Amendment No. 24 is consequential on amendment No. 23 and the two may be taken together.
Health (Mental Services) Bill, 1980: Committee Stage Resumed).
Section 31, as amended, agreed to.
SECTION 32.
I move amendment No. 23:
In page 14, to delete line 5 and substitute:
"32.—(1) Where, in respect of a person detained in a psychiatric centre, the medical officer in charge of the centre or the authorised medical practitioner with special responsibility for the care of that person".
I indicated on Second Stage that I intended to have this section amended. As the section stands, only a chief psychiatrist or clinical director could discharge a detained patient. Unamended, this provision would erode the clinical responsibility of consultant psychiatrists. Accordingly I am now proposing that the section be amended to allow consultant psychiatrists to discharge detained patients. As a result the Bill will be consistent, as the decision to detain a patient is also made by a consultant psychiatrist. This change is in keeping with the general philosophy of the Bill and also corresponds to the pattern of clinical responsibility obtaining in general medicine. Amendment No. 24 is a drafting consequence of amendment No. 23.
(Cavan-Monaghan): As the Bill stands, only the chief psychiatrist or the psychiatrist in charge of the institution would have the authority to discharge a patient. The amendment which the Minister proposes confirms the authority of the medical officer in charge of the centre or the authorised medical practitioner with special responsibility for the care of that person. I presume that refers to another consultant psychiatrist in the institution.
Yes.
(Cavan-Monaghan): It would probably be the consultant psychiatrist looking after the patient. Must the authorised medical officer be a consultant psychiatrist?
Yes.
Amendment agreed to.
I move amendment No. 24:
In page 14, line 7, to delete "a" and substitute "the".
Amendment agreed to.
I move amendment No. 25:
In page 14, between lines 8 and 9, to insert a new subsection as follows:
"(2) A person who is under care in a psychiatric centre otherwise than as a detained patient may give written notice to the medical officer in charge of the centre that he wishes to leave the centre not earlier than twenty-four hours after giving the notice and he shall be entitled and shall be allowed to leave the centre at any time after the expiration of the said twenty-four hours.".
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
I move amendment No. 26:
In page 14, subsection (2) (c), line 22, to delete "for the order or".
Amendment agreed to.
I move amendment No. 27:
In page 14, subsection (2) (d), line 25, to delete "or signed a certificate".
In this section the words "or signed a certificate" are misleading and superfluous as there is no reference elsewhere in the Bill to a registered medical practitioner signing a certificate. While under section 19(5) a registered medical practitioner is required to certify that he is satisfied that certain conditions are fulfilled before recommending the detention of a person, this certification forms part of the recommendation for reception and is not a separate document. Therefore the question of signing a certificate does not arise.
(Cavan-Monaghan): I take it the recommendation is a certificate.
Yes.
Amendment agreed to.
I move amendment No. 28:
In page 14, subsection (3), line 27, after "section" to insert "shall be in writing and".
This amendment is necessary to formalise the procedure for obtaining information on detained patients in order to prevent the improper disclosure of confidential detail about the patient in response, say, to a telephone call.
Amendment agreed to.
Question proposed: "That section 33, as amended, stand part of the Bill."
(Cavan-Monaghan): This is a very proper section, the purpose of which is to make available information regarding persons detained in psychiatric institutions. At first reading of subsection (1) and (2) one would think that this information would be available to any person who wanted to get it, but the number is limited by subsection (3) which states:
An application under this section shall be granted if the health board or the medical officer, as the case may be, is satisfied that the application is made in good faith in the interest of the person in respect of whom it is made and that it would be in accord with that person's interest to grant it.
Is there any list of people who are automatically entitled to get information?
We have no such list. It is at the discretion of the health board and the medical officer. It is fair to say that they would be very reluctant to give information.
(Cavan-Monaghan): If the applicant were a near relative the information should be given as of right but such provision does not appear in the section as drafted. It simply confers on the medical officer the right to give or refuse information and there is thus very little safeguard for the patients. The whole object of the section is to provide that relatives and others should be able to ascertain the whereabouts of a near relative.
