(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,
(c) any other matter of serious importance to the welfare of such persons.
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.
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.
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.