Mental Health Bill, 1999: Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 8:
In page 11, between lines 16 and 17, to insert the following:
"(3) The commission shall, within 6 months of its appointment, publish comprehensive guidelines and definitions on what constitutes "personality disorder" or "social deviance" as described in this Act.".
–(Deputy Neville).

We were speaking about the guidelines and definition of "personality disorder". The Minister of State made the point that the interpretation of social deviancy should be made on a clinical basis, that a clinician should decide on the matter of social deviance and personality disorder. While there is some merit in having a clinician decide what is a personality disorder, how does a clinician decide what is socially deviant in the light of our previous discussion when we outlined that social deviancy may be different for those from different ethnic groups and cultural backgrounds in our developing multi-racial society?

The Minister of State said the amendment is outside the scope of the Bill which I find difficult to understand. What we are trying to do is ensure an involuntary admission of a person to an approved centre will not take place because a person is suffering from a personality disorder and socially deviant. One could have someone interpret social deviancy in various ways because of their ethnic background. I take issue with the defining of these issues because, as we are all aware, in practically every Bill there is a section dealing with interpretation of terms. In section 2 of the Bill there is an interpretation of what is an admission order, an application, an approved centre, an inspector and a renewal order. There is even an interpretation of what is a relative – rightly so – but there is no definition of what is a social deviant in the context of the legislation. While I appreciate the difficulty in introducing such a measure, my amendment under which the commission would examine the issue and report on it would improve the Bill.

I again support Deputy Neville on this point because it is stated in the Bill that a person cannot be involuntarily committed by reason only of personality disorder or social deviancy. However, those reasons could be given as part of the justification for committal. Were one to ask every Member of the House what was meant by this, one would receive a different answer from each. If one were to ask every Member of the House what social deviance meant, one would get a different answer. Some people feel threatened by the type of eccentric behaviour one sometimes sees in the street, while others would say it is part of human eccentricity and would not be bothered by it. When is social deviance considered to be such and when is it not? It is not acceptable to put such a significant concept into a Bill without at least defining or including a mechanism to define what it means. One could embark on a long and learned social and cultural treatise on social deviance. It is important to get the definition right. I would have thought a commission which has been charged with various duties could also be charged with this duty. Before Question Time, the Minister of State said this was not part of the commission's duties.

It is important to point out that the medical experts will determine whether the person suffers from a mental disorder. They are not being asked to define whether the person is socially deviant but whether they suffer from a mental disorder. It is on that basis that the involuntary admission would be made. That would be reviewed after the limited time of 21 days. The arguments made by the Deputy show how impossible it would be to define social deviance, but that is not the issue. The issue is whether the person is suffering from a mental disorder.

Why is the Minister of State avoiding this issue? She is now saying that personality disorder is dealt with in the Bill.

Or a personality disorder.

The Bill states that the "involuntary admission of a person to an approved centre by reason only of the fact that the person is suffering from a personality disorder, is socially deviant".

We have to show that it is mental disorder, not just any one of the three outlined.

We must show they are not suffering from any one of the three outlined.

No. We must show they are not suffering only from one of those three and that they have a mental disorder.

"Socially deviant", which could refer to eccentric behaviour, could be interpreted as a psychiatric condition. The behaviour could be unacceptable to one culture in certain circumstances. We are not qualified to question what is mental disorder and mental illness.

We are not qualified to do so and that is why we must leave it to the experts.

That is why I did not try to interpret it in an amendment. We want the commission to publish comprehensive guidelines on what it believes constitutes personality disorder or social deviancy. I am not trying to interpret those terms, but there should be a mechanism to interpret them. The Minister of State said this issue is not the responsibility of the commission. We tabled the amendment to make it a responsibility of the mental health commission and to ensure there is no confusion and that clinicians do not make different interpretations. We do not want a person whom this section ensures will not be involuntarily admitted to a psychiatric institution to be involuntarily admitted to a psychiatric institution because of a clinician's interpretation of the terms. There is confusion among clinicians about personality disorder. There are clinicians who strongly maintain that there is no such thing as attention deficit hyperactivity disorder. That is an example of how clinicians differ. They will also differ about the meaning of social deviancy. Some clinicians may interpret personality disorder as mental illness.

We, as legislators, must examine this subsection and give the new commission the responsibility to report back to the Minister and to publish comprehensive guidelines. Because this area is difficult, we did not suggest it should publish comprehensive interpretations of those terms. We want guidelines to ensure consistency between clinicians and the different institutions which make decisions about involuntarily admissions. We want the commission to examine this and to publish guidelines. We are not trying to interpret these terms but we are asking for a system to be put in place to clarify and protect section 7(2).

Amendment put and declared lost.

I move amendment No. 9:

In page 12, line 6, to delete "subsection (1)(c)” and substitute “subsection (1)(d)”.

This is a technical amendment.

Amendment agreed to.

I move amendment No. 10:

In page 13, line 16, to delete "that" where it secondly occurs.

This is another technical amendment.

Amendment agreed to.

I move amendment No. 11:

In page 14, line 3, after "centre" to insert "or a consultant psychiatrist acting on his or her behalf".

This amendment relates to the power of the clinical director to decide whether the gardaí should be called to assist staff in the transfer of a patient to hospital. It allows for a consultant psychiatrist to act on behalf of the clinical director. This may be necessary in urgent cases where the clinical director is not available, for example, where he or she is on leave.

Amendment agreed to.

Amendment No. 12. Amendment No. 13 is an alternative. Amendments Nos. 14, 16, 21, 26 and 27 are related. Amendment No. 15 is an alternative to amendment No. 14. Amendments Nos. 17 and 18 are alternatives to amendment No. 16 and amendment No. 22 is an alternative to amendment No. 21. Amendments Nos. 12 to 18, inclusive, and amendments Nos. 21, 22, 26 and 27 may be discussed together by agreement.

I move amendment No. 12:

In page 14, line 49, to delete "28" and substitute "21".

The question of how long a person should be involuntarily detained before his or her case is reviewed has been one of the contentious issues in this Bill. The 28 day timescale for an initial detention envisaged in the Bill was criticised on Committee Stage. The Minister listened carefully to all the arguments made and appreciates the concerns various interests have in relation to the length of time it will take to complete a person's review. However, the Minister also has a duty to ensure that whatever legislation is enacted by this House is realistic and can be implemented.

The logistical implications of the review process proposed under this Bill are enormous. At present there are approximately 2,400 involuntary admissions to psychiatric hospitals per year. Every admission will have a review process initiated in respect of it. The Department has estimated that approximately 2,000 completed reviews per year will be required under the provisions of this Bill. A volume of this magnitude will require a substantial investment in staffing and information technology, and comprehensive training for all personnel involved to ensure that the time scale involved in this Bill is complied with in all cases.

Having reviewed the issue comprehensively, and bearing in mind the concerns expressed about civil liberties and the administrative implications, the Minister has come to the conclusion that 21 days is the absolute minimum required to guarantee a completed review within the statutory time scale. This is for every person admitted involuntarily to a psychiatric hospital. Accordingly, the amendments proposed for the Bill will reduce the time scale for an admission order and for the completion of a review from 28 days to 21 days.

If, once the system is up and running, it is found that the volume of cases is lower than anticipated, or that the administrative process is quicker and more efficient than anticipated, the Minister is prepared to revisit this issue and to change the Act if necessary. To that end, amendment No. 42 requires the commission to review the operation of his part of the Act within 18 months of its commencement, and to submit a report in writing to the Minister on the operation of the process together with any findings, conclusions or recommendations that he considers appropriate.

I envisage that this report will include any recommendations that are necessary to further reduce the 21 days time scale. I hope Deputies appreciate the Minister's goodwill in this regard.

Amendments Nos. 15, 16 and 27 deal with a point which was raised by Deputy Gay Mitchell on Committee Stage. The Deputy made the point that section 14(2) does not allow the consultant psychiatrist the discretion to make a renewal order for a period shorter than three months. The amendment now tabled changes the text to read "for a further period not exceeding three months," which achieves the desired effect. Further amendments in the name of the Minister extend that concept to references to renewal orders in section 14. Similarly, I have amended the relevant section dealing with children in section 24 to ensure that the court has the discretion to make renewal orders for periods not exceeding three months, six months or 12 months, as the case may be.

With regard to amendment No. 13, we can debate the length of time the examination should take. There are concerns about that section of the Bill. Although the Minister has moved from 28 days to 21 days, our amendment suggests that the period should be 14 days. There has been strong lobbying from the Schizophrenia Association of Ireland to reduce that to seven days. The organisation represents the mentally ill and those with schizophrenia, and it has closely examined this situation and recommended this reduction. I listened closely to the Minister on Committee Stage, and felt that some space should be granted on this matter. It was thought that an amendment to a 14 day period had a better chance of being accepted than seven days. While the Minister has moved, a further move to 14 days should be accepted.

If the mental health services have a period of 21 days before they can make a review, they will ensure that any examination will hold up for a full 21 days. It is difficult to debate, to discuss and to have an opinion examined by consultant psychiatrists. They have a strong opinion that lay people must respect their views without question. Lay people may play a part in encouraging this attitude as we are often in awe of qualified psychiatrists. Lay people often feel they are being examined as they speak to a psychiatrist. That is not true, but lay people have put them in a high position and psychiatrists have been glad to accept that position. They feel they are not to be questioned and know everything about these matters.

