Emergency Measures in the Public Interest (Covid-19) Act 2020 - Part 5: Motion

I move:

That Dail Éireann resolves that the amendments to and other modifications of the Mental Health Act 2001 (No. 25 of 2001) effected by Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020) shall continue in operation for the period beginning on the 9th day of November, 2020 and ending on the 9th day of June, 2021.

I am introducing a resolution to extend the sunset clause of Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, which is due to expire on 9 November. The measures in Part 5 of this Act amend the Mental Health Acts, 2001 to 2018, specifically in respect of the role of independent consultant psychiatrists and the holding of mental health tribunals. Mental health tribunals comprise a solicitor or barrister, who acts as chairperson, a consultant psychiatrist and a layperson. Tribunals review the detention of every person involuntarily admitted and detained under the Mental Health Act 2001 within 21 days of admission and thereafter every three or six months. The tribunal either affirms the order detaining the patient or refuses it, following which the patient is released.

The Mental Health Commission, the independent regulator of mental health services in the State, approached the Department of Health in March of this year to raise its concerns over the need to ensure that these tribunals continue and that each patient's right to a review of his or her case is protected. In addition, there was a need to protect the health of both patients and healthcare staff and to ensure the potential for Covid-19 contamination was minimised. Following detailed discussion with the Mental Health Commission and the HSE, the Department, in consultation with the Office of the Attorney General, introduced the measures to ensure that these tribunals could continue.

These measures provide for a cascading approach to the role of independent consultant psychiatrists and mental health tribunals. This approach means that, where possible, the current system of review is conducted as normal. In cases where this is not possible due to Covid-19, alternative measures are in place to protect the rights of the patient. The measures allow a consultant psychiatrist conducting an independent examination of an involuntarily detained patient to do so remotely in scenarios where a personal examination cannot take place. The measures also provide for mental health tribunals, the bodies which review the detention of every involuntary patient, to consist of the chairperson only if members cannot attend due to the spread of Covid-19.

The Mental Health Commission has been monitoring the implementation of the new measures. While the current situation is not ideal, it has ensured that the rights of patients are upheld and that every patient has received his or her hearing. As of this week no one-person tribunals have been required and the full complement of a legal professional, a consultant psychiatrist and a layperson has reviewed all involuntary detentions, either remotely or in person. This, however, does not lessen the requirement to have these contingency measures in place since they may yet be required to protect the health of both patients and front-line healthcare staff. Furthermore, other supports have been provided to patients to ensure their voices are heard during this period, including the additional involvement of interpreters and the use of videoconferencing for interactions with legal representatives and independent consultant psychiatrists.

When this legislation was introduced more than six months ago, no one could have predicted the terrible toll Covid-19 would take on our country. As of last night, Ireland has recorded 53,422 cases and, sadly, 1,868 deaths. The current epidemiological situation is alarming and this week, the Government has had to make the difficult decision to move the entire country to level 5 restrictions in the interest of public health. Covid-19 remains a significant and serious threat to the health and welfare of all people. Outbreaks of Covid-19 continue to occur in the community and in our hospitals, including in approved centres. The measures temporarily amending the Mental Health Act 2001 must continue beyond 9 November as part of our efforts to protect our most vulnerable and our healthcare workers. The proposal to extend the measures is supported by both the HSE and the Mental Health Commission. I ask all Deputies to support the continuation of these measures in a timely manner.

I move amendment No. 1:

To delete the words ‘9th day of June, 2021’ and to substitute the words ‘9th day of February, 2021’ therefor.

We supported the original sunset clause for Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020. I am not against extending the sunset clause in this case in light of the rise of Covid-19. My concern, which the amendment attempts to address, is that the Department recommends the extension of the sunset clause beyond 9 November. Sunset clauses are exactly that; they are time-bound measures to prevent any unintended consequences of extending legislation indefinitely.