Subsections (1) and (2) state:
Any person may apply to a health board for information as to whether a particular person is detained in a special or district psychiatric centre in the functional area of the health board and, if he is so detained, as to the name and address of the centre and the name of the medical officer in charge of it.
Any person may apply to the medical officer in charge of a district, special or registered psychiatric centre for—
(a) information as to whether a particular person is detained in the centre,
(b) a copy of the reception order under which a particular person is detained,
(c) the name of the applicant for the order or for a recommendation for the reception of a particular person,
(d) the name of any registered medical practitioner who made a recommendation or signed a certificate in relation to that person.
Subsection (3) takes the teeth out of the section by saying that this information may only be granted if the health board or the medical officer, as the case may be, is satisfied that the application was made in good faith in the interest of the person in respect of whom it was made and that it would be in accord with that person's interest to grant it. I cannot see how it would be against a person's interest to grant information to a limited category of people. I think there is an appeal to the President of the Circuit Court and that is some safeguard, but a person should not be put to the trouble of appealing to the Circuit Court.
It could happen that a near relative had been out of this country for a number of years but returned home because he heard through the grapevine that a relative was confined in one of these institutions. As of right that near relative should be entitled to find out if that person is in that institution. The patient would not be there unless there was strong prima facie evidence that he was mentally ill.
I do not like the section as drafted because although superficially it looks to be conferring protection and giving rights, it is not. The Minister amended subsection (3) by saying that the application should be in writing, but he did not amend subsection (4) saying the refusal also should be in writing. What is sauce for the goose should be sauce for the gander. If an appeal is brought to the Circuit Court against the refusal, it would facilitate matters if the refusal were also put in writing.
The problem of confidentiality and who should have a right to that information at a particular time arises here. It is reasonable to assume that between the health board and the medical officer in charge the patient would be given due consideration and anyone seeking information would be given it if their request is bona fide. It is difficult to define particular people in this context because circumstances may change very significantly in relation to a particular patient. Therefore, it is reasonable to leave this to the medical officer and the health board.
Under section 24(4) the applicant for a reception order is informed and knows where the patient is. Deputy Fitzpatrick mentioned the written application. Section 33(4) says that where the application is refused the health board or medical officer shall so inform the applicant. I will consider the question of having that information in writing.
(Cavan-Monaghan): It follows from the Minister's amendment. I feel very strongly about the information of a person's whereabouts being made available. If we read through this Bill we see notice is taken and consideration is given to relatives in many sections. They are the people who are entitled to apply for recommendation orders. As I said, near relatives might be out of this country for many years and might only come home on a visit, and it is not unreasonable that a limited category of near relatives — sisters, brothers, parents or children — should be entitled to be told if their relative is being detained in a particular institution. I cannot see any real breach of confidentiality there.
If a patient is being detained, he is not a voluntary patient. He needs care, is not able to look after himself and most likely, is not able to communicate with his relatives. The patient probably would not know the addresses of the relatives who have been abroad and the near relative should know or have the right to know whether the patient is in an institution. I do not think the argument about confidentiality stands up.
I will have a look at this.
Question put and agreed to.
NEW SECTION.
I move amendment No. 29:
In page 14, before section 34, to insert a new section as follows:
34.—(1) The medical officer in charge of a psychiatric centre shall, upon the making of a reception order under which a person is to be detained in the centre, give that person a copy of the order and a copy of the recommendation for his reception and, upon the making of any extension order, he shall give that person a copy of the order.
(2) The medical officer in charge of a psychiatric centre shall, upon the making of a reception order under which a person is to be detained in the centre, give that person a statement in writing of his rights and entitlements under this Act.
(3) The medical officer in charge of a special, district or registered psychiatric centre from which a detained person is discharged shall, upon request made within twelve months after his discharge, give that person a copy of the reception order under which he was detained and of any extension order and a copy of the recommendation for his reception.".
The section, as drafted, is to be deleted and replaced by a new section designed to provide comprehensive and uniform safeguards for the rights of all detained patients. First, this amendment is designed to ensure that all detained patients are provided with copies of the statutory documentation relating to their detention and also with a statement of their legal rights and entitlements under the Act. It is desirable that these should be given to the patient when the reception order is made and the section specifies accordingly. Secondly, we are now retaining the provision of the existing legislation which allows discharged patients to obtain statutory documentation relating to their detention on request within a period of six months after discharge. This period is now to be extended to one year after discharge.
