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

Minister for Health (Dr. Woods)

I move amendment No.1:

In page 4, to delete lines 5 to 11 and substitute:—

" `medical officer in charge' means an authorised medical practitioner who is—

(a) in relation to a district psychiatric centre, the chief psychiatrist of the centre,

(b) in relation to a registered psychiatric centre, the chief medical officer of the centre, or

Deputy Fitzpatrick raised an important point on Committee Stage. The Bill, as drafted, does not specify that the medical officer in charge of a psychiatric centre should be an authorised medical practitioner as defined. In practice, of course, chief psychiatrists employed in health board institutions and chief medical officers of private institutions are of consultant psychiatrist standing. It is necessary, however, to put this issue beyond any doubt. Similarly, it is necessary to ensure that any person acting on behalf of such chief psychiatrists or chief medical officers will be of consultant psychiatrist status. This amendment is proposed accordingly.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): As the Minister said, on Committee Stage I was unhappy about this because I was of the opinion that the Bill, as drafted, was anything but clear, and that we could have a person in charge of an institution with fewer degrees or fewer qualifications than was intended. For that reason I raised the point on Committee Stage. I am satisfied that the amendment introduced by the Minister meets the point.

Amendment agreed to.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I move amendment No. 2:

In page 5, line 22, to delete", 36 (3) or 45" and substitute "or 36(3)".

This is an amendment to section 8(4). Section 8 creates offences and provides penalties for certain offences. Section 8(1) creates a number of indicatable offences. For example, under section 10 (1) it shall not be lawful for any person other than a health board to operate any premises for the detention of persons requiring care and treatment for mental disorder or to describe or hold out any place as such unless it is approved and registered by the Minister in accordance with regulations made by the Minister under this section.

That is a very proper subsection. It is very desirable that any breach of that subsection should be a serious offence punishable by heavy penalties. A monetary penalty of £10,000 is provided in section 8, or two years in prison. I do not quarrel with that at all. As a matter of fact, I consider it is very proper. Section 12 (1) provides that it shall not be lawful for any person other than a health board to carry on in the functional area of the health board a psychiatric home unless it is licensed to be carried on by the Minister.

It is very proper that any breach of that should be declared unlawful and should be punishable by very severe penalties, and suitable penalties are provided in section 8(1). Other offences of a similar nature are created by section 17 (1) and section 44(2). These are all indictable offences. If a person is prosecuted on indictment he shall be subject to the penalties I mentioned. Section 8(2) gives jurisdiction to the District Court to deal with the offences I have been talking about in certain circumstances. That is the usual provision and I have no fault to find with it.

When we come to section 8(4) we find that a breach of the provisions of section 45 of the Act is made a criminal offence. Section 45 reads:

Immediately upon the occurrence in a district, special or registered psychiatric centre of any of the following matters the medical officer in charge of the centre shall give a report thereon to the Minister and to the chief executive officer of the health board for the area where the centre is situated—

The matters he is obliged to report are:

(a) an injury, other than a minor injury, to a person undergoing care and treatment in the centre or the death of any such person.

(b) an alleged assault upon any such person,

That is an obligation imposed by section 45 on the medical officer in charge of the institutions mentioned. That is really saying that it shall be a condition of the employment of the medical officer that he shall do these things. It is spelling out in statutory form the duties of the medical officer in charge of a psychiatric institution and it is creating a situation where a breach of the conditions of employment of the medical officer is a criminal offence under section 8(4) of the Bill. Under that section the medical officer if he fails to comply with section 45 may be prosecuted in the District Court and he may be fined £500 or at the discretion of the court he may be imprisoned for a term of six months. This is an outrageous provision in any Bill. It is quite unreasonable to make a failure to comply with section 45 a criminal offence punishable by a fine of £500 or by imprisonment. I would direct the Minister's attention to the terms of section 45 which make it an absolute offence.

Among other things that he is supposed to report is "any other matter of serious importance to the welfare of such persons". Who is to be the judge of whether a matter is serious or not, the CEO or the Minister? If they have no doubt will the doctor in charge simply be hauled before the courts and prosecuted and be obliged to defend himself?

The terms of section 45 are desirable and it is appropriate that they should be in the Bill. If a medical officer in charge of a State-run psychiatric institution does not comply with the terms of this section disciplinary action should be taken. The Minister should resort to the powers already available to inquire into the performance of that officer of his duty and, if he is satisfied that there is a serious breach of duty, he should have the officer dealt with. If that happens in a private psychiatric institution the Minister could also use his powers to withdraw the licence under which the institution was operating and to refuse to renew it. These are very far reaching powers already available to the Minister and they would ensure that the provisions of this Bill would be carried out.

During the last hearing on this Bill the Minister seemed surprised to find out how far reaching were the terms of sections 8 and 45. The Minister had relied on a previous Act and he told me that there was nothing new about this and that this was a provision in the 1945 Act. I asked the Minister if that provision had ever been resorted to and he said that it had not.

A lot of the merit that the Minister claims credit for in regard to this Bill is that it is an updating of legislation, a modernising of provisions for mental treatment. This Government talk about their approach to industrial relations and about the need for creating better industrial relations. This is the sort of provision one would find in an Act enacted in the last century. This makes the breach of a condition of employment of a State servant a criminal offence. Does the Minister deny that? How can the Minister justify prosecuting for a criminal offence somebody who puts a different interpretation on section 45 (c), who interprets something that has happened as not being serious while some Minister thinks otherwise? The Minister may say that if he is not guilty of an offence he will be acquitted in the courts. However in the meantime that person has to go to court and defend himself on a criminal charge. That is unreasonable. The Minister, who can be quite nice when he it suits him, can be quite nasty when he thinks it politically profitable to be so. I do not want section 45 removed from the Bill as it is necessary to maintain control over these instituitions whether they are private or State run. There should be overall control from the Minister's office.

My objection is to creating a criminal offence where there is no criminal offence. It is significant that the Bill as originally drafted did not include the provision of section 8(4) of section 45 or for a breach of duty being a criminal offence. Including that particular section was an afterthought by the Minister and I should like an explanation now as to why that was done. This is really a repetition of an episode when the Minister's party prosecuted certain ESB employees, lodged them in Mountjoy, then released them, paid the fines for them and sent them home in taxis. That section in the ESB Act of that year did not work and the Minister knows that, unless the person involved in section 45 was engaged in a criminal conspiracy, the section will not work. Then why did he put it into the Bill? The Minister claims credit for removing the locks and chains and doing away with the padded cells by scrapping hundreds of sections of the 1945 Act and the other three Acts which are being repealed. Then why include this particular section in this Bill? If it were attempted to invoke the provisions of section 8 (4) to enforce the provisions of section 45, in my opinion you would have a strike of huge dimensions all over the country unless, as I say, the person involved was engaged in a criminal conspiracy or committed a criminal offence, in which case he could be prosecuted independently of his terms and conditions of employment and independently of this Bill.

I thought the Minister saw the logic of my argument on Committee Stage. I believed he intended to do something about this. He has yielded to a number of suggestions put forward by Deputy Boland and me and introduced amendments which improved the Bill. I would not have spoken so strongly on Committee Stage and neither would I repeat my amendment on Report Stage were it not for the fact I feel so strongly about this. tee Stage and neither would I repeat my amendment on Report Stage were it not for the fact I feel so strongly about this. We should be ashamed of ourselves in the year 1981 creating this sort of offence, and that for two reasons. This is contrary to the whole philosophy of good industrial relations. It is completely foreign to the promotion of better relations between employers and employees. It is writing into a Bill a provision it is never intended to enforce. I would like the Minister to tell me — I am sure there has been a good deal of research since the last Stage—whether this section or the section it replaces in the 1945 Act has ever been invoked, in what case or circumstances and with what result.