A new date must be agreed. Our amendment recommends extending the sunset clause to 9 June 2021. We can come back to the Oireachtas and debate that further. If it needs to be extended again, so be it. As parliamentarians, we have to come here to have a proper debate on the reasons for this legislation. I know that Covid-19 has changed the agenda throughout the country, but we cannot allow legislation to be changed indefinitely. Another date must be named. We cannot support the indefinite extension of the legislation. I hope the Minister of State takes this on board.

I will raise a couple of other points while I have the opportunity. We are in extremely difficult times and the landscape has changed due to Covid-19. People have faced increased fear, anxiety and pressure on their mental health. During the mental health debate last week, I raised the implementation of support bubbles for those in danger of isolation. Isolation affects people living alone such as older people, single parents and parents of children with disabilities. I am pleased that the recommendation has been taken on board. This was a sensible decision. However, another decision was made that will have a direct impact on people's mental and physical health. When restrictions were introduced in April, people's mental health was one of the first things to be impacted. We heard from numerous experts and mental health service providers about how people's well-being was adversely affected. Gyms were closed, but people were able to exercise outdoors in the fine weather.

The fine weather is gone and the dark nights are back. When restrictions were eased, gyms could open so long as they put in place stringent public health measures. Gym owners have put regimented structures in place not only to make their businesses safe, but to implement contact tracing measures also. Gym users have been compliant with those measures. As the Minister of State is aware, physical health and mental health go hand in hand. I have been contacted by several constituents who are very concerned about their mental health coming into the dark nights. Routine and exercise are extremely important at the moment.

Unfortunately, Sinn Féin has not been included in the discussions and decision-making on the restrictions and has not received any briefings from NPHET or the Chief Medical Officer. Transparency is very important in the context of people's understanding of the restrictions and compliance with them. The Government needs to have transparency in order to bring people with it. People deserve the truth. I have asked the Minister for Health, Deputy Donnelly, to outline the rationale and evidence for closing gyms based on his discussions with NPHET and the Chief Medical Officer. I put the same question to the Minister of State. I know she cannot answer now but I would appreciate a response at a later stage. What discussions, if any, did the Minister have with mental health experts in respect of the decision to close gyms? Was consideration given to allowing gyms to open either outdoors or indoors under more restrictive measures?

As I stated, the Government made a sensible decision regarding the support bubble. As much as I would like to think did so because I raised the issue directly in the House, it did not make the decision on that basis alone. Rather, the decision was made because the Government went back, did its research and due diligence and made a sensible decision based on the evidence provided. All I am asking for on behalf of gym users is that the Minister start the process and use the same due diligence process to examine why gyms have been closed and not permitted to reopen.

The motion proposes an extension to the sunset clause. A sunset clause is exactly what it sounds like. It is time bound and there for a reason. If it is necessary to extend it again, the House should come back in and debate that. Unless the motion contains a sunset clause and a date relating to it, Sinn Féin cannot support it going forward.

The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 is a vital part of the national effort to challenge and overcome coronavirus. The Labour Party supported the Act originally because it supports the objectives the Act is trying to achieve. In March, we tabled amendments to ensure that the House would be able to review sunset clauses, as is being done today. We need another date to be set to ensure that any concerns will be addressed. In fairness, I think the Minister of State knows that this is necessary and, as far as I understand it, the Government will deal with it. Although the Labour Party supports extending Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 until 2021, we would have concerns if it were to be extended without detailed scrutiny.

I refer to an important issue that has not been examined in any great detail. In normal course, an independent consultant psychiatrist examines a patient in person, interviews the responsible consultant psychiatrist and prepares a report for submission to a mental health tribunal. Such tribunals normally comprise a chairperson who is a solicitor or barrister, a consultant psychiatrist and a lay person. These tribunals review admission or renewal orders for involuntary patients and either affirm or refuse the order. The amendments contained in the Act provide that a consultant psychiatrist conducting an examination of an involuntarily detained patient may do so remotely. They also provide for mental health tribunals to consist of just the chairperson if other members cannot attend due to the spread of Covid-19. This causes challenges and worries. It raises concerns regarding due process with people who are related to affected persons. These are real and justifiable concerns.