(Cavan-Monaghan): Strange to say I have certain doubts as to whether the section as originally drafted or the new section is more beneficial to the patient. The short section 34, as originally drafted, says:
The medical officer in charge of the special, district or registered psychiatric centre in which a person is detained shall, on request, give him a copy of the reception order under which he is detained and a copy of the recommendation for his reception.
That means he can get a copy of the reception order at any time on demand. However, the Minister is proposing to alter that by the insertion of a new section. Subsection (1) of the new section reads:
(1) The medical officer in charge of a psychiatric centre shall, upon the making of a reception order under which a person is to be detained in the centre, give that person a copy of the order and a copy of the recommendation for his reception and, upon the making of any extension order, he shall give that person a copy of the order.
That occurs at the time of the making of the order and that is it. The new section also states:
(2) The medical officer in charge of a psychiatric centre shall, upon the making of a reception order under which a person is to be detained in the centre, give that person a statement in writing of his rights and entitlements under this Act.
(3) The medical officer in charge of a special, district or registered psychiatric centre from which a detained person is discharged shall, upon request made within twelve months after his discharge, give that person a copy of the reception order under which he was detained and of any extension order and a copy of the recommendation for his reception.".
If the provisions of that new section are to be enforced literally by the authorities, it will mean that when the reception order is made a copy will be given to the patient. That will be the end of it. But what will be the position if the patient lost or destroyed the copy of that order? We should bear in mind that such a person is likely to be very sick at the time of reception. It is likely that such a person will not be worried about a filing system or where he puts his copy of the order. It is likely that he would destroy it. But six months later, when he may be entitled to leave, he would not be entitled to get a copy of the order because of the provisions of the new section.
In relation to subsection (2), I should like the Minister to outline what a statement of the patient's rights will contain. Will it consist of extracts from the Act, regulations or a prescribed document? Subsection (3) appears to be in order. Obviously, the new section is less favourable towards the patient than the one it is replacing.
The question of the statement of rights can be pursued following the enactment of the Bill. I intend to see to it that patients are given clear, simple and explicit information in relation to their rights and entitlements under the Act. I give an undertaking to the Deputy to follow up that aspect administratively subsequently because this is something which may change from time to time with other entitlements. The other question raised related to the Deputy's interpretation of the new section. It is his view that under the section a patient need only be given one copy and if that patient wanted another one later within the 12 months he, or she, technically, might not be entitled to it. I would not like that situation to exist. We will have a look at the new section from that point of view and if an amendment is required I will introduce one on Report Stage.
(Cavan-Monaghan): I suggest that the subsection should read that the medical officer in charge of a psychiatric centre shall, upon the making of a reception order under which a person is to be detained in the centre and at any time during his detention, on request give that person a copy of the order.
We will have another look at the section.
Amendment agreed to.
Section 34 in the original Bill is, therefore, deleted.
NEW SECTION.
I move amendment No. 30:
In page 14, before section 35, to insert a new section as follows:
"35.—Every letter written by a person in a special, district or registered psychiatric centre shall be delivered or posted unopened and the medical officer in charge of the centre shall cause the necessary facilities for writing, delivery or posting to be provided.".
This section has been criticised on the grounds that as it stands it implies that letters addressed to people other than those specified may be opened. The amendment is designed to ensure that all letters from all patients, voluntary and detained, in psychiatric centres shall be posted unopened. I also thought it desirable to make a provision to ensure that persons in psychiatric centres should have facilities to write and post letters.
(Cavan-Monaghan): What is the situation if a person gets a craze for writing letters and starts turning them out by the thousands?
It happens. I receive a series of letters from patients regularly and they make interesting history.