It is very difficult to examine a decision by a consultant psychiatrist such as to discharge a suicidal mentally ill patient from hospital. One can attempt to probe the decision, but all health board officials can say is that it was a clinical decision. They are not in a position to question a clinical decision of a consultant psychiatrist. The consultant psychiatry profession will ensure that as there are 21 days for examination, 21 days will apply. They will use their power to ensure they are not put under further pressure.

A 14 day period will put the system under maximum pressure to ensure that nobody is detained in a psychiatric institution longer than they should be. Even 14 days is too long, according to the experienced Schizophrenia Association of Ireland. It says seven days, while we say 14 days to ensure that admission orders shall authorise the reception, detention and treatment of a patient concerned, and shall remain in force for that period, from the date of making the order. This is subject to subsection (2) which will then expire.

There should be pressure exerted by the Department to ensure maximum performance in this area. I assure the Minister of State that if this Bill is not changed now, a future examination of the system will not facilitate a change.

I have great concerns about the Minister's approach. I welcome that there is some reduction in the time frame but this is very modest. It does not meet the needs. The Minister of State has said there is an obligation on the Minister to ensure there is a realistic approach to the functioning of the process. However, it must also be an effective process and one that meets the requirement to provide a mechanism to protect people incarcerated unnecessarily or wrongly. A 21 day period does not compare favourably with the views expressed by the ICCl and by the Schizophrenia Association of Ireland, who have both argued for a seven day time frame. The Labour Party recognises that seven days is ambitious and has recommended ten days.

The Government has been subject to criticism by the UN Committee on Human Rights about the time frame proposed. The UN committee compared our timeframe with the much shorter timeframe of as low as two days in other countries. I would have thought the White Paper on Mental Health would have been used as a guide in this area. Surely we should be paying attention to the recommendations it contains and, in respect of this matter, it recommended a period of seven days. I welcome the amendment tabled by the Minister of State which deals with the renewal of periods up to six months. That amendment, however, does not deal with how the review process will work. I do not believe a period of 21 days is satisfactory, particularly when one considers that 70% of people are released within one month in any event and that not many people will be incarcerated for 21 days or more.

The Minister of State outlined the numbers involved, but that is a matter of guesswork as much as anything else. On Committee Stage, I made the point that everyone would understand if difficulties arose in terms of the start-up date. Had the Minister for Health and Children decided – I thought he would do so – to provide a window in which the training, preparation and backlog might be dealt with, I am sure people would understand that, for a period, there might be delays in terms of delivering this protection. I had believed that once the lead-in period was completed a procedure would be established which would be effective as well as being realistic. It is for that reason that we put forward a ten day review period.

I have no doubt that when the commission is asked to produce a report in 18 months, it is far more likely to propose that there be a longer rather than a shorter timeframe. That is the nature of the beast. Why would any commission determine that the timeframe should be shorter when the Government has laid out in legislation the length of time which should elapse before the review takes place?

We have made some progress in terms of amending this Bill. However, I notice there is a tendency on Committee Stage for Ministers to give a commitment to consider an issue but when we return to it on Report Stage it is clear that significant changes have not been contemplated. In this instance, I am glad for the individuals involved that there will be a reduction of seven days. However, the approach being taken is extremely minimalist. Had the new framework been in place in the past, it would probably have protected people in a fundamental way and altered some of their lives. That is history, however, and we must ensure that what we are doing will provide good safeguards within a reasonable timeframe. I welcome the reduction in the period, but it is very limited. It is disappointing that the Minister did not show a little more courage.

The reduction from 28 days to 21 days is based not just on respect for civil liberties and the fact that in these type of involuntary admissions the liberty of persons will be taken away, but also on the realisation that we must ensure that the process can run its course and that the review can take place. There is quite a difference between the type of review proposed in the Bill and that to which the White Paper referred. The review mentioned in the White Paper was a seven day paper or procedural review, whereas the Bill provides for a substantive review including a full examination of a patient by an independent consultant. It is to ensure that such reviews will be allowed to take place that a period of 21 days is being proposed. It is the Minister's hope that the period could be shortened and that the process will be extremely efficient. However, we do not want to delay the enactment of the Bill simply because we would not be able to find the staff, technology, etc., in time to allow a review to be carried out in the short periods – ten or 14 days – proposed by the Deputies.

Following the review of the work of the commission after 18 months, I hope recommendations will be forthcoming for a period of less than 21 days to be put in place. Bearing everything in mind, however, the Minister is satisfied that it would not be feasible or practical to carry out such a substantial review in under 21 days.

I am disappointed the Minister of State is not in a position to respond positively to our amendments. On Committee Stage, the Minister for Health and Children was as adamant about a period of 28 days as she is being now about a period of 21 days. Those involved at the coalface have stated that a review should take place after seven days. The Minister of State has indicated that the system is so bad, outdated and underfunded that a person who has been detained against their will and, perhaps, physically admitted to an institution can request a review but that the State will not oblige that institution to review their situation for up to 21 days. I would have thought that their situation should be reviewed on request. I accept, however, that this might be going too far. The associations involved in the area believed that seven days is a reasonable period and we are proposing that this be doubled to 14 days. Surely the institutions can carry out reviews in two rather than three weeks, because this would significantly improve the rights of those who have been involuntarily admitted to mental institutions.

I reiterate that it would be desirable that people would not be held involuntarily if the professional opinion was that this was inappropriate. It is important, therefore, that the professional opinion to which I refer should be obtained. However, the advice is that it would not be possible to guarantee the 2,000 to 2,400 people who are admitted to institutions each year that their cases would be reviewed unless the 21 day period is put in place. I hope that period can be reduced, but I do not wish to delay the enactment of the Bill while waiting for the day to arrive when a review could be carried out in a shorter timeframe. That is why the proposed period is being reduced from 28 to 21 days.

Amendment agreed to.
Amendments Nos. 13 and 14 not moved.

I move amendment No. 15:

In page 15, line 4, to delete "of" where it secondly occurs and substitute "not exceeding".

Amendment agreed to.

I move amendment No. 16:

In page 15, lines 8 and 9, to delete all words from and including "a period" in line 8, down to and including "in" in line 9 and substitute "a period not exceeding 6 months beginning on the expiration of the renewal order made by the psychiatrist under".

Amendment agreed to.
Amendments Nos. 17 and 18 not moved.

I move amendment No. 19:

In page 15, line 35, to delete "and".

This is a technical amendment.

Amendment agreed to.

Amendments Nos. 20, 51 and 52 are related and may be discussed together by agreement.

I move amendment No. 20:

In page 16, lines 39 and 40, after "disorder" to insert "and that the approved centre has staff, resources and facilities adequate for the treatment of that disorder".

I tabled this amendment because I was concerned about the referral of an admission or renewal order to the tribunal. The tribunal is obviously empowered in the review procedure it will conduct to examine certain aspects of an admission or renewal order for a patient suffering from a mental disorder to ensure the procedures are correct and the law has been abided by. I find it curious there is not any reference to ensure the tribunal can consider the centre in which the person has been placed, whether it is the appropriate place for the treatment of the person and whether it is properly resourced to ensure the person – if capable of being treated effectively – can receive the treatment he or she needs.

I presume this issue would not arise in the vast majority of cases, but we must examine the issues which may arise and, which need to be dealt with in legislation if that legislation is to be well worked and constructed. It is possible for a person's case to be considered by a tribunal, for information to be given to the tribunal that the person was correctly admitted according to the law and that he or she has a mental disorder, but for that person to be inappropriately placed in a centre which, while approved, is not capable of meeting the treatment needs of that individual. I presume in that case the tribunal would have to say that it could not examine that aspect of the review because it does not have the power under the legislation to do so and that, while it knows the person in question is inappropriately placed, it cannot examine that aspect of the review.

I would be only too delighted were the Minister of State to say this is provided for in another part of the Bill. It could easily happen that an approved centre with a certain standard of care may not meet the need of an individual suffering from a certain type of disorder for a certain type of care. That is not inconceivable, but it appears that, in law, the tribunal could not examine that as an issue in terms of considering the renewal or admission order. I would have thought that was part of the work of a tribunal. It does not give much confidence or hope if all the procedures, including a procedure to protect an admitted person's rights, can be gone through perfectly correctly where a person is incarcerated against his or her will by being involuntarily admitted and no consideration can be given by the tribunal charged with the duty of ensuring the rights of that person are protected to the fact that he or she is in a place that is not appropriate to his or her needs. I would have thought it would improve the Bill to include this amendment.

I support Deputy McManus. This refers to the previous discussion about the level of resources available for the proper delivery of services to people in mental hospitals, be they voluntary or involuntary admissions. We are aware that approved centres sometimes do not have adequate staff and facilities for the treatment of certain disorders.