I would like to be told whether the offence under this section was an offence under the previous Act and I would also like to be told why and how it was left out of the Bill as originally drafted and introduced. I would like to be told whether it was ever invoked and, if so, in what type of case and with what result. I am sure the Minister has excellent advisory services in connection with a Bill like this and I would like the Minister to tell us why he will not yield to my amendment now and why he insists on this section as drafted being retained.

Is there a precedent, apart from the mental services legislation, for this in other types of employment and in respect of other types of obligations placed on employees? I do not make any distinction between the person involved here because he happens to be a professional man. I would make the very same argument if he were not a professional man, if he were any other type of employee. To me there is no difference. The criminal law should apply to everybody and it should not be necessary to write things like this into conditions of employment in respect of certain people. That is what I am against. This is a bad precedent and I honestly believe that, if the implications of this particular section were fully realised, there would be objections to it right across the board.

To get back to section 45, one finds the words "immediately upon the occurrence". What does that mean? Does it mean the day something happens? Does it mean the day after? Does it mean within a week? If the medical officer is absent and there is some one deputising for him and that someone would like to have an opportunity of consulting with the officer in charge on his return, does he simply leave the matter over for a week? Will that be an offence under the section? Here we are dealing with a criminal offence. Is the report to the Minister and to the chief executive officer of the health board to be in writing or over the telephone? We should spell this out if this is a criminal offence. Here it says "immediately", not within 24 hours or any specified time, but immediately. Then it provides that he shall give a report thereon. That is much too loose in a section creating a criminal offence. I should like the Minister's observations on that.

In this section we are creating a criminal offence to be prosecuted under the criminal procedures of section 8(4). When we are dealing with criminal language or criminal acts we should use language that the courts will understand. What does the Minister mean by assault? It is an assault for me to go over to the Minister and shake my fist in his face or anybody else's face. That is an assault within the criminal code. Is every incident like that to be reported to the CEO and to the Minister? Is the person to be prosecuted for it? It is not an assault causing injury, it is simply an alleged assault. If I throw a glass of water on somebody in a fit of bad temper that is an assault. That is the sort of language that is put into this section. I agree that paragraph (a) is more intelligent. It states "an injury, other than a minor injury, to a person undergoing care and treatment in the centre or the death of any such person". Somebody has to decide what is a minor injury. If this is put on the Statue Book it is the courts who will have to decide this. Paragraph (b) refers to an alleged assault upon any such person. I have described what an assault is. Does the Minister agree with me? If a person throws a glass of water on another person that is an assault. If I shake my fist or shake a stick so close to a person that I could hit him with it that is also an assault.

Paragraph (c) says "any other matter of serious importance to the welfare of such persons". What does that mean? Maybe the person was not getting the sort of food he should have been getting, maybe there were too many visitors coming to see him. It certainly could mean a lot of things besides physical things. This medical officer is bound to report to the Minister and to the CEO any other matter of serious importance to the welfare of such persons. Perhaps the health board have not provided enough money to give the sort of food this person is entitled to. I implore the Minister to tell me what is meant by this section. If he tells me that this is a repeat section of some form of Act it shows how undesirable it is to go back and lift sections and subsections out of Acts passed 50 or 100 years ago and put them into another Bill without thinking about it. We are now making it a criminal offence if a medical officer does not report the sort of things I am talking about. He is not even to be told if the report is to be in writing. It should be in writing if one is to avoid a long argument about it afterwards.

The Bill goes on to list the things he is supposed to do. It is difficult enough to interpret an injury other than a minor injury. It is almost impossible to interpret an assault. It covers a lot of things which may or may not be intended to be reported. Paragraph (c) takes the biscuit altogether because it says the medical officer is bound to report immediately any other matter of serious importance to the welfare of such persons.

What does that mean? If all the Deputies in the House were present I would ask them what it means and they would not be able to tell me. If the CEOs for the health boards were sitting in the House and I asked each of them what paragraph (c) of section 45 means, they would not be able to tell me, because it is so wide it covers everything. It is an omnibus, all-embracing subsection, which is like a clause in a will which says that the person leaves all his property of every nature and kind, real and personal and wherever situated to such and such a person. That covers everything. This subsection is just as wide.

That would be all right if we did not make it a criminal offence. We are making the provisions of this subsection a criminal offence. It is nearly as bad as the other section, which says that every letter written in the institution has to be posted immediately even if the unfortunate person who is writing the letters is so mentally afflicted he does not know what he is doing. The Minister seems to have a sudden urge to get this Bill through the House. I was facilitated in respect of it on one occasion when I was out of the country on parliamentary business and I am grateful to the Minister for that.

Dr. Woods

It was inconvenient for me at the time.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): We are entitled to be facilitated when we are on public business. It is also nice to facilitate people even when they are on private business. This has become a matter of urgency to the Minister.

Dr. Woods

The Bill is in the House for a long time.

An Leas-Cheann Comhairle

We will conclude on the amendment, please.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I want to put it on the record that I have not held up this Bill. It has gone through quite quickly. I asked that the Bill would not be taken on two specified days because I was out of the country on public business. I have shown how farcical those two sections taken together are. The Minister is rushing the Bill through the House today and he will bring it to the Seanad next week. If he is convinced that an amendment is necessary an amendment will not be made to the Bill in the Seanad because the Bill would have to come back to the House and the Dáil will not be here. We will not have this Dáil sitting again. That is the reason the Minister is rushing the Bill through the House today. There is virtually a guillotine motion on it. Any sensible person must agree that it is wrong to create a criminal offence in section 45. It is writing trash of the worst kind into this Bill and I intend to show how utterly absurd it is. It might project the Minister as a bigger man if he were to agree to drop section 45 from section 8(4).

The provisions of section 45 would be all right if we knew what they were or if they could be interpreted as to what is to be reported. The Minister should tell the draftsman to prepare a new section 45. It would be reasonable to specify that the kind of things which are to be reported and how they are to be reported will be prescribed in regulations.

This section needs to be dealt with very carefully and the fact that I have some legal knowledge brings home to me just how crazy it is. It is wrong that the chief medical officer in one of these hospitals must comply with this section or else find himself in the District Court.

Dr. Woods

My position on this matter was made clear on Committee Stage when I stated:

The measure is an effective provision and I am not prepared to remove it from the Bill because it relates to alleged assaults and injuries on defenceless people. That is all I wish to say about it. The Deputy may wander on talking ad nauseam about the situation but the essence in this is that we have a duty to protect the rights of people in such a situation. The measure is effective and I am not prepared to drop it.

I certainly made clear my views on Committee Stage.

I wish to point out that no member of the medical profession has made any objection to this provision. There are similar kinds of provisions in pharmacy law and in the Misuse of Drugs Act. We are not creating an offence here; it already exits and we are continuing it in this Bill. I am particularly concerned that the civil rights of the patients who have diminished responsibility would be protected against any neglect or abuse. The Deputy makes comparisons with industrial relations and says that this kind of clause would not normally be used in an industrial relations situation. This, of course, is not a normal industrial relations situation. Special privileges are given in terms of control, detention and treatment of people and I am particularly concerned that this would be regarded in the most serious way.