(Cavan-Monaghan): The Minister is imposing an absolute obligation on the authorities to post all those letters. The amendment states that every letter written by a person shall be delivered or posted unopened and so on, but it does not mention patients. I take it that it is meant to refer to the patients. It also states that the medical officer in charge shall cause to be provided the necessary facilities for writing, delivery or posting. I know what the Minister is at and I am in favour of all letters reasonably written being posted, but I do not think it is necessary to go so far as to say that letters written by a person whose illness takes the form of letter-writing should be posted. It is going a bit far to impose a statutory obligation on the medical officer in charge to post all those letters. In any event who will pay for the posting of them? Will there be free postage? The section is too loosely drafted. It should be drafted in such a way as to cater for the situation I mentioned.
It is very difficult to distinguish between letters. Such patients should have the same rights as anybody else in terms of unopened letters being posted. The provision is satisfactory.
(Cavan-Monaghan): As far as I am concerned it is not a question of opening letters or trying to distinguish them, but if a patient is so ill and the form of the illness is letter-writing it is not in the interest of that patient or in the interest of the addressee that they should be let loose. There should be a safeguard giving discretion to the medical officer. In my view such letters will not be posted. The Minister is including a provision which will not be obeyed. If hundreds of letters are written by a patient to Dr. Michael Woods the person who sends such letters out should exchange places with the patient.
I will have another look at it, but our problems are much more the other side.
(Cavan-Monaghan): I agree.
Amendment agreed to.
The acceptance of that amendment involves the deletion of the original section 35.
SECTION 36.
Question proposed: "That section 36 stand part of the Bill."
(Cavan-Monaghan): The term “designated medical officer” crops up here. Already we have had “authorised officers” and “authorised medical practitioner” but I do not think we have had this term before.
It relates to an officer specifically designated by ministerial order who will be assigned duties and given authority.
(Cavan-Monaghan): Would it not be better to have it defined?
I do not think it is necessary.
(Cavan-Monaghan): Has the Minister consulted the draftsman since the matter was raised here yesterday?
I have not.
(Cavan-Monaghan): I suggest the Minister should do so.
It can be discussed before the Report Stage.
Question put and agreed to.
SECTION 37.
Question proposed: "That section 37 stand part of the Bill."
(Cavan-Monaghan): The term “panel” is used. It is stated that a psychiatric review board shall be appointed for each health board area consisting of a lawyer; an authorised medical practitioner and a lay person. The Minister shall appoint the chairman. Subsection (4) states:
In the event of any member of the review board being unable to act or being debarred under subsection (7) from acting for a particular sitting the chairman shall replace him by an appropriate person from a panel of person to be appointed by the Minister.
That is the only reference we have to a panel. We are not told how the panel is to be established, but subsection (7) states:
In relation to the review of any particular case a member of a review board shall not be a relative of the patient, within a category described in section 14 (a), have a professional relationship with him or be a member of the staff of the centre in which the patient is detained.
This was discussed the other day in relation to another matter and the Minister said he would look into it. I want to know if a member of the health board will be eligible for membership of that panel. My opinion is that he should not and that an employee of the health board should not be eligible, not because I have any special objection to them but because this is a review body and if boards are to be effective the members should have fresh clear minds to do the job.
It is not the intention to have a member of a health board on the panel. However, it may be desirable to have it written into the Bill.
(Cavan-Monaghan): It could be written into paragraph (7). “Employee” should also be included.
Question put and agreed to.
SECTION 38.
Amendments Nos. 31, 32, 33, 34, 35, 36, 38, 40 and 41 are all related to amendment No. 30a and may be taken together.
I move amendment No. 30a:
In page 15, subsection (1), line 42, to delete "examine the propriety of" and substitute "review".
The amendment arises because it was necessary to amend terms such as "is properly detained" and "propriety of continued detention" in sections 39 and 40. These amendments are necessary to remove any doubt that might arise as to the precise meaning of the term "is properly detained" and propriety of continued detention". These terms could be interpreted as being concerned solely with the legal correctness of the detention process. The intention is, of course, that the review boards should be concerned with the necessity for and suitability of the continued detention of the patient. The section has been amended to clarify this point, i.e. the review board will either decide that a person should not be discharged, or direct that he be discharged. Similarly, the reference to "propriety of continued detention" at line 39 is superfluous and can be deleted without a need for substitution.