A psychiatric institution despite the skills therein to treat the mentally ill is not a suitable place for people with a mental disability. Such people, the intellectually challenged as they are called now, should not be treated in the same way as those suffering from illness because they are not ill. They require a different environment. They require a place where they are safe and where they can have as full a life, as full enjoyment and as best a quality of life as possible. They will not receive that in a psychiatric institution because it is not established to provide that.

This is not confined to people with a mental disability who are involuntarily admitted. Any such person who is in a psychiatric institution voluntarily is in essence there involuntarily in that he or she is not in a position to give full consent and question the type of service he or she receives or the type of environment in which he or she is located. The amendment, although it only deals with involuntary admission to mental institutions, should be accepted. Resources, facilities and staff should be provided to all psychiatric institutions to deal with all aspects of patients' conditions. It goes without saying that those with an intellectual disability should not be in a psychiatric institution. I know there are some proposals and movement to deal with that but such people should not ever have been admitted to begin with.

I have a great deal of sympathy with Deputy McManus's amendments and her concern that approved centres should have the staff, resources and facilities adequate for the treatment of patients. I also appreciate the sentiments behind the amendment which requires regulations to be made to prescribe requirements for accurate clinical diagnosis and to avoid the excessive prescription of medication. However, the most appropriate mechanism to ensure these things happen is to build on the functions of the Mental Health Commission.

The role of the tribunal is to review an individual's case and to decide whether he or she is mentally disordered. This is an onerous task and it would not be appropriate, therefore, for the tribunal to make an assessment of the standards of care in hospitals. This task probably fits better into the role of the commission, which is why the Minister's amendment has been tabled. That amendment will allow the Mental Health Commission to attach conditions to the registration of approved centres.

Included among these conditions are specifications relating to the number of staff required to be employed in a centre and to carrying out essential maintenance and refurbishment of a centre. The commission may also require the introduction or review of policies, protocols or procedures relating to the ordering, prescribing, storing and administration of medicines.

In each case where a condition is attached to the registration of a centre, the practical effect would be that the registered proprietor would have three years to ensure that these improvements were made before the centre would be due for registration again. If a further application were made for registration and the commission were to find that these conditions had not been adhered to, the re-registration of the approved centre concerned could be refused by the commission in accordance with section 63(5)(b)(iv). Vesting this function in the Mental Health Commission will ensure these matters will be monitored, supervised and overseen on a continuing basis. This is a more effective means of ensuring that adequate standards are in place than the avenues proposed by the Opposition amendments.

Regarding what Deputy Neville said, he should accept that the policy of the Department for a number of years has been that people with an intellectual disability should not be admitted to a psychiatric hospital unless they have an underlying psychiatric disorder.

The report of the Inspector of Mental Hospitals said 300 such people were still in psychiatric institutions.

It should not be a reason for detaining a person involuntarily. There are people who exhibit aggressive behaviour, but it is not intended that these people should be detained in psychiatric units.

It is a bit disingenuous of the Minister of State to link directly the work of the commission and the accreditation of centres and the work of the tribunal which, as she said, focuses on individual cases and circumstances. Registration and accreditation are separate issues to the issue I raise. A centre may well be accredited and may not be of poor standard but simply may not be able to provide for an individual in a satisfactory way. The tribunal will be barred from considering that aspect of an individual case because there is no provision in law for it to do so. The tribunal may look at the legal aspects of a case but it cannot decide if a particular institution is the appropriate place to care for the individual concerned. That is a major negative aspect of the work of the tribunal.

There are many examples of inappropriate placements. There are still people with intellectual disabilities in psychiatric centres. Many people who suffer from alcoholism are in psychiatric institutions because there is no other place for them. I am not clear what will happen to these peple when this Bill becomes law. This legislation will create a difficulty for such people who in the past could at least be admitted to a psychiatric institution and be looked after at some level. However, that is a separate issue.

I am talking about a person who may be in a centre which is perfectly well accredited and registered but which cannot deal with the person's disorder. This issue has not been addressed by the Minister of State.

The tribunal is there to decide whether a person is suffering from a mental disorder. It is a quasi-judicial body as set out by our international law obligations and its concerns, therefore, are with the protection of the patient's civil rights. It will determine whether a person has a mental disorder and whether he or she is being detained correctly. It is not established with a view to examining the adequacy of the conditions in which a person is accommodated. That is the role for the commission. This is why we are suggesting strengthening the role of the commission in the reviews of protocols, procedures and so on.

Amendment put and declared lost.

I move amendment No. 21:

In page 17, line 8, to delete "28" and substitute "21".

Amendment agreed to.
Amendment No. 22 not moved.

I move amendment No. 23:

In page 18, between lines 14 and 15, to insert the following:

"(7) In the event of an appeal, the hospital, health board or psychiatrist concerned may be required, at the discretion of the court, to satisfy the court that the patient suffers with a mental disorder.".

When there is an appeal to the Circuit Court the onus is on the patient to prove he or she is not suffering from a mental disorder. The onus is not on the hospital, the health board or the psychiatrist to establish that the patient was involuntarily admitted and has a mental disorder. The purpose of this amendment is to ensure that in the event of an appeal the hospital, health board or psychiatrist concerned may be required, at the discretion of the court, to satisfy the court that the patient suffers from a mental disorder.

One could say a person with a mental disorder is being asked to disprove his or her guilt. Why should the onus be on a patient to prove to a court that he or she does not have a mental disorder? The onus should be on the professionals who have examined the patient and diagnosed a mental disorder to prove that diagnosis. Why should a psychiatrist and health board simply assert that a person has a mental disorder and oblige the patient to prove he or she does not? This amendment would place the onus on the professionals, where it ought to be. We must challenge the professionals in the psychiatric services at every opportunity to ensure they are properly performing their duties with the maximum efficiency and are careful when making decisions about the mental health of people in their care.

There are circumstances in which people must be involuntarily admitted into mental institutions. However, when a patient challenges such an admission in court the health professionals should prove their diagnosis in court. The patient should not be treated like a prisoner in the dock and obliged to prove he or she is not mentally disordered in the face of testimony by a group of professionals with excellent back-up. The Minister may say a person in such circumstances may have the benefit of the services of a consultant psychiatrist on his or her side. If a person is deemed to be ineligible for a medical card must he or she be obliged to employ, not only lawyers but also psychiatrists to prove he or she is not mentally ill?

The onus of proving a person is mentally ill should be shifted from the individual back to the professionals.

Deputy Neville's amendment is concerned with the balance the Circuit Court must apply in hearing an appeal by an individual or patient against a decision of the tribunal. As the Bill is based on the principle that the decision as to mental disorder is a medical one, it is therefore the tribunal which has the function of review and appeal of the decision. An appeal to the Circuit Court is not a full appeal in the ordinary sense but rather a new statutory mechanism to challenge the substance of the decision on mental disorder.

The position under the Bill is that when that decision is appealed to the Circuit Court the validity of the original order stands unless it is shown to the satisfaction of the Circuit Court that the original order was wrong. This, I have been advised by the Office of the Attorney General, is the correct balance in this additional appeal mechanism being provided in the Bill. It gives an individual the means to overturn a wrong decision while, at the same time, giving due weight to the decision of the tribunal. This does not mean the authorities will not have to defend the tribunal decision. The authorities will have to satisfy the court with their answers to the challenges made by the individual concerned. What the present provision means is that after hearing all the evidence the court will uphold the original decision unless it is satisfied that the individual is not suffering from a mental disorder.

The amendment proposed by Deputy Neville would have the effect of having the issue reheard in its entirety. It would allow the courts to commence an investigation of the kind already carried out by the tribunal which is one best made by the medical professionals concerned. This mechanism for appeal is, of course, in addition tohabeas corpus.

I thank the Minister of State for her reply and I accept everything she says. The amendment asks that the outcome of the commission's examination of a case be presented to the court as proof that the person has a mental illness. The onus should not be on a patient who does not feel he or she has a mental illness and wants to challenge the diagnosis to obtain the necessary evidence and to prove that he or she is not mentally ill, while the professionals in the case are simply required to assert that the patient is mentally ill and are not expected to support their diagnosis. The balance should be on the side of the patient who is the vulnerable person in an involuntary admission to a psychiatric institution. The purpose of the Bill is to protect them. The amendment would provide an added protection in court in that the patient would be in a position to query or challenge all aspects of the decision which confined them in a mental institution against their will.

What the Deputy is suggesting would take us back to square one, whereas the tribunal would have done that and would continue to do so on a regular basis, including, as I said, a full examination that would be made by the medical people. That is the appropriate place in which to do it, rather than in a court of law.

Amendment put and declared lost.

We now proceed to amendment No. 24 in the name of the Minister. Amendment No. 25 is an alternative and both may be discussed together.

I move amendment No. 24:

In page 19, to delete lines 30 and 31 and substitute the following:

"(16) No appeal shall lie against an order of the Circuit Court under this section other than an appeal on a point of law to the High Court.".