The information note sent by the Department to all Deputies states that no one-person mental health tribunals have been used to date but it does not state whether consultant psychiatrists have been conducting examinations remotely or, if they have been so doing, what impact this may be having on their professional assessments. I ask the Minister of State to outline whether consultant psychiatrists have been conducting examinations remotely. I presume background analysis of the impact the amendments are having has been carried out. We need qualitative analysis on that issue and to find out how the process is being conducted. It is my view that the Joint Committee on Health may wish to examine in detail the changes to the operation of these tribunals. It should consider which amendments have been used in practice and, if not of them have been used, whether there is a rationale for renewing them. We need more detail.

Ultimately, it is necessary for a sunset clause to be put back in. I understand and presume that the Government will do so. If it does not, there will be an issue. More detail on the process and how it is working to date is needed in order to assuage any concerns held by Members, as public representatives, as well as the families on whose loved ones the Act could potentially have an impact.

The Social Democrats supported the Act passed earlier in the year. In theory, we are happy to do so again, but it is very difficult to come to a definitive position on it given the lack of information. The proposals in the Act are very wide-ranging and have the potential to cause difficulties. It would have been helpful for some kind of assessment of the impact of the measures to date to have been carried out in order to ascertain whether there have been any issues raised or difficulties. It would have been reasonable to carry out some kind of review before coming back to the House seeking a further extension. I have not heard of any issues arising, but it would have been good to hear from the Mental Health Commission, for example, as to whether that is the case. To a large extent, the House is being asked to agree to the motion blind, without any information or advice regarding the impact of the Act to date. That is not a good way of doing business.

As previous speakers noted, when extending a sunset clause, there must have a date for that sunset. It is very difficult to understand why the Government has not set a new date before the House. I hope that it will, by the end of today, set a date for when the application of these measures will cease. That is a proper safeguard which should have been included by now.

All Deputies are very aware of the fact that there has been an explosion in problems associated with mental health. There were many pressing needs pre-Covid and an under-delivery of services. Members are aware that in recent years there has been an under-resourcing of mental health services to the point that at the start of the year there were very extensive waiting lists, particularly for young people. There were significant waiting lists for child and adolescent mental health services, CAMHS, psychology services and so on, and an under-provision of those services. In the seven or eight months since then, all the indications are that the demand for services has multiplied. For that reason, it is important that the view of mental health experts is taken into consideration in any decisions relating to restrictions arising from Covid. I am not aware whether any of the key decision makers in all of this, and certainly the nine or ten people who were involved in the deliberations last Saturday and came to the conclusion to move to level 5, have any expertise in psychology, behavioural science or anything of that nature. It is a real gap in the decision-making in the context of the House being asked to extend restrictions and the powers of the State to enforce those restrictions.

However, very little thought is being given to human nature, human needs and psychology. That is the other side of this. It is not always possible to take a law enforcement approach to these issues. We need to consider what people's needs are. People need to see that the restrictions, while severe, are reasonable at the same time. Many questions are being asked about those restrictions. Earlier in the week we were discussing social contact. People living alone should have been accommodated from the beginning and allowed some measure of social contact. It is unreasonable not to allow that.

Some of the measures introduced need to be explained. For example, many older people like to go out and play golf. It is a very healthy activity and is good for physical and mental health. It is very hard to understand why there is a ban on that now. We need to give consideration to human nature and human needs and allow for social contact. That is a real gap in the entire decision-making process.

I am opposed to the extension of the sunset clause for this and for the other matter we are debating today. Fundamentally, the Government is attempting to compensate for its mess-ups, blunders and lack of a clear strategy in dealing with Covid by doubling down on repressive measures. That relates more to the second element of what we are discussing today, but the two elements are related.

We have always been very consistent in being in favour of people following the public health guidelines. In fact, we have advocated a zero-Covid approach. There is strong evidence to suggest, first, that the kinds of repressive powers that are being extended today do not work, do not assist in encouraging people to follow those guidelines and can have a counterproductive effect, and, second, that they pose significant threats to our civil liberties. It is striking that on this element, there is no sunset at this stage, but on the other element to be discussed later there is a sunset of, I think, June 2021.

