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Seanad Éireann debate -
Thursday, 21 May 1981

Vol. 95 No. 19

Health (Mental Services) Bill, 1980: Committee Stage (Resumed) and Final Stages.

Question again proposed: "That section 19 stand part of the Bill."

Section 19 (5) (a) provides that a recommendation for reception shall state the date of examination and shall be signed on the date of examination. The Minister does not foresee any difficulty there. Later on we find that the certificate must contain a statement of facts from which the registered medical practitioner forms his opinion — facts observed by himself and facts communicated by others. That could be quite a lengthy document. It might not be possible to prepare it possibly until the next day. One could envisage a situation where the examination might have to take place late at night and it might be impossible because of a lapse of time to sign it on the date of examination. The certificate might have to go the next day.

In effect this requirement at (a) is broadly similar to the provisions in the existing legislation and likewise (c). To my knowledge it has not caused any problem. It is similar to the existing situation.

Is it exactly the same?

Not exactly in every detail but the requirement is quite similar.

The point I am making is that the recommendation would seem to be invalid if it is not signed on the same day as the date of the examination. This imposes an unnecessary obligation on the practitioner.

Yes. As I say, it does not seem to cause a problem currently.

Is the obligation the same currently?

Yes, so I am informed.

Question put and agreed to.
Sections 20 to 22, inclusive, agreed to.
Question proposed: "That section 23 stand part of the Bill".

Do I read subsection (2) right in that it provides for a holding period until a final assessment is made?

Yes. It provides for 48 hours pending the final assessment by a consultant. This would meet the impracticality of always having a consultant available immediately. So it is a holding period.

Question put and agreed to.
Sections 24 to 26, inclusive, agreed to.
Question proposed "That section 27 stand part of the Bill."

This is in effect power to arrest given to a member of the Garda or to an employee of a psychiatric centre. They are given power to bring a person back but to do that they must arrest him. Is the legality of that situation clear or does it need to be spelled out more specifically?

The legality of this has never been contested. It would, of course, be necessary to have the power because of extreme circumstances that may arise — quite infrequently, of course.

I do not dispute the need for it. It is an obvious provision to make but what I question is whether it is made in a form that permits the people lawfully to arrest the absconding patient in order to take him back. If he escapes from a detention order, what is being suggested here is that he can be taken into custody and brought back. Does the detention order give that power?

Yes. It enables the Garda, for example, to enter a house without a warrant in order to bring back a person who had absented himself or herself without leave. A similar provision was included in the previous legislation.

The fact that it was never challenged does not mean it might not be challenged. When we are dealing with it here we should be satisfied that what we are passing would stand up to any constitutional challenge as to the nature of the detention following an escape. Are there powers of arrest? That is what is being proposed here.

It is necessary in any event. On the question of whether it would stand up if contested, the fact is that it has not been contested. As I say, this is a provision that has been, for very good reasons, in the existing legislation.

Question put and agreed to.
Section 28 agreed to.
Question proposed: "That section 29 stand part of the Bill."

Section 29 (2) (a) provides that a transfer from a district psychiatric centre shall be made by the health board. I am not sure about the position with regard to health boards. Are their powers analogous to local authorities for whom they are reserved in executive functions and who would make the decision here? I presume it would be made by the chief executive officer.

It would be the chief executive officer of the health board.

Is this a reserved function for him?

By which statute?

It would come under the Health Act, 1970.

Is there a provision in the Health Act, 1970 that would take in this power in the Bill before us?

There is a linking provision in section 1 of this Bill.

Question put and agreed to.
Section 30 agreed to.
Question proposed: "That section 31 stand part of the Bill."

The only place at the moment to which this could apply is Dundrum. Does the Minister envisage having others, or is he just taking the power in case the need might arise?

That is all. There are improvements and extensions taking place within Dundrum.

Question put and agreed to.
Question proposed: "That section 32 stand part of the Bill."

This is the contentious one, where we disagree on the length of notice a voluntary patient should be required to give before he leaves. Basic to all this, where is the law to require him to give any notice? Perhaps the Minister could enlighten us on that?

It would be contained in the original Act. The 72-hour period was required and we are including a 24-hour provision in the present Bill.

But the original Act is being repealed and what is being said here is that a person who is under care otherwise than a detained patient may give written notice to the medical officer in charge that he wishes to leave and that he shall be entitled to and allowed to leave. The point I am making is, where is the law to make him give any notice at all? If a voluntary patient, a patient who is not a detained patient says, "I am off", can he be detained?