Deputy McManus's amendment proposes to delete the provision that the decision of the Circuit Court, on an appeal under the section, shall be final and conclusive. Its effect would be that a person could appeal the decision of the Circuit Court to the higher courts. I do not propose to accept it. The principle running through the Bill and the reason the issue of mental disorder is directed to an expert tribunal rather than the courts is that the assessment of mental disorder is a matter for medical expertise. The limitation on the appeal applies to the substantive medical issue only. Any question as to the procedures used by the tribunal in reaching its decision can be raised in judicial review and the Bill does not introduce any limitation to such proceedings. Similarly any question as to the detention of a patient may be raised inhabeus corpus, itself a constitutional remedy. The limitation is confined to the substantive issue which, as indicated above, is a medical decision and already subject to a full review by the tribunal. Given the concerns raised, however, the Minister is proposing to allow an appeal to the High Court on a point of law.

I raised this point on Committee Stage when the Minister undertook to review it. At the time he seemed to be of the view that there was a precedent to simply eliminate this right and have the section state that the decision of the Circuit Court, on an appeal under the section, shall be final and conclusive. I am glad there has been some movement on the matter. It is fair that a point of law can be appealed to a higher court. I am happy to accept the amendment. I was concerned that rights were being infringed but there has been an effort by the Minister to address the point.

Amendment agreed to.
Amendment No. 25 not moved.

I move amendment No. 26:

In page 23, line 17, to delete "28" and substitute "21".

Amendment agreed to.

I move amendment No. 27:

In page 23, to delete lines 31 to 34 and substitute the following:

"(10) On or before the expiration of the period of detention referred to in subsection (9), a further order of detention for a period not exceeding 6 months may be made by the court on the application of the health board and thereafter for periods not exceeding 12 months.".

Amendment agreed to.

I move amendment No. 28:

In page 23, line 40, to delete "subsection (10)" and substitute "subsection (9) or (10), as the case may be".

This is a technical amendment.

Amendment agreed to.

Amendment No. 32 is an alternative to amendment No. 29 and both may be discussed together.

I move amendment No. 29:

In page 25, between lines 10 and 11, to insert the following:

"(2) In deciding whether and when to discharge a patient under this section, the consultant psychiatrist responsible for his or her care and treatment shall have regard to the need to ensure:

(a) that the patient is not inappropriately discharged, and

(b) that the patient is detained pursuant to an admission order or a renewal order only for so long as is reasonably necessary for his or her proper care and treatment.”.

I understand during the debate on Committee Stage concern was expressed about the discharge of patients and, in particular, two distinct but related issues: first, the fear that a patient would be inappropriately discharged without having received adequate care and attention for the mental illness for which he or she was being treated; and, second, the concern that a patient would be detained under an involuntary detention order for longer than was absolutely necessary. The Minister's amendment, modelled on that originally tabled by Deputy McManus on Committee Stage, is designed to ensure consultants will consider these two points before making an order to discharge a patient from involuntary detention.

I am happy to withdraw my amendment in deference to the one in the name of the Minister which deals with my concerns. Obviously, clinicians do not like to be advised how to do their work or about the judgments they make but it is important that there should be some framework and guidance within the Bill to ensure when they are making clinical decisions they do so in the spirit of the protection of rights in the Bill which include not only the right not to have an unnecessarily extended period in an institution but also the right to access care and treatment. There was a danger this issue might not have been fully considered were it not for the fact that I raised it on Committee Stage and the Minister accepted it. I support the Minister's amendment.

I also support the Minister's amendment. If the Bill has the capacity to do so, this provision should also be extended to those in hospital on a voluntary basis. The matter reverts to one of the issues I raised this morning concerning those at high risk of suicide being discharged from mental institutions inappropriately despite the extreme concerns of their families. This is occurring and such people are in danger of dying by suicide. If it is inappropriate to discharge somebody likely to commit murder or seriously injure another person, surely it is also inappropriate to discharge somebody likely to injure or kill himself or herself.

There is a view that, at a certain stage, if a person is determined to die by suicide, there is no more to be done. We should, however, have the same safeguards in place in our institutions to protect the public against violence by somebody who is mentally ill as for somebody who is likely to inflict injury upon himself or herself. There are double standards about this but the situation is very clear; such people should be protected because every life is precious. Nobody ever has the right to take his or her own life and no one has the right to facilitate him or her in so doing, which is another debate.

In welcoming the Minister's amendment, perhaps the Department could examine both areas, those admitted voluntarily and those admitted involuntarily. There is a serious question mark against the cases of many in mental institutions for social rather than medical reasons. I know many suffer from depression because of their life circumstances and that in other situations they would never have a mental illness.

There has been a protracted debate on the issue. To some extent we are moving away from the past and it would be incorrect to say that conditions are like those of 20, 30 or 40 years ago. We must ensure, however, our psychiatric institutions are never again used for dealing with social issues, whether within a family or otherwise, or broader issues arising from social difficulties. Social deviance or problems resulting from social circumstances should not be dealt with by putting people in mental institutions. The Minister of State will say they were admitted voluntarily but they did not know any better. They were told to enter an institution in some cases and were left there for ten, 20, 30 or 40 years.

Amendment agreed to.

I move amendment No. 30:

In page 25, line 12, after "concerned" to insert "and his or her legal representative".

When commenting on the length of time allowed under the legislation for involuntary admission, many people expressed concern that a great number of patients are discharged before the period had elapsed. It is estimated approximately 40% of patients are discharged before the 21 days have elapsed. A provision was inserted in section 27 to address that concern whereby a patient who is discharged is given a notice that he or she is entitled to have his or her detention reviewed by a tribunal even though he or she has been discharged. To initiate this review, he or she must indicate in writing to the commission within 14 days that he or she wishes the review to continue.

The amendment proposed is a further safeguard to ensure patients are aware of their rights to have their cases reviewed. The amendment provides that the notice given to the patient under section 27(2) is also given to his or her legal representative. The expectation is that the legal representative would advise the patient as to the necessity of applying in writing within 14 days if he or she wished his or her detention to be reviewed. This is a positive change to the section and a further safeguard of the patient's right to a review.

Amendment agreed to.

I move amendment No. 31:

In page 25, line 24, after "Commission" to insert "and, where appropriate, the relevant health board and housing authority".

When a decision is made to discharge a patient the consultant psychiatrist will cause a copy of the order to be made and notice to be given to the commission. The amendment proposes that where appropriate the notice would also be sent to the relevant health board and local authority. I appreciate there are issues relating to confidentiality and protection of patients' interests but I am also conscious that the system is fragmented in terms of support for the psychiatrically ill. When they are in an institution, the system works, not always wonderfully, but it has clarity. It is not clear what happens when patients are discharged from that structured framework into a community where nobody is considered to be responsible for them. If they do not have immediate family, they may end up in a vulnerable position, particularly, for example, when there is a grave housing crisis and health boards do not have the resources and staff that are needed.

However, it is important there is some link built in where appropriate, to ensure there is ongoing knowledge of and support for an individual who has been discharged. I will cite one example. An individual who was clearly suffering quite serious psychiatric illness was discharged from an institution. He embarked on some eccentric behaviour in his neighbourhood. When people found they were receiving a great deal of unwanted attention from this individual, who was obviously deluded through no fault of his own, there did not seem to be any way for those affected by the man's behaviour to contact somebody who was aware of his case and was able to take action and deal with the issue in an acceptable way. For a long time, the Garda and housing authorities were being called and nobody was willing to take any responsibility or displayed any great interest in the case.

As Ireland becomes more urbanised and the links between people continue to break it is important that the agencies that have a certain statutory obligation are kept informed about these individuals to ensure where appropriate their support can be made available.

I support the amendment and I refer to mentally ill people who are homeless. There is a problem regarding the discharge of psychiatric patients who are homeless. There is a high prevalence of mental illness among the homeless. Sometimes they are homeless because of their illness andvice versa. There is an inadequate number of hostels available to take off the streets, homeless people who receive treatment in a mental institution and are then discharged. They should not be discharged on to the street. They should be kept in hospital for a minimum period of three to six months and they should receive psychiatric assistance. I appreciate moves have been made in this area in recent times. The Minister recently outlined developments in that area in reply to a parliamentary question I tabled. However, senior psychiatrists have expressed concern about the treatment of the mentally ill who are homeless following discharge from mental institutions, whether it is voluntary discharge or otherwise.

There should be structures in place in every health board area, if not every county, because people want to reside in their own communities. There is a homelessness problem in Dublin, Cork, Limerick, Galway, Waterford and elsewhere and there is a mental health problem among the homeless as a result of drug and alcohol abuse, schizophrenia, depression and so on. Some homeless people are subject to deep depression because of their circumstances. Homelessness and drug and alcohol abuse and so on are interlinked. Special treatment should be provided following discharge from a mental institution whereby patients would receive full support and could return to "normal" living.

The amendment goes a long way towards providing for that. If a homeless person has been discharged and the local authority is contacted and made aware of that, a certain onus is put on the local authority to provide accommodation for the individual. That is a start but we should go further. There should be a programme of post-discharge care for mentally ill patients who were homeless prior to admission to an institution so that they do not return to the same circumstances and end up in a cycle of homelessness and admissions to psychiatric institutions. There should be a great deal of investment to ensure that cycle is broken.