People will rightly contrast that with the sunset on the ban on evictions, which will end whenever level 5 ends, presumably in December. However, these repressive powers being given to the State will continue for another six months. The plan basically is for these measures to continue over the course of the entire pandemic, whereas the supports to enable people to do what they need to do are wound down as soon as we are out of the very highest level of restrictions. For me that encapsulates the problem with the Government's approach. The way to get people to follow the public health restrictions is to support them and have public education campaigns as opposed to repression, but unfortunately the Government is increasingly going down that route.

An iCARE study by Dr. Hannah Durand found that fines and other coercive methods are the least likely method to improve compliance. Dr. Durand stated:

If the Government takes a hard-line, paternalistic approach, such measures will make it less likely to encourage people to adhere to the guidelines. It might cause people to disengage and have the opposite effect.

We have concrete data now that threatening people with the likes of arrest is not going to work. The data is really clear that that is not the way to go.

That matches up with a range of other research, with another study finding that a sense of social duty overwhelmingly motivated people to comply with public health measures as opposed to being motivated by self-interest. Another study argued that repressive policing in the context of Covid-19 actually increases social disorder due to the increased mistrust between the population and the police. That concern was even echoed by the Garda Commissioner, Drew Harris, who pointed out that the UK has seen no benefit from its repressive regime.

It is vital that there be no carving-out of the essential right to protest. The Government could end up in court if there was an attempt to use the guidelines to restrict people from protesting or to fine them for protesting. That possibility is contained in the law. I make the argument that people have the right to freedom of assembly under the Constitution. It is extremely concerning that people are rightly able to make essential trips to do their shopping etc., including going beyond 5 km from home, but that, certainly according to the legislation, they do not have the right to do that for protesting. The law potentially allows the detention of everyone attending a protest at which anyone had Covid or was even suspected of having Covid. People can be fined up to €2,500 or imprisoned for six months without any right to trial as a result of organising a protest or failing to comply with the direction of a garda. These are extremely serious powers that are being given to the State. There is no evidence that they are necessary or that they work. There is plenty of evidence, as seen in the case of the Debenhams workers, that these can be abused.

I apologise for missing some of the debate. I was at a meeting of the Business Committee. I was in favour of a sunset clause and I am glad we had one because it gives us a chance to debate the issue, albeit with severely limited time. At the Business Committee I objected strenuously to this debate being rushed today. Since its introduction in March, the Government has known that 9 November is the date. I am sick and tired of this Government. There is no pre-legislative scrutiny on most issues, and it is all because of a rush related to a deadline. There should not be a panic. We have known since we introduced these extraordinary powers in March that there was a sunset clause. It must be remembered that the Government did not even want a sunset clause. We are in a very dangerous place here and I am very concerned about it. I will be opposing this extension for that reason.

On more than one occasion, Dr. David Nabarro and other representatives of the World Health Organization have said that lockdowns have not worked and that they impact regressively and harshly on poorer people - ordinary citizens. Some big businesses have mushroomed and expanded here during the lockdown, but the ordinary people are made to suffer. There is loneliness and a sense of fear and fright.

The changes had not been announced 25 minutes the other day when Deputy Cahill announced on my local radio station that the ten-person limit on attending a funeral had gone to 25 because he phoned the Taoiseach. I welcome that because it is awful that our churches and places of worship are locked up completely. Along with North Korea and Saudi Arabia, Ireland is the only place where people cannot attend church services of any denomination. People have grown tired and I am concerned about the supports for them during this lockdown.

I support the community effort that An Garda Síochána has made. In Tipperary, Sergeant Ray Moloney and Superintendent Denis Whelan and the team there have started today making visits and supporting the community, which is what the community and the Garda need. No police force in the world can operate effectively without the support of the people. It needs that badly and it has that support thankfully and is doing great work. Regarding these powers, the Garda Commissioner - I almost said chief constable because of where he is from - has said that what has happened in England has not been good. Why are we blindly following with €2,500 fines and six months' imprisonment? We already know the prisons are full, although some prisoners were released at the outbreak of Covid to make space.