(Cavan-Monaghan): All these amendments say the same thing in different ways. “Should not be detained” is being substituted for “properly detained”. It means that if the board are not satisfied the person should be released. We have no objection to these amendments.
Amendment agreed to.
Section 38, as amended, agreed to.
SECTION 39.
I move amendment No. 31:
In page 16, subsection (1) (a), line 17, to delete "is properly detained" and substitute "should not be discharged".
Amendment agreed to.
I move amendment No. 32:
In page 16, subsection (4), line 29, to delete "is properly detained" and substitute "should not be discharged".
Amendment agreed to.
I move amendment No. 33:
In page 16, subsection (5), line 33, to delete "is properly detained" and substitute "should not be discharged".
Amendment agreed to.
I move amendment No. 34.
In page 16, subsection (6), line 39, to delete "on the propriety of the continued detention of the person".
Amendment agreed to.
Section 39, as amended, agreed to.
Section 40 agreed to.
SECTION 41.
I move amendment No. 35:
In page 18, subsection (1), line 11, to delete "propriety of his further".
Amendment agreed to.
I move amendment No. 36:
In page 18, subsection (1) (a), line 12, to delete "is properly detained" and substitute "should not be discharged".
Amendment agreed to.
I move amendment No. 37:
In page 18, subsection (4), line 23, to delete "officer" and substitute "practitioner".
This is to correct a drafting error. The reference to "authorised officer" should have read "authorised practitioner".
Amendment agreed to.
I move amendment No. 38:
In page 18, subsection (5), lines 28 to 30, to delete "examines the propriety of the detention of a person and decides that he is properly detained" and substitute "reviews the detention of a person and decides that he should not be discharged".
Amendment agreed to.
I move amendment No. 39:
In page 18, subsection (5) (b), line 32, to delete "or".
This is to correct a drafting error. The "or" being deleted is superfluous.
Amendment agreed to.
I move amendment No. 40:
In page 18, subsection (6), line 41, to delete "on the propriety of his continued detention".
Amendment agreed to.
I move amendment No. 41:
In page 19, subsection (7), line 4, to delete "examine the propriety of" and substitute "review".
Amendment agreed to.
I move amendment No. 42:
In page 19, between lines 6 and 7, to insert:
"(8) The Minister may by regulations reduce a period of two years referred to in subsection (1) or (4) to one year.".
Concern has been expressed that detained patients should have their cases reviewed automatically on an annual basis. Given the current numbers of detained patients, this would not be practical. Initially, the review board could become swamped with reviewing longterm cases. The amendment proposed will allow the Minister to reduce the period at a later stage when the board have been established and when experience has been obtained of the practical operation of the system.
(Cavan-Monaghan): What amendment is that?
Amendment No. 42.
(Cavan-Monaghan): Would the Minister tell me again the effect of that?
Initially the board could become swamped with reviewing longterm cases. The amendment proposed will allow the Minister to reduce the period from two years to one year. At a later stage, when the boards have been established and when experience has been obtained of the practical operation of the system, the Minister may by regulation reduce a period of two years referred to in subsections (1) or (4) to one year.
(Cavan-Monaghan): At present if a long-stay patient is reviewed once, he has not the right to further review for two years?
That is right. The Bill brings in an automatic review every two years, but this would allow the Minister to reduce that to every year, which is desirable in the longer term.
(Cavan-Monaghan): Has he no right of appeal against that other than to the Minister? The Minister can reduce the period from two years.
The review can take place on other grounds. It can take place by request but this is automatic review which must take place even if no review is requested.
Amendment agreed to.
Question proposed: "That section 41, as amended, stand part of the Bill."
(Cavan-Monaghan): Subsection (5) of this section states:
Where a review board under this section examines the propriety of the detention of a person and decides that he is properly detained, that person, or——
(a) the parent or guardian of that person,
(b) the spouse of that person, or
(c) a brother or sister of that person being over 18 years of age, or
(d) a son or daughter of that person being over 18 years of age,
may, within one month of being informed of the decision of the board, appeal to the Minister against the decision.