I share the Deputy's concerns about people being discharged into inappropriate circumstances, particularly the homeless, because there is a great deal of evidence that many homeless people were discharged following a long stay in an institution. Deputies will be aware of the mental health programme for homeless people, particularly in the eastern area, with the residential and day facilities and the outreach programme. There is also the Government strategy on homelessness, which is an inter-agency, interdepartmental approach, and because Deputy McManus's amendment fits in very well with that I am happy to accept the amendment. People leaving institutional care is a particular problem.

Amendment agreed to.
Amendment No. 32 not moved.

I move amendment No. 33:

In page 25, line 42, to delete "detained." and substitute the following:

"detained:

Provided that a person suffering from such a disorder shall not be admitted voluntarily to an approved centre, or remain at such centre after he or she has ceased to be liable to be detained under this Act, unless the consultant psychiatrist responsible for the care and treatment of that patient is satisfied that the patient is competent to make a free and informed decision as to his or her voluntary admission to, or remaining in, that centre.".

When I proposed on Committee Stage that there would be an additional amendment and that the wording beyond "detained" would include a protection for people who were involuntarily detained in a centre and who stayed on as voluntary patients when their period of involuntary detention had expired, I felt it was important that the psychiatrist assessing them was satisfied that they were in a position to make that decision, that they were truly voluntary patients. I felt this matter needed to be addressed in the Bill because people who are involuntary patients under the Bill have certain safeguards and protections which the voluntary patient does not have. It was really a question of providing the guidance for the consultant psychiatrist, the check list, to make sure that when he or she was assessing the capability of the patient to make that decision, that it was being properly done because otherwise pressure could be put on a patient who was not in a position to be confident to make that free and informed decision.

I looked at the list of amendments to see if the Government had put forward a similar amendment because when I raised this matter on Committee Stage, the Minister stated:

I am prepared to accept this amendment as I agree with the principle behind it regarding the concerns of perhaps some voluntary patients within the system who are not, in reality, voluntary. However, I would be reluctant to accept the amendment as presented here without having it examined by legal experts. The Deputy will be aware by this stage that the Bill is an extremely complex provision and we must ensure that every section in it means exactly what we want it to mean. We do not want, for example, to leave out any particular category of patient. However, I am amenable to accepting this amendment on principle and we will return to the Deputy with the correct wording on Report Stage.

That is what the Minister said and that is what I took him to mean and unless I am missing something, he has not lived up to his promise.

One cannot add to that.

That is what the Minister meant at the time he said it, and he expressed his sympathy with the principle of the amendment but he also said that he could not accept it without having it examined by the legal experts. Unfortunately, the legal advice now available suggests that the amendment is not appropriate to the Bill and I will explain briefly the reason behind that.

The clear implication behind this amendment is that some patients who are legally classified as voluntary are not in hospital of their own free will, and I am advised that it is unwise to make an amendment based on such a premise. A voluntary patient should be there voluntarily, and that is what the term should mean. If a person is not a voluntary patient, he should be subject to an admission order. I acknowledge that there are concerns in some quarters that some so-called voluntary patients may not be in hospital on a strictly voluntary basis. However, the appropriate mechanism for dealing with that issue will be through the Mental Health Commission, which has, as one of its functions, "the promotion of high standards and good practices in the delivery of mental health services". The annual inspections of the Inspector of Mental Health Services would also play a role in monitoring this issue. On the advice of the legal experts, I do not propose to accept the amendment.

Far be it from me to argue with a lawyer—

—but that reply sounds quite daft. It is saying that the amendment might make some implication that some voluntary patients are being held as involuntary patients. That is not what the amendment is saying. It is saying that when the consultant psychiatrist makes a decision, when there is this transition in the status of the patient from the involuntary to the voluntary, he or she is absolutely certain that that transition is being made and he has satisfied himself that the patient is able to make that informed choice because the patient will lose rights by becoming a voluntary patient. That is a feature about which we are very concerned in the Bill. We are doing various things to make sure that involuntary patients are given their rights. That does not necessarily imply that there are many involuntary patients in institutions who are being denied their rights. Perhaps they are, but it has nothing to do with the creation and delivery of this Bill. In the same way, this amendment is about ensuring that when that transition is made, the consultant psychiatrist satisfies himself or herself about the status of that patient. That does not have implications for anybody else.

This is a very important amendment. I can quote many examples from the past where involuntary patients were committed to mental institutions but their families walked away from them and they became voluntary without their knowing it, and 40 years afterwards they were still patients. I know of these cases and the Minister of State knows of them, and we must protect against that happening in the future. Society has a responsibility to somebody who has been committed voluntarily or involuntarily to a hospital to ensure that they get maximum treatment and that they are discharged at the earliest possible time into the communities. No extraneous issues should affect that. Families who have responsibilities should be forced to face up to those responsibilities and if they do not, the State has an onus to carry out its duties in that area. We should only have people in our mental institutions who are seriously mentally ill and who are not in a position to exist outside of that institution. Hospitals are places where ill people go to be cured, not to be institutionalised. In the past we have seen too many examples of involuntarily patients becoming voluntary and still being patients in the hospital years later. This amendment puts an onus on the institution to fully examine all aspects of the case, discuss it with the patient concerned and ensure that the proper decision is made with regard to remaining in the institution or being discharged.

To respond to Deputy Neville's point first, he talked about people being insti tutionalised for so long but it is wise to examine the numbers and to see how the de-institutionalisation process has developed over the past 15 years. I know Deputy Neville is well aware of that. In 1983, there were 12,802 in-patients but that figure has now decreased to 4,768 because of the progress made in community services, etc., which I accept is the right way to proceed.

On Deputy McManus's amendment, I can see from the legal perspective why it would be dangerous to presume that a voluntary patient is not in hospital voluntarily but she is saying that the consultant psychiatrist would adhere to good practice when admitting voluntary patients. This is why we feel the role would be best reserved for the commission.

I find it hard to accept that this issue needs to be referred to a commission. I would have thought the commission would have enough to do without dealing with what is a simple safeguard inserted in the Bill regarding a consultant psychiatrist, who is the person making important judgments concerning a sick person. The amendment proposes that when such a sick person has completed his or her period as an involuntary patient, and there is a question as to whether he or she will continue as a voluntary patient, the consultant psychiatrist has to be satisfied that the decision is being made by the patient in an informed and free manner.

This does not imply anything about anyone. However, it places a certain obligation on the consultant psychiatrist. I challenge the legal adviser's recommendation to exclude this provision as it suggests that, in effect, the Minister of State is saying a consultant psychiatrist does not have to be satisfied that the patient is competent to make a free and informed decision. I do not think that is what the Minister of State is saying as we all wish the consultant psychiatrist to be satisfied in this regard. However, we know that consultants are not infallible.

An important case is taking place surrounding the practice of a consultant in a general hospital which led to great trauma and the mutilation of women over 20 years which was never addressed until two young nurses decided to blow the whistle and were brave enough to stand up to the power of the consultant concerned.

Let us be clear. We do not have a proper medical practitioners' Act and we are not going to have one for quite some time. The idea that psychiatrists will always make the right decision, without any reference to legislation, is foolish and erroneous. I have the highest regard for the medical profession and I would not denigrate the work of its members. However, the idea that we cannot require a consultant psychiatrist to employ good practice by way of this Bill, because that implies that people are incarcerated against their will, does not add up.

If there was such an inherent implication we should not discuss the Bill at all. If that was the case we should not discuss a review system as that implies that there are involuntary patients who may be incarcerated incorrectly. If that is the logic of this advice then the entire Bill involves such an implication. If that is the case then why do we need a commission, a tribunal or a review period? All of these things are being put in place as safeguards. If they all have implications then, perhaps, we should go back to the beginning and start discussing the legal advice, or even seek further legal advice.

If that is not the case then why is this issue arising in the context of this, relatively harmless, amendment? The amendment is so harmless that the Minister did not need any convincing. I asked him for his opinion. I did not even give him my opinion. We were approaching the end of the debate but he was willing to offer his view that this was a reasonable amendment which did not involve any implications. He just had to examine it as we did not wish to leave out any category of patient.

I find it remarkably inconsistent that this is now an issue in the context of an amendment when the entire Bill could set up implications about the manner in which we dealt with involuntary patients over the years. Perhaps we should discuss that issue.

Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 34:

In page 25, after line 45, to insert the following:

"30.–(1) Where the Inspector of Mental Health Services is satisfied that aprima facie case exists that a mentally impaired person was abused, exploited or neglected, or is at risk of being abused, exploited or neglected, he or she may initiate a Circuit Court application seeking the court's approval to the placement of that person in the care of a relative, health board or voluntary agency as the court may direct as being necessary or desirable for the protection of such person.

(2) The Commission shall, within 6 months of its formation, publish guidelines to assist the Inspector of Mental Health Services in this regard.".

This amendment seeks to give the inspector of mental services the power, where he or she is satisfied that aprima facie case exists that a mentally impaired person was abused, exploited or neglected, or is at risk of being abused, exploited or neglected, to initiate a Circuit Court application seeking the court's approval for the placement of that person in the care of a relative, health board or voluntary agency, as the court may direct as being necessary or desirable for the protection of such a person. The amendment also proposes that the commission shall, within six months of its formation, publish guidelines to assist the Inspector of Mental Health Services in this regard.