Only in so far as there is an obligation here to give notice; there is no other legislative cover for inclusion either of the 24 hours or previously of the 72 hours.

So in fact there is no law to keep him for 24 hours or for 72 hours?

No, other than to give notice.

He did not have to give notice?

It is just one of the limited ways in which voluntary patients come into consideration in this Bill at all. It is just a requirement to give notice. That is all.

But it is one that can be ignored without attracting any sanction?

That is possible.

Would it not be better if we all agreed that some notice is required in the case of voluntary patients, that we should put some obligation in this regard into the provision? In other words, if he does not give the notice, he cannot leave.

In practice, the 72-hour provision has worked. The Bill deals with the requirements for admission and for detention. The provision is included within those requirements but it is just a requirement to give the notice.

Or they could refuse to give any notice and just walk out.

They would be required to give the notice. The problem the Senator mentions is the one of compulsion which certainly has not arisen in relation to the 72 hours.

I appreciate that, but if a voluntary patient decides that he is not going to give any notice there is no way in which he can be kept in the institution and any attempt to keep him in the institution would constitute unlawful imprisonment.

He would have gone at that stage anyway.

I am talking about his not being allowed to leave.

Presumably he would be detained for the period in that event. The question really which the Senator raises is that the patient could have an appeal against that in that he was only required to give the notice. There is an administrative means by which he would appeal. Is this not the point the Senator is making?

No. It is very desirable that a voluntary patient would not be allowed to discharge himself without giving notice. We may disagree over the length of notice but we agree that it is desirable that he should give some form of notice. The point I am making is that under the present law he need not give any notice. We can express here a wish that he would give notice but if a voluntary patient decides to get out without giving any notice whatever there is no way by which he can be impeded from leaving the institution and if he should be impeded from leaving the institution he would have an action for false imprisonment.

The basic point here is that the doctor is protected by the requirement to give the notice and on that basis the doctor would detain the person as being in his or her medical opinion not suitable for release within that period.

So what the Minister is saying is that subsection (2) allows the medical officer in charge of the centre to detain a person for 24 hours after he gives notice of his intention of wishing to leave.

I must disagree totally with the Minister. That power could not be read in any way into that subsection. Perhaps it is a pity we raised it and exposed it. We have been codding voluntary patients for the last 30 odd years.

There is a common law obligation on doctors to protect the patient in the first instance. It is probably under this provision that the procedures then give the doctor the right to require the notice of a person's intention to leave.

I do not think the common law obligation would extend to imprisoning the voluntary patient if he wants to go. The doctor's obligation would be discharging and recommending and advising the patient but I do not think it would extend to imprisoning the patient which is in effect what would happen here.

In any event, the patient could leave after that period of notice and then the doctor would have to make arrangements for a formal reception order if in his view the person needed attention and was not prepared to have it voluntarily or was not suitable for voluntary——

The doctor would be prohibited from applying for a reception order.

He could make arrangements to have that done at that stage.

That is skating on very thin constitutional ice.

He would still have to go through the procedure to do that.

Would it not be better to have a situation where the medical officer could not detain the person for the period, let it be 24 hours or 72 hours, and that in law there would be a specific provision to provide for that?

In practice there is no difficulty in detaining a patient, especially with modern treatment methods and otherwise, but in the event of a patient being unduly upset or disturbed it is to cover the doctor more than anything else.

We are of one mind about the desirability of it. What I am querying is the legality of it as presently proposed. What I am suggesting is that in order to protect the doctor and the patient there should be a positive legal provision to ensure that a person cannot leave, that a voluntary patient becomes in effect a detained patient for a period of 24 hours, that there is some certification process.

In effect, the mechanism has operated quite satisfactorily and obviously the number of instances when it occurs is very small. The danger of providing further legislative certainty about it would probably have a very adverse effect on patients going in in the first instance as voluntary patients. In view of the experience to date with the previous measure and the likely situation arising under this, I think it is desirable that we have this provision.

The Minister has said that in view of the satisfactory experience so far and this would include the 72 hours requirement——

Our difference of opinion here is that we see that from the other side of the coin, that is, that having a 72-hour requirement is a sort of negative influence on people going in in the first instance. It is not that the problem arises internally but that it can be seen as a somewhat draconian measure. I might add that we have had discussions with the profession about this and they are quite happy with the 24 hours as a new arrangement but they are reluctant to depart from having any period of notice.

