister has undertaken to make some reference to the mentally handicapped in his reply, it would be well if he clarifies the situation. Are the mentally handicapped residential centres operating in some regards outside the existing legal framework? Have they the powers to detain mentally handicapped people in their institutions? Have they the power to physically restrain a moderately or severely handicapped person if he decides to walk out on the street? Have the administration of the mentally handicapped institutions the power to bring a person back? It is very important that that should be clarified. It has not been clarified despite many requests by the people operating these centres. The law in relation to the mentally handicapped and to their civil rights needs to be clearly defined. This was an ideal vehicle to define the law and the rights in relation to the psychiatrically ill separately within the same legislation. If it is to be comprehensive it must define the rights and the entitlements under law in relation to the mentally handicapped.

Debate adjourned.
The Dáil adjourned at 8.30 p.m. until 2.30 p.m. on Tuesday, 21 October 1980.
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