Where are the unalienable rights under the Constitution? Where is our right to assemble? These are all in our Constitution, which we are treading over here very dangerously.

I am not in favour of extending these measures. We were told we are all in this together but we find we are not. Other speakers have raised the moratorium on mortgages. We let that slip. The banks waltzed into the Government and came out with only a slap on the wrist. The moratorium is gone and it will be done on a case-by-case basis. There have been 300 or 400 evictions. Businessmen have been brought through the courts throughout lockdown. We have made a pathway for the banks and the vulture funds to carry out their murky, dirty, filthy business, while they terrorise ordinary citizens, including home owners and business owners. The houses of many small businesspeople are collateral for their vans or machinery. Many musicians are in fear of losing their houses because they receive only pressure, arrogance and contempt from the lending institutions, yet we give it only a nod and a wink. We saw what happened in the Galway races tent years ago, we saw what happened at the Galway golf gate. I mean no disrespect to the Leas-Cheann Comhairle. These events only so happened to take place in Galway, but it is just sickening. We are making way for the vulture funds and the banks. We see what goes on in the courts and the charade there.

People are growing tired of this. They made a Herculean effort to fight the virus, and we must do that, but not by regressing and using these over-demanding powers. The Minister for Justice is not present but I want clarity on whether the gardaí will have the power to enter homes. I understand that they cannot, if they are not wanted, without a search warrant. This is very serious and the Rural Independent Group will oppose it 100%.

I will return to the Minister of State. I understand that Deputies wish to speak but they are not in the Chamber. If anyone is outside the door, they should please come in. It is the final opportunity to speak before I move to the Minster of State and close this debate.

I thank the Deputies who attended for their valuable contributions. We are facing into a very difficult period with introduction of level 5 restrictions as of today, and the worsening epidemiological figures cross the country. In the past week alone, more than 8,000 cases have been confirmed and the national incidence rate sits at 262 per 100,000.

The Government has implemented a suite of measures to address the deteriorating situation, including the introduction of level 5 restrictions nationwide, and the continuation of the measures in this Act and the Health Act 2020. These measures are aimed at limiting the spread and damage of Covid, and at the Government’s key priorities of supporting and maintaining health and social care services, keeping education and childcare services open and protecting the most vulnerable members of our communities.

I thank Deputies Kelly, Shortall and Ward for their constructive contributions. I apologise to them. I understood the date was set out in the draft resolution but they do not seem to be aware of that. I will look into this and update them. The Government has chosen to align the new date for the sunset clause of 9 June 2021 with its medium-term strategy, Covid Resilience and Recovery 2020-2021: Plan for Living with Covid-19. This date allows our mental health services to plan appropriately for the medium term. I confirmed yesterday that the temporary measures may be ended earlier by ministerial order should the public health situation improve to such a point that the measures are no longer needed. These emergency measures will be subject to ongoing review, and will be repealed if circumstances allow.

Deputy Kelly asked about psychiatrists. Independent consultant psychiatrists have been examining patients remotely. The Mental Health Commission examines all patient records and all reviews of involuntary detentions. The commission has monitored the implementation of the new measures. While the current situation is not ideal, it has ensured that the rights of patients have been upheld and that every patient has received his or her hearing. The commission has not flagged any issues to the Department. It is keeping records of all tribunals and all records relating to patients, examinations and detentions. As of this week, no one-person tribunals have been required, as Deputy Kelly said. I reiterate that tribunals have been conducted by independent consultant psychiatrists. I hope that allays fears and that he might support the motion.

On mental health more widely, the outbreak of Covid-19 has been a source of significant stress, anxiety, worry and fear for many people. This arises from the disease itself, as well as from impacts such as increased social isolation, disruption to daily life and uncertainty about employment and financial security. The Government recognises this and has put in place funding for a revised mental health promotion and well-being campaign, funding for online supports and the recently launched national crisis text line, 50808. These measures complement, rather than replace, face-to-face services.