Have the profession indicated, or how does the Minister know, apart from his instinct, that the 72 hours has been a deterrent?

Obviously, it is not quantified. Nevertheless, that is the suggestion and even from the point of view of commonsense and the fact that we are trying to encourage more people to go in for treatment at an earlier stage it is a facility.

The number of potential patients who would know that 72 hours notice is required would be few.

That is fair enough. If they do not know it will not worry them but if it became known it could worry them.

Question put and agreed to.
Sections 33 to 35, inclusive, agreed to.
Question proposed: "That section 36 stand part of the Bill."

Could the Minister indicate the present position in regard to inspections of psychiatric institutions? Is there such a system of inspection and reporting and, if so, what do the reports cover?

There is a system of inspection. There is an inspector of mental hospitals. Under the Bill the inspector is not required to report annually. In fact I have arranged for him to present a report which will be available very shortly. He carried out an extensive study during 1980 and that also will be presented shortly. The provision here would be for a visit and inspection in each year of each of the special district and registered psychiatric centres and to report to the Minister on the study. There was no requirement to do that each year in the previous situation.

What will the Minister expect the inspector to report on?

On general conditions, the general operation of the centres and the facilities. The need for this has changed greatly over the years because of the establishment of the health boards. They are much closer to the units anyway. They have visiting committees. The whole situation has changed. The old walls have gone and people are going in more frequently and so the original concept was somewhat different. This will provide for a system of inspection and to ensure that there is such an inspection.

I should put on the record in fairness to the old joint committees that they were even closer than the health boards to the medical and mental hospitals.

I raised a point in that regard. My views on the health boards are, I think, generally known. I asked the Minister if he were happy that one person would inspect the units? I am now asking him this question again. Some of us who are serving in local government happen to be on some of these inspection groups.

The Minister can appoint one for each health board or centre if necessary. It is important to bear in mind here that under this legislation we will have a system also whereby the review boards will be reviewing the patients as well as another independent grouping for each centre. The way in which the other institutions or the health services operate currently is that the Minister is in a position to designate an officer for a particular job and this works very satisfactorily. If the Minister is not satisfied with a particular offer then he can designate another one. There is more flexibility in this way from the point of view of the Minister in relation to the person designated, whereas in the previous system there was just a person who was the inspector and who had the total task nationally. I just want to add to that that the report of the inspectorate which is due out shortly, is a three-year report.

With regard to registered psychiatric centres — I presume that is private hospitals — is this a new provision or does the inspector visit private hospitals?

No, it exists already. It is just a new form.

Question put and agreed to.
Question proposed: "That section 37 stand part of the Bill."

On the composition of the board, did the Minister get a contrary view?

A view was expressed by some of the representatives in the medical profession. In our discussions we covered the point that there should be a majority of the medical profession on the review board. The attitude which I took was that there are different elements to be considered at that stage. A consultant psychiatrist would be involved as a person who would have the most specialised knowledge in relation to any case which comes up. Then the person presenting the case or discussing the case at the board would be a consultant from the centre itself. There is a fairly strong weighting in that event in relation to the professional side. The question of the person's rights in general can be covered by the legal profession and then there is the commonsense layman to bring forward the views of the layman. That has been accepted. There was discussion about it certainly but it has generally been accepted.

Question put and agreed to.
Section 38 to 40, inclusive, agreed to.
Question proposed: "That section 41 stand part of the Bill."

This provides for periodic reviews by the review board in the case of long-term patients. The provision states that it shall, if it thinks proper, decide that the person should not be discharged or that he be discharged conditionally. It also provides that before directing the discharge the board should satisfy iself that detention and treatment are no longer necessary in the interest of the person's health or safety or for the protection of other persons. It is commonly and correctly believed that in our mental hospitals there is a substantial proportion of non-mental geriatric cases who are very long-term patients — indeed maybe for the bulk of their natural lives they have been patients in some of these hospitals. Will it be purely medical indications or will the board be entitled to take social indications into account when deciding what to do? How is it going to ignore people who are there so long but who should not be there? There is an obligation here to discharge them unless it can be decided that for their safety they should not be discharged.