Since Committee Stage it is interesting that I have had a letter from one clinical director stating:

I was impressed on reading the Dáil report (The Irish Times, 2/4/81) to note your amendment making it mandatory for Medical Superintendents, or Clinical Directors, to report happenings of this nature to the Department of Health and, of course, to the Minister.

I congratulate you, and beg you not to be deflected in inserting this amendment. Indeed, any untoward incident affecting a patient should be reported.

He went on to say that there should be no possibility of any cover-up and that this kind of thing does happen in some English institutions. He believes that this measure is an effective one and should be continued. I believe there is no concern about this provision. It has operated in a practical and realistic way and will continue to do so.

Section 45 deals with matters which, by common agreement, are of the most serious nature in any institution. To date commonsense has certainly prevailed in the interpretation of those sections of the 1945 Act. This is all the more so in the setting of the psychiatric hospital where many patients suffer from diminished capacity to a varying extent, given the nature of their psychiatric disability. I do not wish to labour this point but I would ask the Deputy to bear it in mind.

There is no suggestion that any medical officer in charge would deliberately evade the requirements imposed by section 45. Of course, where an incident is not reported due to a genuine oversight or due to the medical officer in charge not being properly informed by his staff, that is a different situation and self-evidently the medical officer in charge would not be liable to conviction in court. The discretion of the Minister must be allowed for in these cases.

I have linked section 45 with section 8 (4) because I believe that section 45 provides an important safeguard for patients and that accordingly it needs to be afforded due force in law. I would be most anxious that section 45 would be subject to rigorous and uniform interpretation and suitable reinforcement will, no doubt, aid the achievement of this objective. Injury as defined, alleged assault and death provide little ground for philosophical interpretation. I do not anticipate that the wider scope of paragraph (c) will give rise to any difficulty in practice. Section 45 is more liberal than the corresponding sections of the 1945 Act, namely, sections 268 and 272 which required that deaths be reported to the coroner and that all injuries to patients, including very minor injuries and injuries existing on admission, be reported to the Minister.

I cannot accept that section 45 places an inordinate responsibility on the medical officer in charge. The scope of responsibility falls wider than might at first appear, particularly given the text of section 8 (4) which makes it clear that impeding or obstructing the medical officer in charge in the performance of any of his duties under this Act, such as the making of reports to the Minister and the CEO of the health board, will attract the relevant penalty.

In the circumstances which exist in relation to these patients this is a valuable and useful instrument and for that reason I propose to continue it.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am interested to hear that the Minister received a letter from some professional person since the last Stage congratulating him on the provisions of this section and on making it mandatory. Did the Minister think of writing to this gentleman and asking him what he thought the section meant? I would be interested to know if he wrote to that man—I am sure the man wrote the letter in good faith, and it is good that there should be a flow of communication from well-informed people to the Minister— asking him what he thinks an assault means. I would not be surprised if the writer would regard an assault as battery, because most people confuse assault and battery.

The Minister should remember that we are not dealing with ordinary conditions of employment and with regulations governing the employment of hospital staff. We are dealing with criminal law. Most people think an assault is a physical hammering of somebody but it is no such thing; that is battery. I would like the Minister to ask the gentleman in question what he thinks paragraph (c) of section 45 means, because I must confess I do not know. I am against enforcing conditions of employment by the criminal law and using loosely drafted sections like that to create criminal offences. There is no point in the Minister telling me he is not creating a criminal offence. He can say he is "continuing" it, if he likes, but he is repealing the 1945 Act and writing into this legislation a section making this a criminal offence.

The Minister told me in his intervention that under the old law the death of any person in a mental institution should be reported to the coroner and he seems to take credit for repealing that provision. Does he think it was wise to repeal that provision? I do not. I think that was a reasonable provision. If a person dies in a hospital theatre I understand the coroner has to be notified. The Minister is now claiming credit for removing a provision in a previous Act which said that if a person dies in a mental institution, whether a State or private mental institution, the coroner must be notified. Was it wise to remove that provision? I do not think so.

The Minister told us he was defending defenceless people. He is right to defend them, but he is emotional about this and is putting forward an emotive argument. I said the last day, and I want to repeat, that everybody who goes to a hospital theatre for surgery is a defenceless person. He is defenceless before he leaves the ward, because he gets an injection to relax him and to ensure that he will not be afraid and when he goes to the theatre he gets another injection which knocks him out. That is necessary, but he is a defenceless person. Sometimes mistakes are made in theatres. The classical example is leaving a swab in a patient and stitching him up. Did the Minister ever think of making that a criminal offence? Does he think it would be reasonable to do so? Of course it would not, although if one were to adopt the Minister's line of logic some serious damage could be done to a defenceless person while under an anaesthetic. That would be a human error and none of us is infallible.

I cannot see any difference between a defenceless person out for the count in a public hospital under the services of consultants provided by the State and a defenceless person in a mental institution. Both are entitled to be looked after and to have the best care possible, but none of their rights should be enforced by the criminal law if a mistake in either case is an error of judgement.

It is clear that this section never was intended to create — I am using the word "create" because that is what the Minister is doing in this Bill — a criminal offence. The Minister says it worked all right, that there would never be any difficulty in interpreting the wider provisions of paragraph (c), and that it has given no trouble to date. He also said that if, due to an oversight, a report of a death were not made or if some member of the staff did not inform the medical superintendent, there would not be a criminal offence. Here the Minister has created an absolute criminal offence without a safety or let-out clause. If he intended to have a let-out clause there would be a provision that it would be a good defence to show (a), (b), (c) and (d), that due to somebody else's fault the medical officer was not informed and the Minister would have discretion. If the Minister is to decide what is and what is not a criminal offence, he will be exercising judical functions. That would be contrary to the Constitution. I am against that sort of thing. The more probing we do into this section the more unreasonable this appears to be. The Minister said that there would be a discretion and he is the person who would be deciding. There is no guidance as to what a person should report.

I admit that I did not raise the question about the coroner being omitted earlier, but I am sure the Minister will accept that quite a number of people would be alarmed to find out that such a provision has been nicely and quietly taken out of the Bill. I am not here to defend the medical or the legal profession or any other section of the community. I am here to ensure that reasonable legislation passes through the House. If I were in the Minister's position I would view a provision that death in a mental institution be reported to the coroner as a reasonable one. It should have been left in the Bill.

Dr. Woods

All of this must be reported to the Minister.

An Leas-Cheann Comhairle

This matter was mentioned in passing by the Minister and the Deputy but is not relevant to the amendment.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I would not have deleted the coroner from that provision. As a lay person with legal experience I hold that it is a completely unreasonable section, was badly put together and creates a criminal offence in loose language that will be impossible to interpret. The Minister is saying that discretion will have to be used but there is no safety clause, no let-out clause which is very common in Acts creating criminal offences.

The anonymous gentleman referred to by the Minister — I am sure he is a very reasonable and well-intentioned person — should read the report of this debate and having done so should write to the newspapers and tell us whether he accepts that it is reasonable to create a criminal offence in this way. I am sure that person was speaking as a doctor.

Dr. Woods

The clinical director of a psychiatric centre who is fully aware of the position.

Mr. Boland

From which Eastern Health Board psychiatric centre?

Dr. Woods

I am not going to inform the Deputy.

Mr. Boland

The Minister should not have read out the letter in that case.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I understand that one of those is engaged in witchhunts all over the place. I do not know if it is that person.

Mr. Boland

Is it the famous Dr. Ivor Browne?

An Leas-Cheann Comhairle

Doctors who are not Members should not be named here. Deputy Fitzpatrick should return to the amendment.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Anonymous letters should not be read in the House. There is a place for such anonymous letters, the waste paper basket. As far as I am concerned the Minister has read an anonymous letter and it has gone into the waste paper basket of my mind.