The Government has further increased funding to HSE mental health services by an additional €50 million for 2021, bringing the total to €1.076 billion. This funding will help to implement our new mental health policy, Sharing the Vision, which sets out the roadmap for mental healthcare at all levels over the next ten years. This week, a leaflet went into all 4,000 secondary schools that signposts supports for that age group from 12 organisations. The leaflet is also available online for third level students who are not on campus. We are also examining a new advertising campaign especially for older, more vulnerable people who might not have access to the Internet or a smartphone to hammer home the number they can contact if they want to make a call. That will be rolled out on local radio stations in particular that have significant listenerships in the morning. We are also looking at counselling options. The organisation MyMind has capacity to provide counselling up to December. It provides counselling in 15 different languages, which is very important. We are doing a lot to ensure that supports are there. I hope that Members will be able to support this now that I have given more clarity.

A Leas-Cheann Comhairle-----

One moment. Different speakers missed their slots. We still have a little time so with Members' permission, I will ask Deputy McNamara to come in, but there will be no reply from the Minister of State. Is that agreed?

I had a question for the Minister of State but I will accept a response in writing.

If the Deputy will let me, I will put the question to the House because we are out of sync and I must get permission. Is that agreed? Agreed.

I thank the Minister of State for agreeing to give me time. I was at meeting of the Business Committee.

I accept these difficult decisions have to be made and I commend all Deputies on making them. However, we make them without the necessary information. We cannot change the information that we have now but we can make sure that we are not in this position again.

During the lockdown the national self-harm registry stopped collecting and collating data. Staff started collecting the data again fully at the end of August, having started before that, and is now collecting the information both now and retrospectively. The registry stopped because its staff were not determined to be essential workers. I want to ensure that does not happen again. When we talk about mental health and rolling over emergency legislation, we need to make those decisions with as much information as possible. Above all, we need information on presentations of self-harm in hospitals. I do not know whether they were up or down, and I think that no one knows this information. People in emergency departments know about their own place of work anecdotally but that will vary across the country. The Central Statistics Office, CSO, collects data on suicides. Its staff were not classified as essential workers. More fundamentally, the CSO gives out its first information on suicides in 2020 in the first half of next year.

I accept that it is difficult to collect this information but we did give extra powers to coroners, or there were at least provisions regarding coroners, in the emergency legislation in March.

I am urging the Minister of State to make sure that we have as much information as possible on the incidence of suicide and self-harm. If we do not have that information, how can we, as decision makers, possibly take account of it in our decision-making? It may be the case that the Department has data which nobody else has. If it does, I ask the Minister of State to confirm that. I am not trying to put her in a difficult position and I greatly appreciate her allowing me time to speak. However, if there is information that is available but not in the public domain, I would like to know about it. I would like, at least, to know that the data on suicide and self-harm during the last lockdown are being considered as we make these difficult decisions.

Finally, this provision relates specifically to the Mental Health Commission. Has any study been carried out in respect of the impact of having sittings of the commission take place remotely on the people who are the subject of those decisions and are being detained involuntarily? I cannot imagine anything worse than being strapped down and administered medicines against my will but I accept that doctors say it is necessary to protect the individuals who are being administered the medicines and sometimes others around them. People are not able to challenge such a decision in person. It is being done remotely and they are being told by the person who is advocating their detention that the commission has agreed that they should be detained. These patients are not being told by the decision makers, because they are remote from the individual. The individual is being informed of the outcome by the person who has said to him or her: "I know you do not want to be detained but I am saying it is for your good." For that person to be going back to the individual and saying the commission agrees with that decision is unfortunate. We need more information on the impact this is having. I know the Minister of State does not have that information today and I am not raising the matter by way of criticism of her. I certainly am not raising it by way of criticism of the staff of the Central Statistics Office or the National Self-Harm Registry Ireland, who were obeying the law. We need to make sure we learn from what went on before and that we are in a position to make these decisions with much more information, if we have to make them again. I thank the Minister of State for her time.

Amendment put.



In accordance with Standing Order 80(2), the division is postponed until the weekly division time this evening.