The amendment will allow the Inspector of Mental Health Services to apply to the court where a person has been abused, exploited or neglected, or where he or she suspects that the person is at such risk, to place that person beyond exploitation, neglect or abuse and in the care of a person nominated by the court for the protection of the patient.

The amendment also caters for the publishing of guidelines to assist the Inspector of Mental Health Services in this regard. It also seeks to provide that the commission will publish these guidelines within six months of its formation.

The White Paper published in 1995 envisaged that adult care orders would be introduced as part of the new legislation. The intention was that, where a person suffering from a mental disorder had been, or was at risk of becoming the victim of abuse, neglect or exploitation, a court order could be made to place such a person in the care of a relative, health board or voluntary agency. It was felt that adult care orders could be used primarily for persons with an intellectual disability.

The Minister acknowledged during debate on Second Stage, that the provision of adult care orders was not being included in the Bill. He also made the point that the issue was not being overlooked or forgotten, and that it would be given further consideration once the Bill is enacted.

There are a number of reasons it was decided not to provide for adult care orders in the new legislation. First, the primary focus of this Bill is to bring Irish mental health legislation into conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and to establish a mental health commission to ensure high standards in the provision of mental health services.

Second, there is considerable debate among professional psychiatrists, psychiatric nurses and social workers as to how such orders could, and should, work. In Britain, the experience of adult care orders has been mixed. There are fears that where such orders empower health boards to impose compulsory treatment, this results in patients avoiding contact with services and, therefore, becoming homeless. The carer-client relationship between mental health professionals and their clients may be seriously damaged as a result. Even relationships between patients and voluntary organisations may be damaged where a voluntary organisation is named in the court order.

The concept of compulsory treatment associated with adult care orders is repugnant to many. In Britain, concerns have been expressed by social workers and service users about the degree of medical power associated with such orders. There have also been suggestions that service providers may experience pressure to use such orders inappropriately.

The care and protection of vulnerable people is important. However, it is essential that any measures put in place should respect the rights of service users and improve their quality of life. It is not clear at this stage that providing for adult care orders would contribute to this objective.

I would like to see further research on the experience of adult care orders in other jurisdictions and further consultations between officials and representatives of the psychiatric professions and service user bodies before proposals on this issue are brought forward.

Accordingly, I do not propose to accept the amendment.

The Minister is saying there is an issue of concern but that she is not in a position to deal with it at present.

She wants another review group to examine the situation and bring forward proposals to deal with it. Concern has been expressed about abuse or neglect in mental institutions. One person communicated with me about a relative who complained of this and subsequently died by suicide in the institution. I believe there was an investigation afterwards. I am not casting aspersions on the mental health services but there should be a procedure to allow the inspector of mental health services initiate a court application for protection for the person, where he sees aprima facie case that a person was abused, exploited or neglected.

We are not talking about another review body but about learning from other jurisdictions where these exist.

A review body could do that.

This issue is not forgotten or overlooked. It is simply a case that we have much to learn about it and to gain from the experience of other places. The Minister intends to return to it when this Bill has been enacted.

I am disappointed the Minister did not see fit to deal with this issue now. It is important that it is dealt with under this Bill. I am also concerned about matters which have been raised with me in certain parts of the country. I will not be specific because I have no wish to imply that there is a problem in or abuse by any institution. I do not have proof and Members of the House should not use privilege to bandy accusations about.

However, I am concerned that I cannot obtain information on clinical trials in psychiatric institutions prior to 1997, when the Irish Medicines Board was involved in such trials. According to information I received from the Minister, 53 clinical trials were conducted in the past three years in mental institutions. Last December, I asked the Minister the number of clinical trials approved from 1968 to 1997. He informed me that he had asked the Irish Medicines Board to commence an examination of this issue and to let him have the information I requested as early as possible. He said he would forward the information to me. I have not received that information. When one is promised information but does not receive it, one begins to worry and ask questions. I am seeking statistical information on the number of clinical trials in a 20 year period but I have not received it, despite the Minister's promise in this House on 30 January.

I received another letter in relation to this matter from the Minister in January. It related to trials during the years 1998 to 2000, inclusive. I had requested the names of psychiatric institutions in which clinical trials were conducted in the past. I received the information relating to the years 1998 to 2000 but no information for the years prior to that. The Minister informed me that he had written to individual companies seeking more detailed data regarding the current status of the trials and, in particular, the patients recruited and withdrawn and other measures taken by the companies. He said he would forward the documentation to me as soon as he received it. That was in January but I have not yet received that information.

I cannot get information on clinical trials on psychiatric patients even though people tell me it is an issue I should take up, that it should be examined in great detail and that things happened in the 1950s, 1960s, 1970s and 1980s which should be examined. The Minister will ask me to give an example but I cannot do that. However, I have asked a question to which I have not received a reply so one can understand my concern that there is a reason for not giving me even statistical information.

I asked the Minister to deal with the issue of consultation for the completion of clinical trials on patients and the administration of drugs, and what protections had existed over the decades to ensure the trials on psychiatric patients were carried out with full information being communicated to the patient so people knew exactly what was happening and voluntarily responded to it. There is anecdotal evidence to the effect that hospital nurses who were administering the trials got so concerned that they refused to do it but the consultants continued the trials. I have received such information from, in some cases, people who worked in these institutions and, in other cases, from relatives of patients who are concerned about what happened in those institutions.

It would be helpful if we could get full information on what happened through the decades. I am not inferring there was something wrong but I want that information. Given that it has been denied to me for almost six months, I must ask why that is the case.

Amendment put and declared lost.

I move amendment No. 35:

In page 25, after line 45, to insert the following:

"30.–the Minister shall, within 6 months of this Act becoming law, lay before the Oireachtas regulations, similar in effect to rules of court, which shall provide for simple and practicable procedures for dealing with elderly persons who are mentally impaired for the sole purpose of protecting the interests of such persons. Such regulations shall not take effect if a motion is passed by either House of the Oireachtas rescinding the regulations within 90 days of the regulations being published.".

This amendment will provide for simple and practicable procedures for dealing with elderly persons who are mentally impaired. In a court ruling 12 years ago, the then Chief Justice, Mr. Justice Finlay stated that it was desirable that consideration be given to the introduction of rules of court appropriate to simple and practicable procedures for dealing with elderly persons alleged to be of unsound mind, where the person alone requires protection. He was highlighting the fact that the wards of court procedure was not suitable for cases where the personal welfare alone of the person with mental disability required protection.

John Costelloe of Eugene F. Collins and Company, solicitors, and a council member of the Law Society of Ireland stated in an article that he had come across a number of tragic family situations where the absence of a suitable legal procedure had caused enormous stress. He went on to state that wardship legislation in Ireland is more than 125 years old and is in urgent need of reform in certain areas. To meet the concern expressed by the Chief Justice, I propose that the new section would give the Minister power within six months of the enactment of this legislation to lay before the Oireachtas regulations, similar in effect to the rules of court, which would provide for simple and practical procedures for dealing with elderly people who are mentally impaired, for the sole purpose of protecting the interests of such people. Such regulations "shall not take effect if a motion is passed by the Houses of the Oireachtas rescinding the regulations within 90 days of the regulations being published". The Minister must satisfy both Houses of the Oireachtas that the regulations are simple, practicable and achieve the amendment's objectives.

I appreciate the concern expressed by the Minister in regard to respecting the rights of service users. This amendment proposes that the mental health services must be satisfied that aprima facie case exists where a person has been abused, exploited or neglected. The courts would have to be satisfied in that case. The Government White Paper on the Mental Health Bill recommended that where a mentally impaired person is abused or neglected, an authorised health board official could initiate an application seeking court approval for the person's placement in the care of a relative, health board or voluntary agency.

I acknowledge the points made by Deputy Neville on the protection of the interests of the elderly mentally infirm, particularly in regard to people who do not fit the criteria becoming wards of court. However, the wardship legislation and its reform is a matter for the Minister for Justice, Equality and Law Reform. The Mental Health Bill is not an appropriate statute within which to address this issue which is outside its scope.

Amendment put and declared lost.

Amendments Nos. 36, 37, 39, 40 and 41 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 36:

In page 27, line 14, to delete "10" and substitute "13".

The membership of the Mental Health Commission has been a topic of some considerable debate since the Bill's publication. Having considered all of the views expressed on Committee Stage, and in the media by the various interested parties, the Minister has decided to increase the commission's membership from ten to 13. The three proposed additional members would comprise an additional consultant psychiatrist, an additional representative of people who suffer from mental illness – a service user – and a representative of the health board chief executives. These additional representatives will add to the weight of expertise within the commission and will ensure it can do its work efficiently and effectively. I hope Deputies McManus and Neville will appreciate the need to keep the commission's membership to a reasonable size while accommodating the various interests involved to the greatest possible extent.