Dr. Woods

Does the Deputy have one? Is it a large one?

Mr. Boland

Is that the only helpful remark the Minister can make?

An Leas-Cheann Comhairle

The Minister should not intervene and Deputy Fitzpatrick should conclude on his amendment. Deputy Boland should not intervene. He had an opportunity of speaking and he did not take it.

Mr. Boland

The Chair should deal with Deputy Fitzpatrick for interrupting the Minister's interruptions.

An Leas-Cheann Comhairle

Deputy Fitzpatrick should conclude on his own amendment.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The Minister introduced this extraneous matter, if it is such. He introduced evidence but is not prepared to disclose the author. Members who quote in the House are expected to detail the reference but the Minister quoted from an anonymous letter. That may have come from a reliable person or some daft person. I am opposed to the removal of the coroner from this provision. I will be surprised if the section is ever used, but when we are dealing with legislation in modern enlightened times we should draft it accordingly. This provision is not enlightened or even intelligent.

Ministers sometimes tell Members that they are listening to a lecture about law but there is more than law involved in this, there is a lot of commonsense. I have always held that if commonsense is applied to the law one very often gets the correct answer. How dare the Minister say he has listened to a lecture on the law. Is that not what this is all about? Are we not making laws? Far too often our laws are made by people who do not know anything about the law. The Minister has not told me why the Bill, as originally drafted, did not provide that this would be a criminal offence and why he introduced an amendment in relation to this on Committee Stage. He did not tell me whether this provision in the 1945 Act was ever used. I asked him on Committee Stage and again today if it was used, but he did not answer.

Dr. Woods

I answered that on Committee Stage and the reply is contained in the Official Report. We also discussed the question of the coroner and the Deputy did not have any objection at that stage. The Deputy is only airing his objection now.

An Leas-Cheann Comhairle

The Minister is not entitled to come in at this stage.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The Minister is like a jack-in-the-box, hopping up all over the place.

An Leas-Cheann Comhairle

Will the Deputy conclude his contribution on this amendment? There is a lot of repetition of the arguments.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): There is not. We are dealing with the letter from the anonymous gentleman. I should like to make it clear that I am not seeking to delay this debate, because were I to go on talking unnecessarily about this provision I might give the impression that I was talking for the sake of talking. I raised this matter on Committee Stage and tabled an amendment for today's debate because I am deadly serious about this matter. It is an absurd proposition to enforce the conditions of employment of a public servant by the criminal law and to make it an offence for a public servant to overlook something, to forget to do something or make a wrong judgment about something. That is crazy in the extreme.

It is also crazy in the extreme to make such matters as a failure to report any other matter of serious importance to the welfare of such persons a criminal offence. That could mean anything. I am sure that even without being asked to do so, medical officers are sick and tired of reporting to the Minister on things of importance to the welfare of the patients, like housing them properly instead of having dozens of them in huge wards which should be cut down into more homely compartments.

An Leas-Cheann Comhairle

The Deputy is getting away from the amendment, which proposes to delete certain words and figures.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): One thing that amuses me about the Chair, or others who have the busines of controlling debates and order, is that they have a sort of idea that unless a document is of a luminous quality and thickness——

An Leas-Cheann Comhairle

I have given the Deputy every opportunity to explain his amendment. He cannot complain about being curtailed.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): A Deputy could speak for three weeks on a Bill of one section and he would still be in order.

An Leas-Cheann Comhairle

The Chair agrees, but the Deputy on this amendment cannot go into the whole setup of the Bill.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The Chair said I am not in order because all the amendment proposes is to delete a couple of words. I am suggesting the deletion of section 45 because it imports criminal machinery from section 8. I want to know if section 45 makes it mandatory on a medical officer to report to the Minister that mental patients are being housed by the score within huge drab walls that were built in the last century, walls that could not be expected to get better but are most likely to get worse. Has the Minister received any such reports and if so what has he done about them? For instance, does section 45 include a requirement to report to the Minister that patients' clothing needs to be modernised so that they will not be marching around in drab clothes, which has throughly bad psychological effect on them?

An Leas-Cheann Comhairle

The Deputy is again broadening the scope of the debate. We are on Report Stage.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Perhaps the Chair can tell me — maybe he will tell me it is not his business to tell me — what does paragraph (c) of section 45 mean?

An Leas-Cheann Comhairle

The Deputy is broadening the whole scope of the discussion on his amendment. He should stay with the amendment.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am complaining that paragraph (c) of the section is so broad that it could mean anything or nothing and that nobody knows what it means. I am putting certain instances to the Minister accept asking him to deal with them. I am seriously suggesting that the Minister accept this amendment to break the link between sections 45 and 8, removing the criminal element altogether. I am suggesting that if he is still there he should get a sensible person to draft a set of regulations for the guidance of medical officer in charge of these institutions so that they will know what they have to do. I am asking him not to leave this meaningless section hanging around the necks of medical officers and in effect saying to them: “Do that, whatever it is. If you do not do it we will prosecute you and fine you £500 or give you six months in jail”. Would you, Sir, like to get six months in jail?

An Leas-Cheann Comhairle

I would not like to see anybody getting six months in jail.

Amendment put and declared lost.

Dr. Woods

I move amendment No. 3:

In page 7, between lines 20 and 21, to insert:—

"(7) A person maintaining or proposing to maintain a psychiatric home may appeal to the High Court from the refusal of the Minister to give a direction under subsection (6) and the court may, as it thinks proper, confirm the refusal or direct the health board to restore the registration or register the home."

I have considered the point which was raised concerning the provision of a right of appeal to the High Court against the decision of a health board in refusing to register or in cancelling the registration of a psychiatric home. On reflection, I agree that for the sake of consistency it would be as well to specify that appeal can be made not only to the Minister in the first instance, but failing that, to the High Court. Of course, there is in practice access to the courts in any case where a party wishes to contest a decision of the Minister.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): On reading the provisions dealing with registration of psychiatric centres and homes I noticed that provision was there for an appeal to the High Court from the decision of the Minister. That applies to a psychiatric centre, but there is not any such appeal in the case of a psychiatric home. I pointed that out to the Minister on Committee Stage, he has seen the logic of my argument and he proposes to amend the Bill in that respect. I am obliged to him.

Mr. Boland

I understand the point of the amendment but I am still disappointed that it does not contain the suggestion I made that the health boards in the areas in which psychiatric homes are operating would have to maintain a register in a prescribed form which would be available for inspection. Under section 12 the health board may refuse to register a psychiatric home or may cancel the registration. Subsection (3) refers to a home not carrying on business until the day they apply for registration or until registration is refused. Subsection (4) refers to the health board refusing to register or cancelling the registration. Subsection (5) does not refer to registration. Subsection (6) refers to the removal of the home from the register. Although there is a reference right through section 12 to a register and to the onus on the health board to decide on the registration or otherwise of private psychiatric homes — there is an implied register somewhere in existence — it does not state anywhere in section 12 that the health board is to have a register or that such register be made available for public inspection during office hours, as section 9 places an obligation on the health board to maintain such a register in respect of district psychiatric centres. I raised this point on Committee Stage and, at that time, I was unhappy with the reply and the comprehension of the Minister in relation to the point I was making. I am disappointed that the amendment he has now introduced on section 12 does not appear to deal with the fact that, although a register is referred to right through the subsection of section 12, the setting up of the register and, more importantly, the making available of it for public inspection during normal house, by the health board, is not set down in section 12. That is a continuing defect in section 12 and I am disappointed that the Minister did not grasp the point I made on Committee Stage.