I want uncles and aunts included in that list. The more I think of the omission of uncles and aunts from this, the more numerous are the cases arising where uncles and aunts should be included.
We have accepted that we will look at the inclusion of uncles and aunts. This is an area in which it would also apply.
(Cavan-Monaghan): I will be putting down an amendment on Report Stage if the Minister does not decide to do so. Would he be good enough to let me know if he is doing so?
We will, yes.
Question put and agreed to.
Section 42 and 43 agreed to.
SECTION 44.
I move amendment No. 43:
In page 19, subsection (1), line 16, after "rules" to insert "in accordance with accepted medical practice".
The amendment to this section is technical. It would be theoretically possible for the Medical Council, with the consent of the Minister, to make rules which were totally at variance with and opposed to accepted medical practice. The section is being amended, therefore, to clarify this point.
(Cavan-Monaghan): What is the effect of the amendment?
The Medical Council may, with the consent of the Minister, make rules and the amendment will add in "in accordance with accepted medical practice".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 45.
I move amendment No. 44:
In page 19, paragraph (a), line 36, to delete "otherwise than from natural causes".
Some submission reviewed in relation to the Bill expressed concern that there would be no longer a requirement to report all deaths in psychiatric centres to a coroner. I did not consider, in this day and age, with a more open approach to the treatment of psychiatric illness, that it would be necessary to continue to do so. The view expressed, however, was so strong that I felt it desirable to go some way to meet it, particularly in the context of the fact that all major injuries are required to be reported to the Minister and the chief executive officer. It is logical that a similar requirement should be imposed in respect of that.
(Cavan-Monaghan): We had a discussion indirectly on this section yesterday which arose out of the inclusion of this section in the provisions of section 8, which provides for criminal prosecutions. I do not want to be misunderstood. I want to express myself as clearly as I possibly can in regard to this matter. I am in favour of this section. It is a necessary section. It is right than an injury other than a minor injury to a person undergoing treatment in one of these hospitals should be reported to the Minister. It is also right that any assault on any such person should be reported to the Minister. I also think it right, although this is very vague, that a report on any other matter of serious importance to the welfare of such persons should be reported to the Minister. I am in favour of all that. It is necessary and I am sure it was included in previous legislation and previous enactments.
This section imposes that duty on the medical officer. I do not care whether he is a medical officer or the chief executive of the health board, I object to the fact that failure to do that is being made a criminal offence which could be tried in a court of summary jurisdiction and which will attract a penalty of £500. It is really making a criminal offence out of something which is not criminal. Unless the medical officer who does not report these things is part of a conspiracy to assault a patient or abuse a patient and then suppresses it — of course, if he does that he is subject to the criminal law anyway — but if he innocently makes a decision, if he did not hear about it or if he comes to a conclusion that it is a minor matter or that it was not a matter of serious importance, he may not be carrying out his duties properly. But in my opinion he is not guilty of a criminal offence and he should not be brought before the courts.
The Minister, if it is reported to him and he has cause to believe that the matter should have been reported to him, should hold an inquiry or send down his designated medical officer or his authorised medical practitioner to look into the matter and, if necessary, demote or sack the person in charge. But to make this, as it stands, a criminal offence would be just the same as prosecuting a medical practitioner who was guilty of an error of judgment in treating a patient, or prosecuting a civil servant for failing to do something that the conditions of his employment said that he should do. I am against this principle and I do not think that these offences, or indeed one other offence under section 8, should be included as criminal offences.
I would be prepared to give consideration to the points raised though I am somewhat reluctant because of the serious nature of the detention and the need to be quite sure that there will be administrative arrangements which will automatically come into operation without any question once such an injury or any such assault occurs.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 46.
Question proposed: "That section 46 stand part of the Bill."
(Cavan-Monaghan): Would the Minister explain what is involved in this section which deals with High Court proceedings?
There is a similar provision in section 260 of the Mental Treatment Act, 1945, as amended by the Public Authorities (Official Proceedings) Act, 1954. It is regarded as a necessary safeguard to protect relatives and mental hospital staff from legal proceedings arising from the detention of patients.