We are all agreed that it is a very important step forward for patients and service users to have a voice in the formulation of policy and the oversight of mental health services. However, it would be anomalous in these circumstances to retain in the Bill a provision which allows the Minister to remove a commission member who becomes incapable, through ill health, of carrying out his or her duties. If we are to provide that a person suffering from mental illness may become a member of the commission, it does not make sense to retain a provision which would allow the Minister to remove a commission member for the very reason which led to his or her appointment in the first instance. Accordingly, amendment No. 41 proposes the deletion of "through ill health" from section 35.

I welcome this progressive amendment.

I, too, thank the Minister for introducing this amendment. On Committee Stage, we proposed that the commission's membership should be increased to 14 and the Minister has come a considerable distance towards meeting our request.

Amendment agreed to.

I move amendment No. 37:

In page 27, lines 21 and 22, to delete all words from and including "2" in line 21 down to and including "psychiatrist)" in line 22 and substitute "3 shall be representative of registered medical practitioners (of which 2 shall be consultant psychiatrists)".

Amendment agreed to.

I move amendment No. 38:

In page 27, line 24, after "services" to insert "and with experience in the provision of such services through the medium of both official languages".

When this amendment was tabled on Committee Stage, the Minister referred to work being done in another Department. I would welcome an update on this issue.

The amendment proposes that two representatives of registered medical practitioners who will serve on the commission should each have experience of the provision of mental health services through Irish and English. Ba bhreá liom go b'fhéadfadh gach duine labhairt i nGaeilge agus a gcuid oibre a dhéanamh trí mheán na Gaeilge. While it is important that equal recognition be accorded to Irish and English, the proposed amendment would severely restrict the Minister in making appointments. Not only would he be required to find doctors and consultant psychiatrists who could speak Irish, they would also be required to have practised through the medium of Irish. I suspect it would prove particularly difficult to find such people. A more important way of providing recognition in this area is to ensure that State services are made available to people for whom Irish is their first language. Tá a lán dul chun cinn á dhéanamh ar seo. The proposed amendment would prove totally impractical in the circumstances.

Amendment, by leave, withdrawn.

I move amendment No. 39:

In page 27, to delete lines 37 to 40, and substitute the following:

"(g) 3 shall be representative of voluntary bodies promoting the interest of persons suffering from mental illness (at least 2 of whom shall be a person who is suffering from or has suffered from mental illness),”.

Amendment agreed to.

I move amendment No. 40:

In page 27, between lines 40 and 41, to insert the following:

"(h) one shall be representative of the chief executives of the health boards,”.

May I ask a question about this amendment?

Strictly speaking, the Deputy may not but I will allow a brief question.

When the ERHA was established, the legislation provided for a representative body to be created for health board chief executives. I was informed at the time that the Minister did not invoke that power. How can a representative of the health board chief executives be chosen if a mechanism does not exist to do that?

The body has been established and has advertised for its chief executive.

Amendment agreed to.

I move amendment No. 41:

In page 28, line 28, to delete "through ill-health".

Amendment agreed to.

I move amendment No. 42:

In page 31, between lines 29 and 30, to insert the following:

"(4) The Commission shall, not later than 18 months after the commencement ofPart 2, prepare and submit a report in writing to the Minister on the operation of that Part together with any findings, conclusions or recommendations concerning such operation as it considers appropriate.”.

I referred to this amendment earlier during the discussion on the timescale for a person's admission and review. This amendment requires that the Mental Health Commission reports to the Minister within 18 months of the commencement of Part 2 on how the process of involuntary admission and review is working. The commission is required to include in its report any findings, conclusions or recommendations it considers appropriate. As I stated earlier, this amendment will ensure the operation of this part of the Bill is reviewed within a relatively short period of its commencement and that the Minister will be made aware of any adjustments or improvements to the process which may be deemed necessary in the light of the commission's experience.

Amendment agreed to.

Amendments Nos. 43, 44 and 45 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 43.

In page 34, lines 19 and 20, to delete "a consultant psychiatrist sitting with a legal assessor appointed by the Commission" and substitute "3 members".

The Minister has received many representations on the membership of tribunals since the Bill's publication. The Bill, as initiated, provided for a one member tribunal comprising a consultant psychiatrist who would sit with a lawyer. Many people suggested the tribunal should also include a lay representative and the Minister and I concur with that proposal. These amendments provide that a tribunal will comprise three members – a consultant psychiatrist, a practising barrister or solicitor and a lay person. The amendments further provide that the barrister or solicitor would be the tribunal chairperson and that each question would be determined by a majority of the votes of the members.

The third amendment refers to the consultant psychiatrist on the tribunal and is designed to allow the medical health commission to have access to the expertise of retired consultant psychiatrists. It allows the consultant psychiatrist who has retired not more than seven years before his or her appointment to serve on a tribunal.

Amendment agreed to.

I move amendment No. 44:

In page 34, between lines 20 and 21, to insert the following:

"(3) Of the members of a tribunal–

(a) one shall be a consultant psychiatrist,

(b) one shall be a practising barrister or solicitor who has had not less than 7 years' experience as a practising barrister or solicitor ending immediately before such appointment who shall be the Chairperson of the tribunal, and

(c) one shall be a person other than a person referred to in paragraphs (a) or (b) or a registered medical practitioner or a registered nurse.

(4) At a sitting of a tribunal, each member of the tribunal shall have a vote and every question shall be determined by a majority of the votes of the members.".

Amendment agreed to.

I move amendment No. 45:

In page 34, to delete lines 49 and 50, and in page 35, to delete lines 1 to 4, and substitute the following:

"(10) In this section ‘consultant psychiatrist' includes a person who was employed as a consultant psychiatrist by a health board or an approved centre not more than 7 years before his or her appointment under this section.".

Amendment agreed to.

I move amendment No. 46:

In page 37, between lines 7 and 8, to insert the following:

"(8) A legal representative appearing before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a legal representative in a court.".

I understand the Minister signalled his intention to table this amendment during the Committee Stage debate. It arises from representations made to him by the Law Society of Ireland which noted that while privilege was granted in the Bill to witnesses before a tribunal, a similar privilege was not granted to legal representatives. We would all agree it is important that a patient's legal representative would feel free to say whatever he or she felt was necessary to make his or her patient's case before a tribunal. Accordingly, the amendment grants legal representatives appearing before the tribunal the same privileges and immunities they would enjoy if they were appearing in a court case.

Amendment agreed to.

I move amendment No. 47:

In page 39, to delete lines 10 to 15, and substitute the following:

"(a) see every resident (within the meaning of Part 5) whom he or she has been requested to examine by the resident himself or herself or by any other person,

(b) see every patient the propriety of whose detention he or she has reason to doubt,”.

This amendment clarifies the powers of the inspector to see residents of approved centres. The word "patient" in section 51 has a particular meaning and would apply only to involuntary patients. The amendment changes the text to read "resident" within the meaning of Part 5. This will ensure the powers of the inspector which currently apply to all those resident in psychiatric hospitals will continue unchanged.

Amendment agreed to.

I move amendment No. 48:

In page 39, to delete lines 21 and 22, and substitute the following:

"rules made undersections 58 and 68 and the provisions of Part 4 are being complied with, and the inspector shall make a report in writing to the Commission in relation to any of the matters aforesaid as he or she considers appropriate.”.

This is a drafting amendment which clarifies the powers of the inspector to ensure rules made by the commission in relation to the treatment of involuntary patients are adhered to and allows the inspector to make a report to the commission on the matters referred to as he or she considers appropriate.

Will the reports of the inspector and the commission be published? There is a proposal regarding a review of the operation of the Bill, but is there a requirement for the commission or the inspector to produce an annual report? This is an issue in relation to the inspector of mental hospitals. We nag the Department and the Minister each year to produce the report because it is a valuable document. What is the procedure in terms of providing published material on an ongoing basis?

I understand it is intended to publish the reports and lay them before the Houses of the Oireachtas.

Will it be an annual report?

Amendment agreed to.

I move amendment No. 49:

In page 40, lines 27 and 28, to delete "has certified in a form specified by the Commission" and substitute "is satisfied".

I am concerned that the obligation to obtain a patient's consent at all times should not impose an undue burden of paperwork on those who work in the mental health services. Accordingly, the requirement in section 55 that an official form be filled in by the consultant on each occasion is being removed and replaced with an obligation that the consultant satisfy himself or herself that the patient is competent to give consent. This opinion would then be recorded in the patient's notes in the normal way.

Amendment agreed to.

I move amendment No. 50:

In page 40, to delete lines 35 to 38 and substitute the following:

"56.–(1) The consent of a patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent.

(2) This section shall not apply to the treatment specified insection 57, 58 or 59.”.

I understand the Minister tabled an amendment on Committee Stage to improve the wording of section 56, which deals with treatment not requiring consent. While the general thrust of the amendment was agreed, some concerns were expressed about the wording and the Minister undertook to re-examine it for Report Stage.

This amendment dispenses with the term "well-being" and employs a form of words that arises from the Control of Clinical Trials Act, 1987. It provides that the consent of a patient shall always be required for treatment except where, in the opinion of the consultant psychiatrist, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition or to relieve his or her suffering. This is a more satisfactory wording than the term "well-being" employed in the amendment tabled on Committee Stage.