Dr. Woods

As far as the registered psychiatric centres are concerned, the Minister will keep the register. As far as homes are concerned, I undertook to cover this by regulations——

Mr. Boland

I am sorry for interrupting. Subsection (4) obliges the health board to maintain that register.

Dr. Woods

Yes, for the district centres. As far as the private homes are concerned, I undertook to provide by regulation for the maintenance of a register and I will do that.

Amendment agreed to.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I move amendment No. 4:

In page 7, between lines 25 and 26 to insert the following:—

"14—(1) Where an applicant is being treated in a psychiatric centre as a voluntary patient he may, at any time, give notice of his intention to leave the psychiatric centre not earlier than seventy-two hours thereafter and he shall be so entitled to discharge himself at any time after the expiration of such period.

(2) Where the applicant is the person himself the medical officer in charge of the centre shall, where practicable, notify the relatives of the applicant of his intention to discharge himself immediately upon receiving notice of the person's intention to do so.

(3) The Minister may, by regulation, vary the period of seventy-two hours as set out in subsection (1).

(4) Where it is proposed to make a regulation under this section, a draft of the regulation shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving the draft has been passed by each such House.".

This amendment proposes to insert a new section which would provide that a voluntary patient in a psychiatric institution would be required to give 72 hours' notice of the patient's intention to discharge him or herself and leave the institution. Throughout the course of the debate on this Bill, the Minister emphasised that mental illness should be treated like any other illness. A great number of patients are now voluntarily seeking attention in psychiatric institutions. That is a very good thing. The old days, when people were brought to these institutions by the Garda are now rare. Some of us can remember the traumatic experience of seeing unfortunate patients being brought to institutions. It is good that this has been done away with. Modern treatment and drugs have made that sort of thing unnecessary. The net result is we are now going to have great numbers of people going into these institutions as voluntary patients, some of them quite seriously ill, some of them requiring long-term treatment, some requiring to be hospitalised in their own interests and some requiring to be hospitalised for the safety of other people or other people's property. All that is because these people are mentally afflicted and not capable of making balanced or reasonable decisions on certain things, because they suffer from delusions about other people.

In the Bill, as introduced, these people could discharge themselves without any notice. At any time, if they were voluntary patients, they could walk out of a mental institution. I know there was a great volume of opinion, lay and professional, who thought that was unreasonable and dangerous. They thought it was not in the interests of the patient or other people. I know psychiatric consultants' organisations advised the Minister that there should be 72 hours' notice. The Minister held fairly strong views about this and he was not prepared to agree that 72 hours' notice should be given. He agreed that 24 hours' notice should be given. That is he way the Bill stands at the moment. The effect of my amendment would be to extend the period of 24 hours' notice to 72 hours' notice. I think 72 hours' notice is necessary, so that medical men in charge of these centres can observe and carry out a thorough examination of the patient and decide whether, in the patient's interest, he is fit to be discharged, or in a fit state of health to take up his position in the outside world. That is all I purpose. The Minister pardoned me for referring to my experience as a lawyer. Experiences are helpful. I know a case where a patient discharged himself by walking out or by abusing parole or freedom given and, within a very short time, a person was killed, whom the patient thought was responsible for putting him in hospital. There are other cases — it is too bad we have to talk about them but that is what we are here for — where patients are so depressed they get out and then take their own lives. That is quite common. I have given the example of the patient who killed someone. Naturally, I will not say who the other person was.

We are inviting trouble because a person may want to discharge himself for the wrong reasons, because he is so ill he thinks he should be discharged. If a person goes into an ordinary, general hospital, he is told he will only be required to stay a week to do some tests. At the end of the week he is told they would like to keep him for another week to do some more tests. The person will agree because he is capable of coming to a reasoned decision and making up his mind in a reasonable manner. But when a doctor in a mental institution tells a person he is not well enough to go out and that they want him to stay longer, to try new tablets and new medicines in his treatment, the poor patient is so mentally ill, he says he is going immediately. According to the Bill as drafted, out would go that person.

The Minister has put forward his amendment against the advice of the Institute of Consultant Psychiatrists. He is providing for a period of notice of 24 hours and has refused to accept the suggestion of 72 hours. When we discussed this on Committee Stage the Minister told me he had again discussed the matter with the consultants and that they were reasonably happy about the matter. I say that in this case we should err on the side of safety and caution in the interests of the patient and of other people.

If a person has to seek treatment as an in-patient in an institution because his mind is so disturbed he is unbalanced and is incapable of coming to balanced decisions or if he is suffering from delusions about people or things, it is not unreasonable to requires him to give 72 hours' notice of his intention to leave the institution. I submit this period of notice is necessary to allow the medical specialists to observe him and to decide whether he is in a fit condition to take his place in the world. A period of 24 hours is too short to enable this observation to be carried out. For a considerable portion of 12 hours the patient will be asleep, perhaps with the aid of sleeping tablets. It may happen that the medical person who is looking after him is off duty for a few days and the person in charge of the institution will not have an opportunity of consulting with him.

I think the Minister is being quite unreasonable in this matter. He is telling the House that if the patient wishes to leave an institution after 24 hours then we should let him do so. The Minister's thinking on this matter is somewhat alarming. When the Minister introduced the Bill it provided that no matter how ill a patient might be if he admitted himself voluntarily to an institution he could discharge himself when he wished. We know that people who are not ill change their minds about various things. I am not an expert on mental illness but I imagine people suffering from this illness are likely to change their minds more frequently. The commonsense of my amendment is quite apparent and the Minister should reconsider the matter.

I am not advocating locks and chains or high walls. I applaud the Minister and his predecessors for the part they have played in taking locks, chains, high walls and padded cells out of the treatment of mental illness. I am telling him that if he accepts this amendment he will be falling into line with the advice of medical consultants and he will be promoting voluntary treatment rather than discouraging it. I am surprised the Minister does not appear to be prepared to adopt a reasonable attitude in this matter.

Dr. Woods

We had a fairly lengthy discussion on this matter on Committee Stage. At that time I pointed out the very desirable changes that have taken place in relation to the treatment of mental illness. I think all Members want to see more changes in this area and to normalise so far as possible the treatment of patients suffering from this illness. We know that 183,000 patients attend at out-patient clinics and this is a major and welcome development. In our modern hospitals there are acute psychiatric centres and this is the trend we are promoting. The vast majority of people will attend in a voluntary capacity.

Deputy Fitzpatrick considers that the 24-hour period provided for in my amendment is insufficient but I do not agree with him. It is a question now of what kind of notice is necessary. In 1945 when the original Bill was introduced 72 hours' notice was considered necessary but in the light of developments in modern medicine I consider 24 hours' notice to be adequate. Deputy Fitzpatrick seemed to be concerned about specialist staff being off duty. I should like to assure him there is a requirement to provide cover if the psychiatrist or the specialist staff are away.

The 24-hour period will allow ample time for examination by two registered medical practitioners leading to formal reception by the making of a reception order if that is considered necessary. Nearly all psychiatric centres are situated in cities or in the larger towns and I do not anticipate any difficulty with regard to that aspect. When a patient's condition deteriorates to such an extent that formal detention is necessary, my amendment will cover that situation. However, I do not accept that a voluntary patient who does not satisfy the criteria for detention can reasonably be retained in a psychiatric centre for longer than 24 hours. A patient either satisfies the criteria for detention or does not. Deputy Fitzpatrick was leading us into a very vague area here. He wished to have the power to retain a voluntary patient for 72 hours merely because the patient was unsettled, unstable or not capable of coming to a rational decision. Many out-patients who have never been in a psychiatric hospital could fall into these loose categories.