A number of administrative measures are being taken in relation to that. Obviously if provision can be made elsewhere this is most desirable if the people are prepared to go elsewhere, which is not always the case. They may not be suitable for detention over long periods and yet may have become very accustomed to it and it can be very difficult to send them away. There is also the extreme case of the person who is 104 years old and obviously the place cannot have been too bad. Sections of the centres can be re-designated and that is one way in which that could be dealt with. There is a great deal of work going on currently to modify and improve the sections within the centres. Some of them are quite capable of modification and improvement and others are not.

Question put and agreed to.
Question proposed: "That section 42 stand part of the Bill."

I take it that any proceedings by the review board will be private?

Yes. The proceedings of the review board will be private.

There would be a right to legal or lay representation here?

Yes. Another person who may be legal or lay in regard to this person.

Question put and agreed to.
Section 43 agreed to.
Question proposed: "That section 44 stand part of the Bill."

Will the Minister indicate what is involved in this section, please?

The section envisages making rules, if circumstances warrant it, relating to treatments which are hazardous. The section does not compel the making of regulations and is a safeguard. The provisions in this section are new. There is also the fact that nothing exists in our present mental treatment legislation regarding the giving of consent to any therapeutic procedure. In practice, what appears to happen is that where a patient is capable of understanding the situation he or she is asked for consent. Where he is too disturbed to give it, the doctor proceeds with the treatment in any event if he considers that this will be beneficial. There is a view, and not a unanimous one among those concerned with the psychiatric services, that there should be some statutory directions in this regard. The principal procedures that might be covered by these provisions are in relation to induced convulsive therapy, photo-convulsive therapy, lobotomy and a number of other measures like that, ECT, which is commonly known as shock treatment, and certain forms of psychotherapy. This provision is made here so that the medical profession themselves can give a judgment on what therapy is suitable and if there is a reference to them.

The effect is that in regard to the treatments the Minister has mentioned in the case of a patient who is incapable of making a decision himself this section now authorises the medical profession to apply that treatment. Is that correct?

Yes. If there is a controversy as to the question of who will decide whether the therapeutic procedure is an acceptable one. The question here is that rather than the Minister deciding this, it may be referred to the Medical Council for decision.

If approved by the Medical Council, it may be applied in an individual case by the practitioner without further reference to anybody?

Under subsection (2) it is stated that this cannot be applied unless the person has given his consent.

Yes. The subsection is quite clear on that, that unless consent is given or is given by a person specified in the rules it shall not be applied.

Question put and agreed to.
Question proposed:"That section 45 stand part of the Bill."

Is this a new requirement?

It replaces section 272 of the Mental Treatment Act. That section provided that on the occurance in a mental institution of any of the following matters a report shall be given to the Minister in respect of an injury to a patient in the institution, an assault or alleged assault, an outbreak of infectious or epidemic disease whether affecting patients only, staff only or both, and any other matter of serious importance to the welfare of the patients. The new provisions make the following changes: a report of the matter must be sent to the chief executive officer of the health board in addition to the Minister; existing injuries on reception and minor injury to the person while undergoing treatment are not required to be reported; all deaths must be notified. The existing legislation requires that assaults or alleged assaults on a patient by a member of the staff be notified but new provisions in this respect are more generalised. The requirement that outbreaks of infectious or epidemic diseases be reported has been dropped as this is covered by the infectious diseases law. They are the main differences.

Where is the obligation to take action on foot of the report, to investigate the report to establish its bona fides or validity? If that is established, what mechanism comes into play then?

It is taken that the Minister and the chief executive officer will be responsible and that any necessary action in the normal administrative way will be taken. The provision here makes sure that the occurrence is made known, because of the closed nature of the centres.

For example, if there is an assault on a patient irrespective of whom the assaulting party is, that might give rise to the patient making a claim to the Criminal Injuries Tribunal for personal compensation. Does the Minister envisage that such a claim would be made on behalf of the patient?

It would depend on the gravity of the matter and of the injury. I suppose it would be true to say yes.

Question put and agreed to.
Question proposed: "That section 46 stand part of the Bill."

Is this a new provision?

No. There is a similar provision in section 260 of the Mental Treatment Act, 1945, as amended by the Public Authorities (Judicial Proceedings) Act, 1954. It is regarded as a necessary safeguard to protect relatives, mental hospital staff and so on form legal proceedings arising from the detention of patients.

Question put and agreed to.
Sections 47 to 50, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.