The second term which caused concern on Committee Stage was the concept of a patient being "unwilling" to give consent. Following clarification with the medical experts, it was found that the term "incapable by reason of their mental disorder" encompassed more precisely what was intended. In each case, it would be at the discretion of the consultant psychiatrist to decide on the patient's capability or otherwise. I hope the Deputies find that this amendment more accurately deals with the concerns they raised.

I am delighted it has been improved, but did the legal advice the Minister received point out the implication that there may have been cases where consultants prescribed treatment without the permission of a patient who was capable of giving it? With reference to my earlier amendment, I find it difficult to understand the reason the same legal advice was not provided in this case.

I understand the legal advice was based on safeguarding the legal rights of involuntary patients. Regarding the previous amendment to which the Deputy referred, the strong view of the Attorney General's office was that it could not be accepted. However, I sympathise with the Deputy.

Amendment agreed to.

I move amendment No. 51:

In page 44, between lines 20 and 21, to insert the following:

"(b) Without prejudice to the generality of paragraph (a), conditions attached to the registration of a centre may—

(i) require the carrying out of essential maintenance or refurbishment of a centre or of specified areas within a centre,

(ii) require the closure, temporarily or permanently, of a specified area or areas within a centre,

(iii) specify the maximum number of residents which may be accommodated in a centre, or in a specified area or areas within a centre,

(iv) specify the minimum number of staff required to be employed in a centre,

(v) require the introduction or review, as the case may be, of specified policies, protocols and procedures relating to the care and welfare of patients and residents,

(vi) require the introduction or review, as the case may be, of specified policies, protocols and procedures relating to the ordering, prescribing, storing and administration of medicines,

(vii) specify measures to be taken to ensure that patients and residents are informed of their rights under this Act.".

Amendment agreed to.

I move amendment No. 52:

In page 47, between lines 12 and 13, to insert the following:

"(g) prescribe requirements as to the need for clinical diagnosis prior to administration of medicines and measures to be taken to avoid the over-prescription of medicines, or their prescription for improper purposes,”.

Amendment put and declared lost.

Amendment No. 54 is cognisant to amendment No. 53 and both may be discussed together. Is that agreed? Agreed.

I move amendment No. 53:

In page 47, line 15, to delete "patient" where it firstly occurs and substitute "resident".

These are both technical amendments.

Amendment agreed to.

I move amendment No. 54:

In page 47, line 15, to delete "patient" where it secondly occurs and substitute "resident".

Amendment agreed to.

Recommittal is necessary is respect of amendment No. 55 as it does not arise out of Committee Stage proceedings.

I thought it was necessary to agree recommittal at the beginning of a Bill.

No, that only relates to putting the whole Bill back into Committee. An amendment can be put back into Committee during the debate.

There was a procedure in relation to the Health (Miscellaneous Provisions) Bill involving one amendment from the Minister. It was referred to at the beginning of the debate on the Bill.

The Standing Order is that a single amendment can be recommitted at any time up to the disposal of the amendment.

I have no problem with it.

I requested that be done in relation to an amendment to the Health (Miscellaneous Provisions) Bill, but was refused.

Perhaps only the Government can do it.

It is a matter for the House. In this instance, the amendment did not arise out of Committee Stage proceedings. It is necessary to recommit it in order that it can be debated.

Is a similar procedure acceptable from the Opposition?

Obviously, the Deputy can propose such a move, but the decision is a matter for the House and it could end in a division. However, a Deputy can propose it at the time.

The amendment I wished to discuss was not contentious.

Is it agreed to recommit amendment No. 55? Agreed.

Bill recommitted in respect of amendment No. 55.

I move amendment No. 55:

In page 48, after line 43, to insert the following:

"(2) Nothing in this section shall be construed as preventing a consultant psychiatrist from being the clinical director of more than one approved centre.".

The Opposition Members are more agreeable. Modern mental health services are organised on a catchment area basis incorporating a range of different facilities, from an acute admission unit to a network of day hospitals, day centres and hostels. Each catchment area is headed by a clinical director. The purpose of this amendment is to clarify that the existing arrangements will continue, whereby one clinical director is responsible for the full range of services in each area.

Amendment agreed to.
Bill reported with amendment.

Amendment No. 57 is an alternative to amendment No. 56 and amendments Nos. 56 and 57 may be taken together by agreement.

I move amendment No. 56:

In page 49, lines 51 and 52, to delete all words from and including "granted" in line 51 down to and including "for" in line 52 and in page 50, to delete lines 1 and 2 and substitute the following:

"refused unless the High Court is satisfied:

(a) that the proceedings are frivolous or vexatious, or

(b) that there are no reasonable grounds for contending that the person

against whom the proceedings are brought acted in bad faith or without reasonable care.".

On Committee Stage the Minister indicated he was sympathetic to this amendment, originally put forward by Deputy McManus. As the Deputy pointed out then, the amendment shifts the onus on to the High Court so that it cannot refuse leave for a person to take a civil case unless it is convinced that the proceedings are frivolous or vexatious and that there are no reasonable grounds for contending that the person concerned acted in bad faith. I agree with the Deputy that this is a fairer wording than that proposed in the Bill as initiated and I thank her for bringing the matter to the Minister's attention. In the circumstances I hope the Opposition amendment will be withdrawn.

I am happy to withdraw our amendment and I am pleased the Minister has accepted the principle and has effectively modelled the Government amendment on our one. It is an improvement to the Bill.

Amendment agreed to.
Amendment No. 57 not moved.

I move amendment No. 58:

In page 50, after line 29, to insert the following:

"74.–The Minister shall, not later than 5 years after the establishment day, carry out a review of the operation of this Act and shall make a report to each House of the Oireachtas of his or her findings and conclusions resulting from the review.".

The implementation of the provisions of this legislation will hold considerable logistical challenges for the new Mental Health Commission. It is appropriate for the House to revisit the entire scope of this Act in a matter of years to review how it is operating and to make any changes necessary. This amendment, therefore, provides that the Minister shall, not later than five years after the establishment of the Mental Health Commission, carry out a review of the operation of the Act as a whole and report back to the Oireachtas on his or her findings and conclusions. I envisage that contentious issues, such as the time scale required for initial involuntary detention and the appropriateness of the work of the tribunals, could be revisited on that occasion.

I am concerned that there is to be a five year gap before the operation of the Act will be reviewed. However, while five years appears to be a lengthy time period I welcome the provision allowing for a review and thank the Minister for introducing it. It is a pity previous mental health legislation did not contain similar provisions.

It is proposed to implement this legislation on a phased basis. The Mental Health Commission will submit a report after 18 months when some of the issues raised here can be reviewed.

Will that cover all aspects?

All aspects will be reviewed in five years.

In too much legislation ministerial orders are never implemented. All sections of this legislation will only come into effect following ministerial order. I inquired how many sections of Acts were not brought into law by ministerial order but it was not possible to submit a reply because of the number of sections not brought into force despite the wish of the Oireachtas to do so. This amendment will have two effects. First, there will be a review of all aspects of the legislation within five years. Second, it will ensure that sections will be implemented by ministerial order, otherwise the Minister will have to explain why not.

Amendment agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank Deputy Neville and Deputy McManus for their contribution to the debate and for their work on Committee Stage. We all recognise this is major legislation. It replaces the Mental Treatment Act, 1945, and brings our law into line with our international obligations. The co-operation and interest of the House has been very evident in this. I also thank the officials from my Department for their enormous work on the Bill.

I welcome the passage of the Bill through the House and I add my thanks to the officials involved, including those who drafted it, those who worked on improving it and those who researched the areas involved. The Bill deals with involuntary admission to psychiatric institutions, which is a very big step to be taken against anybody. It is a serious step to involuntarily confine somebody who has committed a crime. These people are ill but they are a danger to themselves or to society. There is no choice on what has to be done.

Mental illness is a very sad, upsetting and traumatic event in a person's life and in a family. I ask the Minister to introduce a mental health Bill dealing with all aspects of the voluntary sector. That would have an impact on the involuntary sector. This area has not been dealt with.

I make no excuses for repeating myself on this issue. The area of mental health and illness has not been addressed because there is no demand. A taboo and stigma still surrounds mental illness. As a result our constituents do not lobby us to do something about it. When there is mental illness in a family people often stay quiet. They do not demand services because of the stigma attaching to the illness and the reluctance to deal with it. I hope that is ending and every encouragement should be made to ensure this. The State has a duty to identify the issues involved. While we may not be under pressure to act, we are under a deep obligation as legislators to examine this area and introduce legislation to cover the legal, servicing and funding aspects.

I thank the Minister of State for her attention. It is difficult to take a Bill such as this when it not in her specific area of responsibility. She did an excellent job. I also thank the civil servants who have been involved in the Bill. It has been a slow process and I became impatient about its enactment. It is welcome that we have reached this point. It is a better Bill for the time and effort that was put into considering it.

People who are psychiatrically ill have waited a long time for this legislation. The issue has often been hidden and ignored in the political decision-making process. This legislation is, therefore, a step forward. I also thank the legal advisers, although I do not necessarily agree with them.

Question put and agreed to.

The Bill will now be referred to the Seanad.

Sitting suspended at 6.30 p.m. and resumed at 7 p.m.