My amendment provides that a voluntary patient must give 24 hours' notice of his or her intention to discharge himself or herself. If that patient does not satisfy the criteria for detention and if at the end of the 24-hour period he or she still wishes to leave the hospital the patient will be allowed to do so. A number of very experienced practising consultants have informed us that they have never had any problem with voluntary patients discharging themselves from hospital. Regarding the provision of the 24 hours initially I was inclined towards the view of having no provision for a voluntary patient, but in deference to the wishes of some members of the profession and recognising that there may in certain instances be a need — although they made it quite clear that it arises only very rarely — then by providing the 24 hours I feel that this will meet the requirements. I am sure, from discussions I had with the medical profession in this area, that they are quite happy with the 24-hour arrangement given our modern medical developments generally. For that reason I believe that the 24-hour period will be adequate, and I would not support the amendment to bring back the 72 hours.

Dr. Browne

I have sympathy with the Minister in relation to this Bill because I think that in his attempts on this section he is in a difficult dilemma. I was not aware that he intended that there should be any 24, 48 or 72 hours' restriction on people coming in as voluntary patients. I would have preferred the original provision where there could be no restriction on anybody presenting himself or herself as a voluntary patient. The Minister is right that one of the grand, very progressive developments in psychiatric services has been the remarkable increase in the number of people who are prepared to trust our psychiatrists and psychiatric hospitals and to believe that they may get some help if they go there in a period of emotional upset.

I am sorry that the Minister has conceded the right of retention for even 24 hours. As I have said, I sympathise with him because it is the old business on this special question and on psychiatry as a whole, quot homines, tot sententiae. There is so much difference of opinion in psychiatry about the whole profession and the whole concept of psychiatry and between the diagnostic criteria of psychiatrists in the same hospitals, in different hospitals and in different countries. It is a misconception to equate psychiatric disorders with ordinary medical diseases in some ways. No doctor has any doubts about what is wrong if another doctor tells him that this man has pneumonia, this patient has measles, somebody else has cancer or a broken leg. He has no difficulty in deciding what his colleague means, but that is not true of psychiatry. It is a very inexact profession. This is notorious, and I am not going to detain the House in an attempt to demonstrate this wide discrepancy between one physciatrist's interpretation of psychiatric illness and another's but it does exist and is demonstrable. However, as somebody who has had to deal with this business of the doubtful patient I accept completely Deputy Fitzpatrick's argument. I am quite sure that what he said is true, and it is a dilemma of a psychiatrist that he very rarely gets through professional life without at least one suicide, and the possibility of even homicide has to be considered. It is a perfectly reasonable case for Deputy Fitzpatrick to make.

We may go on from that to talk about hard cases making bad laws. The advance towards the admission of the voluntary patient has meant that you get very marginally unhappy or disturbed patients coming for help and they may be coming to the hospital simply because they have had trouble in the home, a row in the job, a row with the girl friend, or have been on a alcoholic binge and want to lie up for 24 hours or whatever it may be. In the hospitals we had built up a general feeling of the freedom of admission and the freedom of discharge, the sense that you would not be locked up. In folk memory is the appalling attitude one had about mental hospitals having high walls, bars, people in uniforms. I am not sure whether it was Deputy McEntee or Deputy Ryan who introduced legislation which at that time was a very enlightened advance, the idea of voluntary admission. Doctors who felt — I was one — that the individual quite frequently was the best judge of when he should come in or go out held the idea that once a person came in we could not deny that person the right to walk out again if he or she wanted to do so. Is it not true that we have got to the stage of the open door, the walls and bars and the prison feeling have gone from most of the advanced hospitals? Therefore, I do not know how to enforce the idea if you want to keep somebody who came in voluntarily and does not wish to say. You either have to stupefy the person, as Deputy Fitzpatrick said, by knocking him out, a very distasteful thing to do, or lock him up, tell him that he may not go out, and if he insists on going out the poor psychiatric nurse has to force him to desist. In practical terms this proposes an assault physically upon the patient — at least it can lead to that if the person wants to go out. Secondly, surely it is depriving him of the very fundamental right of habeas corpus, the right of each of us unless we are committed before the courts to personal freedom. Nobody can wrongfully detain a person. An individual who wants to go from one place to another has that right under the protection of the courts. Therefore, when you decide to take this power of restricting the individual's right for 24 or 72 hours — or 172 hours — does not that arise? If you take either the Minister's 24 hours or Deputy Fitzpatrick's 72 hours you are faced with somebody being told: “I considered you and you are not fit to go.” You then have a continuing dilemma and you end up presumably putting somebody on a temporary form and keeping him against his will for any length of time, perhaps for years. We all know there are people who have been in psychiatric hospitals for years.

By doing this we are eroding a fundamental freedom and creating fear. I would feel fear if I had to go into one of these hospitals. The fear is: "In some way or other they may misunderstand me and my psychiatric condition or mental condition. They may not know that there was a relatively trivial incident which I have possibly exaggerated. I am now faced with spending the rest of my life there." I know that is an exaggeration, and not likely to happen particularly under the protection given recently. It is something which could enter into the thinking of somebody who was told suddenly: "I am sorry, you cannot go." If people want to go in on a voluntary basis they will know that there is the 24 hours or 72 hours provision. They know they may be told: "I am sorry. You cannot go at the end of the 24 hours or the 72 hours." That could be a deterrent to somebody going into the hospital.

The Minister has seen these institutions and I am sure Deputy Fitzpatrick knows such places. I intend no disrespect to the staffs of these institutions. They are marvellous dedicated people considering the conditions under which the nursing and the medical staff work. Somebody who comes from a different environment would be horrified at the conditions under which they were to be treated and incarcerated. Under the law this may be done for 24 hours or 72 hours and the person may not like the place. I recall being treated for tuberculosis. I did not like the place and I walked out. This implies no disrespect to the people in charge. It was just a dreadful hospital physically.

We are making a judgement about somebody and making him very unhappy. At the end of the row between the staff and the individual who goes in voluntarily we have a very disturbed person, a very angry person, a very uncooperative person. I should not care to have the job of trying to pacify such a person. The Minister was told by most consultants that you very rarely have trouble with somebody you want to keep in, but there is difficulty in trying to encourage some people to stay in the slum-like conditions of many of our hospitals. It is not irrational behaviour on the part of the person trying to leave. It is perfectly reasonable behaviour. You are then behaving irrationally as a member of the staff by asking a man or woman to get into a bed in some ward which has primitive toilet, sanitary and washing facilities.

It would be much wiser for the Minister to allow the matter to rest. I suppose he is not likely to do that. It is a difficult decision for him. It was unwise of the people who advised him to look for this authority, this power. I always disapproved strongly of the power I had as a psychiatrist to detain people, to deprive individuals of their freedom for weeks, months and years. Deputy Fitzpatrick knows the enormous difficulty there is the whole way from the District Court to the High Court and the Supreme Court and the various appeal courts in depriving an individual of his freedom for 24 hours. We remember the row we had about the Offences Against the State Acts. This question of personal freedom should not be treated lightly. The deprivation of individual freedom should not be treated lightly and should not be entrusted to anybody unless there are considerable protections such as we have in the courts system. Not only have we a series of appeals to the higher courts, we also have the defence of the barristers and solicitors making our case.