(Cavan-Monaghan): I can see the point but at the same time it seems to be putting a barrier on proceedings being brought by a patient. It is quite vague. It says that no civil proceedings shall be instituted in respect of an act purported to have been done in pursuance of the Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care. I am doubtful as to whether that would stand up. It means that before a person can bring civil proceedings for matters done under this Act he will have to have a preliminary trial in the High Court. In effect, he will have to go to the High Court by way of preliminary application for permission to institute proceedings and the High Court cannot grant permission for the bringing of these proceedings unless it is satisfied that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care. That is something that will have to be tried in the action. I honestly belive that this is going too far. It is a very technical provision and it is something that needs to be looked into and teased out at some length. I would have preferred if it was drafted “and leave shall not be granted unless the High Court is satisfied that there is a prima facie case against the person against whom it is proposed to bring the proceedings”. That would be reasonable, but under this section a person with a perfectly legitimate cause of action, and a good cause of action, could be prevented from bringing proceedings. I do not want to encourage vexatious proceedings and I do not want to encourage proceedings which have only a nuisance value. I am against all that. But we should be careful not to debar people who have a reasonable cause of action from going ahead.
The Deputy has defined the situation fairly well himself. It is intended to avoid trivial actions which, in circumstances where people are of unstable or unsound mind or there is such a degree of disorder, could arise fairly readily. The measure has been there since 1945 without causing any great difficulty and providing, at the same time, protection for the psychiatrists and the relatives involved and the other people concerned. So I would be reluctant to alter that. Certainly I will consider the points the Deputy has raised.
(Cavan-Monaghan): Perhaps the question of a person being a patient in a hospital could be got over by making him a ward of court so that proceedings could not then be brought without the approval of the registrar of wards of court. What I do not like here is that it foresees an action. Section 46 (1) seems to visualise a valid action but to prescribe an escape clause on the grounds that the person against whom it is proposed to bring the action did not act in bad faith and did not act without reasonable care. That could work an injustice. If something has stood there since 1945, now is the time to have a look at it. I would like the assurance of the Minister that he will look into this.
I have said already that I will look into it.
(Cavan-Monaghan): The whole approach to certain legal principles and to constitutional rights and personal rights and the whole approach of the Supreme Court here to certain aspects of the law have all changed and that particular section should be looked at in the light of modern day thinking and modern day approach to these matters.
Question put and agreed to.
Section 47 agreed to.
SECTION 48.
Question proposed: "That section 48 stand part of the Bill."
(Cavan-Monaghan): Is the fee prescribed?
From time to time.
Question put and agreed to.
SECTION 49.
Question proposed: "That section 49 stand part of the Bill."
(Cavan-Monaghan): Would the Minister tell us what is involved in this one?
The provisions in this section will provide for those patients in mental hospitals on the operative date of this Bill. It is really a continuation procedure.
(Cavan-Monaghan): Until this one comes in?
Yes.
Question put and agreed to.
Section 50 agreed to.
SCHEDULE.
Amendments Nos. 45 and 46 are related and will be discussed together.
I move amendment No. 45:
In page 21, in the third column, opposite the mention of the Mental Treatment Act, 1945, after "Act" to insert "except Part VIII".
Part 8 of the Mental Treatment Act, 1945 sets out superannuation provisions for staff of mental hospital authorities up to 31 March 1961. Section 41 of the Mental Treatment Act 1961 applied the superannuation provisions of the Local Government (Superannuation) Act, 1956 to such staff in lieu of their existing provisions with effect from 1 April 1961. Under the terms of the 1961 Act existing mental hospital staff pensionable under the 1945 Act were given the option of remaining pensionable under their existing provisions. A certain number did so. It covers the pension.
Amendment agreed to.
Amendment No. 46 was discussed with amendment No. 45. Would the Minister move amendment No. 46?
I move amendment No. 46:
In page 21, in the third column, opposite the mention of the Mental Treatment Act, 1961, after "Act" to insert "except section 41".
Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday. We can arrange with the Whips. It may in effect be on Thursday.
(Cavan-Monaghan): Subject to agreement.
Report Stage ordered for Tuesday, 7 April, 1981.