I have always been very surprised that we are chosen to make these decisions as if we were infallible in some way. In relation to psychiatry we certainly are not infallible. It is as if we were unlike judges and lawyers and would not or could not make mistakes. Of course we can make mistakes. Deputy Fitzpatrick mentioned the possibility of homicide or suicide. He is quite right. This can happen, but it could happen to two people sitting in the Burlington. Somebody could go out and commit homicide apart from the obvious example of a drunken person killing someone with a motor car. Somebody could jump in a river and commit suicide. This type of thing creates a real dilemma for an individual psychiatrist. If somebody comes to him and says he is going out to murder his wife he cannot take that lightly. People who say they never had any real difficulty with this issue are not correct. There are ways in which you can persuade people.

It takes courage to go into a mental hospital. There is the whole hinterland of folk horror of mental hospitals. We all have it. We could be accused of betraying a trust. There are people who will not got near a psychiatric hospital because of misplaced excessive fear. If the fear is there, it is there and you have to recognise it. I do not think the period should be extended to 72 hours. My difficulty is that I do not think a period of 24 hours is much better than 72 hours.

A very serious and important principle is involved in the question of the detention of a person by somebody like a psychiatrist without some of the very complicated paraphernalia we have in the courts and which I am sure Deputy Fitzpatrick would defend most vehemently. There are all the protections including advocates like himself to protect you against arbitrary detention. This is what we are doing when we give any individual the right to tell a fellow citizen "I am going to arrest you and keep you in detention for a specified period because in my judgment you are not fit to be out among your fellow citizens".

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I have listened to Deputy Browne's contribution with great interest and respect. Deputy Browne is an authority on this sort of thing and we must have regard to what he says. The Deputy has been fair and has put it on the record that he belongs to the section of the profession who have always held that there should not be a restriction on the liberty of people and that psychiatric patients should have the minimum restrictions possible imposed on them. A word that crept into Deputy Browne's contribution frequently was “dilemma”. The Deputy spoke about the dilemma in which the Minister finds himself, and in which the consultants find themselves when having to decide on matters like this. In the early part of his contribution the Deputy said that unlike a cold or the flu where a GP can say to the consultant that the patient is suffering from a specific ailment one cannot do that in relation to a psychiatric illness where one is dealing with an uncertain condition, a condition which is hard to diagnose or to isolate. The Deputy said that all these dilemmas present themselves to people who are treating mental patients and to people like the Minister who have to come to a decision as to whether to give the right to discharge themselves without notice to a voluntary patient as Deputy Browne would wish. Deputy Browne feels that if a person goes into a psychiatric institution as a mentally ill person he should be at liberty to walk out of that institution at any time. The Deputy also concedes that there is the risk of either suicide or murder but says that it is rare. However, that danger is there and there is a danger to property and to people. At best we have doctors differing here. I have the report from the Association of Psychiatrists which was sent to the Minister, and as a body representing psychiatrists they suggest that the advisable thing to do is to impose a 72 hours notice obligation.

The Minister is on record as saying that the consulting psychiatrists were reasonably happy with the Bill. That means that they felt that 24 hours were better than none. If I were Minister for Health faced with two sets of advice I would come down on the side of prudence, on the side of the safety of the individual and of the public. Nobody likes going into hospitals or nursing homes, even the most luxurious ones. We would prefer to stay at home. The Minister speaks about normalising the treatment of mental illness and bringing it into line with ordinary illnesses. However, one cannot normalise anything that is abnormal. If a person is ill enough to be encouraged to go into a psychiatric institution for treatment he should at least be required to give 72 hours notice even if on the basis of "as far as the medical officer saw fit."

The effect of this in some cases will be to have reception orders made detaining people where they would otherwise not be retained. I assume that psychiatrists are ordinary people who act in an ordinary way, and it is reasonable to assume that if after a week with a person in hospital the psychiatrist is requested to allow his discharge instantly as Deputy Browne would have it and as the Minister originally would have it or if he is faced with a request for a discharge on 24 hours notice where the patient will be asleep for eight or nine of those hours, he has any doubt about the wisdom of the discharge he will come down on the side of safety and will refuse the request. If the psychiatrist has a doubt he will need some time to make up his mind and he will not let the person come out and take his place in the outside world. The psychiatrist will see somebody else and advise that the person should be detained. If the psychiatrist could have 72 hours notice it is quite possible that he would come to another conclusion and that he would not detain the patient. It is on the cards that the end result of this will be to have more detention orders rather than fewer.

The 72 hours notices have been enforced for I do not know how long and the medical profession are now split as to whether it should be 72 hours, 24 hours or no notice at all. Just as the medical profession are split on it so must be the medical officers in charge. It therefore falls to the Minister as the political head of the Department to exercise his balanced judgment, and he should come down on the side of more caution. The Minister could include a provision to say that notice was not necessary if the doctor were perfectly satisfied that the person was only there because he had spent the night on the beer or something like that, but that the psychiatrist could detain a person for 72 hours for further observation if he felt it necessary. That would be a sensible thing to do. Just as the medical profession appear to be split on it — although the Association of Consultant Psychiatrists think 72 hours is necessary — so must the medical people in charge of psychiatric institutions be split on it. Those who think casually will make a detention order. I do not want to be misunderstood, but I do not know how long or short a time the Minister will be where he is on that side of the House, but supposing someone is let march out of an institution and then does something which has consequences similar to the Stardust tragedy we will have people marching in here demanding inquiries and ready to roast the Minister. They will want to know why this was tolerated. They will want to know why this loose method of letting unfortunate people not responsible for their conduct, people in institutions for their own safety and protection, march out of these institutions and cause desperate tragedies.

The Minister says that his amendment provides the machinery for detention. I do not think it does. I maintain 24 hours is totally inadequate for a number of reasons. First of all, medical men are entitled to week-ends off. The Minister says they must get a stand-in. The person who will stand in will not be the patient's doctor, who has been treating him for a considerable length of time. The stand-in will see him for the first time but he must let him out on 24 hours notice. I listened with great respect and interest to Deputy Dr. Browne, and instead of convincing me that the right approach is to have no notice or a very short notice I believe the opposite is the case. He spelled out as I could not spell out the difficulties facing those who have to make these decisions. We know that some medical people are slanted towards a very liberal and free approach. Others err on the side of caution. What is required is a happy medium. Some of those who are loudest in their cries for no restriction would be the very first to complain about not imposing restrictions should a liberal approach lead to disaster. I make the case as clearly as I can. The medical profession are split on this. The association representing a most reputable body of psychiatrists is in favour of 72 hours notice and they regard the Minister's 24 hours notice merely as a move in the right direction. The Minister should err on the side of caution and accept the amendment.

Amendment put and declared carried.

Dr. Woods

I move amendment No.5:

In page 7, line 32, after "sister-in-law" to insert "or the uncle, aunt, nephew or niece by consanguinity or affinity".

Deputy Fitzpatrick suggested that aunt and uncle should be included at section 14(a) among the list of those relationships and kinships which would disqualify a medical practitioner so related to a person from making a recommendation for the reception of that person. I am accepting his suggestion in regard to section 14(a).

As a result, it is also necessary to include niece and nephew in the list for the sake of consistency.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am obliged to the Minister for accepting this amendment. I suggested that the Minister should add to the list of those disqualified an uncle or an aunt because they could be regarded as people who could be influenced in making a recommendation. I am glad the Minister has gone even further and included nephew and niece.

Amendment agreed to.

An Ceann Comhairle

Amendments Nos. 6 and 7 are related and may be discussed together.

Dr. Woods

I move amendment No. 6:

In page 7, line 40, to delete "received and detained" and substitute "received, detained and treated".

At Committee Stage, Deputy Fitzpatrick moved an amendment to insert the words "treatment and care" after detention in section 15(1). At Committee, I accepted the general principle of this amendment in relation to this section and I therefore propose to insert the reference to treatment. This will now necessitate a companion amendment at the start of subsection (1) i. e., the first line there should now read "Where it is desired to have a person received, detained and treated in a psychiatric centre...".

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): On Committee Stage the emphasis in this section appeared to be on reception and detention. It seemed to be out of line with the alleged thinking behind the Bill, to normalise the treatment of mental illness and bring it into line with other illnesses. We just had here “reception and detention”, which sounded to me very much like incarceration or the old lock and key and chains hanging from the belt attitude. At least, the inclusion of the word “treatment” after “detention” in each case will show that the primary object of bringing a person into an institution is to treat him for mental illness and try to get him better again.

Amendment agreed to.

Dr. Woods

I move amendment No. 7:

In page 7, line 44, to delete "reception and detention" and substitute "reception, detention and treatment".

Amendment agreed to.

Dr. Woods

I move amendment No. 8:

In page 8, to delete lines 9 and 10 and substitute:—

"(d) at the request of a parent, guardian or spouse, or of a brother, sister, son or daughter being over 18 years of age, by an authorised officer,".

Deputy Fitzpatrick, speaking on subsection (2) at Committee Stage expressed some concern over the position of the spouse, brother, or sister of a mentally ill person who is not ordinarily resident with him. The Deputy felt that such non-resident relatives would be unduly restricted in seeking a recommendation for reception under the subsection. I would point out, however, that the nonresident spouse, brother or sister can apply for a recommendation for reception under the terms of section 15(2)(g), which covers the general case of direct application to a medical practitioner "by any other person". A non-resident spouse, brother or sister could also, in practice, draw the attention of an authorised officer to the case of a mentally disturbed relative.

However, I accept the general thrust of the criticism which the Deputy was making. I propose, therefore, to amend section 15(2)(d) so as to indicate clearly that any spouse, brother or sister, whether resident or non-resident with the patient, may request an authorised officer to apply for a recommendation for reception subject only to the brother or sister being over 18 years of age, as at subsection (2)(b).

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): During the discussion on Committee Stage I raised the point mentioned by the Minister. As far as I can remember, the Minister said that the people mentioned in subsection (d) must be resident with the patient. I pointed out, and the Minister now admits it, that the word “such” in subsection (d) related to the other people who had to be resident there. The amendment, which the Minister has now introduced, is an improvement and qualifies a parent, guardian, spouse, brother, sister, son or daughter, even if they are not living with the patient, to apply for a recommendation provided the people concerned are over 18 years of age. We could have a long argument about 18 years of age but it is an improvement and I accept the amendment.

Amendment agreed to.

Dr. Woods

I move amendment No. 9:

In page 10, line 5, to delete "arrange for" and substitute "provide".

At Committee Stage I gave an undertaking to look at Deputy Boland's amendment which sought to clarify the terms of section 21(3) concerning the provision of escorts by members of the Garda Síochána at the request of the medical officer in charge. I accept the principle involved in the Deputy's amendment. I agree that it is preferable that subsection (3) should read "The Garda Síochána shall, if so requested, provide the escort" and I propose to amend the subsection accordingly.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The word “provide” is a better word than “arrange for”. I also raised the point about the wording of this very short subsection, which reads:

The Garda Síochána shall, if so requested, arrange for the escort.

The amendment will make this subsection read as follows:

The Garda Síochána shall, if so requested, provide the escort.

That is probably an improvement. The request must be made to somebody. Perhaps it is another section where the request must be made to the Garda Síochána. I pointed out that it would be much better to specify the officer of the Garda Síochána. Sometimes it is a sergeant, an inspector or a superintendent. In this subsection we speak about the whole force, which is very indefinite.

An onus should be put on somebody in the Force. The Minister has not done that. I have only the right to speak once on this amendment moved by the Minister. The Minister has the right to reply. Is he satisfied that this subsection is properly drafted to identify the member of the Garda Síochána who shall provide the escort? I am sure it would be the superintendent of the district in which the patient has been resident at the time of being brought to hospital. The term Garda Síochána is much too wide and indefinite.

Dr. Woods

The point concerning the provisional access to the Garda Síochána is to the general body rather than to any designated officer, such as the superintendent, in cases where the medical officer in charge of a psychiatric centre is seeking a Garda escort. This is the point which the Deputy is raising. There are two points to be made. I understand that the reference to the Garda Síochána in a collective, non-specific sense is quite in order from the legal standpoint.

Deputy Fitzpatrick is quite correct in pointing out that this format is a little unusual. Often access to the Force in legislation is provided for by specific reference to a particular rank, for example, the superintendent of the district where the psychiatric centre is situated in the context of this Bill. Such particularity, however, is unnecessary and in the specific context of this section is undesirable.

I should point out that such particularity would not be very practical, given the circumstances which may arise in some cases of mental illness. We are, in effect, talking about a form of crisis intervention when the Garda escort may well be required, as a matter of urgency, to convey a very disturbed patient from an outlying and remote area to a psychiatric hospital in an urban centre. Experience has shown that contact with the Garda is established at the local level. In such cases it is a reasonable procedure, and hence I do not see any advantage in altering the section in this respect.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I know I am not entitled to speak again, but I should like to say that the Minister may not be aware that if the local superintendent was made responsible there would be a much better chance of getting an escort than applying to a barracks that is closed up for the weekend with one or two gardaí there and a notice on the door asking people to call somewhere else. We find that the remote Garda stations are more often unmanned than manned. If a superintendent was responsible he could telephone somebody to do the job.

Dr. Woods

He might have difficulty in getting somebody.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): A person would certainly have difficulty in getting into the barracks.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 11 is consequential on amendment No. 10 so both amendments will be discussed together, by agreement.

Dr. Woods

I move amendment No. 10:

In page 11, lines 7 and 8, to delete "the person and the applicant for the recommendation for reception of the person" and substitute "the person, the applicant for the recommendation for reception and the registered medical practitioners or practitioner who signed the recommendation".

Deputy Boland's amendment to this section on Committee sought to include the two registered medical practitioners who signed the original recommendation for reception and the nearest living relative of the patient among those who are to be informed when a reception order or an extension order is made. I accept Deputy Boland's view in so far as the two doctors are concerned. However, I cannot accept the inclusion of "nearest living relative" for a number of reasons.

The section as drafted already provides that the patient and the applicant for the recommendation for reception shall be informed of the making of a reception order or an extension order. The applicant for the recommendation for reception will, in the vast majority of cases, be a close relative of the person, drawn from the categories given at section 15(2). Indeed, the applicant will often be the nearest living relative.

The only real situation where a nearest living relative would not necessarily be aware of the detention of a patient arises where this relative is living abroad. In such a case, however, it may well prove very difficult to trace the nearest living relative, particularly if he or she has been resident abroad for a number of years and has moved from place to place, as is often the case.

The patient's rights are nevertheless fully guarded in such a situation, given the possibility of application to the review board by the patient or by others acting on his behalf, and there are also the safeguards provided by automatic review of detention.

Debate adjourned.

Dáil Éireann debate - Thursday, 9 Apr 1981

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

Dáil Éireann debate -
Thursday, 9 Apr 1981