Seanad Éireann debate -
Wednesday, 13 Jun 2001

Vol. 167 No. 2

Mental Health Bill, 1999: Committee Stage (Resumed).

SECTION 16.

Question proposed: "That section 16 stand part of the Bill."

Mr. O'Toole

Ba mhaith liom cúpla focal a rá ar an mhír seo den mBille, ó thaobh dhearcadh mhuintir na nGaeltachtaí de. Cén sórt tacaíochta atá ann do dhaoine a thagann isteach in ospidéal ó na Gaeltachtaí agus gan Béarla ar a dtoil acu? Níl mé sásta go mbeidís in ann an méid atá ag tarlú dóibh a thuiscint go soléir. Bheadh deacrachtaí ag baint leis sin. Tá an Bille de dhíth sa mhéid sin. Ba chóir go mbeadh ábalacht éigin sa mBille chun a bheith cinnte de go mbeadh Gaeilge ar a dtoil ag dochtúirí comhairleacha a bheadh ag comhairliú nó ag deileáil leis na daoine seo ar aon bhealach.

Would it not be very important, even in a constituency like the Minister's where people would come from the Gaeltachtaí, that there should be some access for them to an Irish language support or structure? For instance, ag féachaint ar thosach na míre sin, deirtear go gcaithfear, "give notice in writing of the making of the order to the patient". Ba chóir go mbeadh sin scríofa i nGaeilge dóibh siúd go bhfuil Gaeilge acu mar theanga bhaile. It seems that of all times this support should be available then.

I have seen this need in my home town and county and it is not unusual. Seosamh Mac Grianna wrote an astonishing book in the Irish language about his experiences in this situation and I emphasise strongly the need for support on behalf of people from the Gaeltachtaí.

Ní hamháin sin, there is also the situation of people coming from overseas such as asylum seekers or immigrants. Cases were reported in the tabloids recently of immigrants who found themselves in situations similar to the ones outlined in section 16. It may well be that refugee and asylum legislation covers the area of interpretation and support services and immigrants may be covered by other specific ad hoc legislation but i gcás daoine ón dtír seo a bhfuil cónaí orthu sna Gaeltachtaí agus nach bhfuil Béarla ar a dtoil acu agus go bhfuil Gaeilge mar ghnáth-theanga acu it would be absolutely crucial and essential that any advice they received in writing or otherwise should be in the Irish language. That is another reason why the idea of advocacy support which would be provided by a group like the National Disability Authority could be provided as Gaeilge. I would like the Minister's view on this. It is a flaw in this section of the Bill and that is why I raise it now.

Dr. Henry

I support Senator O'Toole. While the legislation may be there for refugees in the Refugee Act it is certainly not there for Irish speakers. Senator O'Toole has pointed out that in the Minister's own constituency there would be Irish speakers. Because of my own poor Irish I have run into trouble with elderly people from the Meath Gaeltacht occasionally. With elderly people with psychiatric problems there will be even more trouble.

Mr. Ryan

Tacaím le mo chomhleacaí sa chás seo. Tá aithne agam ar dhochtúirí, siciatraithe, atá ag obair san iar-dheisceart, go mórmhór i gCiarraí, agus deir siad liom nuair a théann siad amach ag déanamh clinicí in aice leis na Gaeltachtaí go bhfuil sé tuigthe go mbíonn sé de dhualgas orthu Gaeilge líofa a bheith acu. Tagann daoine isteach chucu, seandaoine go speisialta, agus ní féidir leo a mhíniú cad atá ag cur isteach orthu in aon teanga ach amháin Gaeilge. Bheadh sé náireach dá mba rud é go raibh míbhuntáiste de shaghas éigin ag daoine ó na Gaeltachtaí maidir lena gcearta a thuiscint, toisc nach raibh sé de dhualgas ar dhochtúirí nó ar an gcóras rudaí atá bunúsach ó thaobh saoirse an duine a mhíniú dóibh sa teanga a thuigeann siad agus go bhfuil siad compordach inti. D'fhágfainn faoin Aire conas é seo a leagadh amach. Níl mé chun an iomarca brú a chur. Ní bheadh sé ceart go mbeadh ar dhaoine rudaí mar seo a thuiscint agus gan iad compordach sa Bhéarla. Tá daoine ann fós agus beidh go deo sa tír seo, nach mbeidh chomh compordach sa Bhéarla agus atá siad sa Ghaeilge.

Dr. Fitzpatrick

Tá fadhb ag na Seanadóirí Ó Tuathail agus Ó Riain mar gheall ar an nGaeilge. Tá mise ag cleachtadh i lár na cathrach agus níl me in ann Fraincis, Portaingéilis ná na teangacha eile a labhrann na daoine atá ag teacht isteach chugam a labhairt. Níl mé ábalta labhairt leo. Tá fadhb le réiteach againn anseo. B'fhéidir go bhfuil sé de chumas ag an Aire rud éigin a dhéanamh mar gheall uirthi. Nílimid ag caint mar gheall ar dhaoine atá lonnaithe sa nGaeltacht amháin ach ar dhaoine i gceart lár Bhaile Átha Cliath chomh maith.

Mrs. Jackman

I agree with the Senators regarding the need to do something in relation to Gaeltacht areas. Vulnerable people in those areas are entitled to communication, to be listened to and to be understood, as are those to whom they are speaking. Senator Fitzpatrick made an interesting point in relation to his practice, although he is obviously multilingual. I under stand the need to look at this issue in the light of our becoming a multicultural society.

Dr. Moffatt

Aontaím leis na Seanadóirí ar an bpointe seo. As Senators are aware, the Department of Health and Children is anxious that we should be bilingual. If people require services in Irish or other languages, we will try to facilitate them. As I said in response to Senator Glynn, it is important that consultants should know a patient's background, language and culture when they are being admitted and treated. Provision in that regard has been made by most health boards, who go out of their way to try to provide services in other languages. Although Irish is the language primarily involved, we have run into problems with asylum seekers, as Senator O'Toole has said. Senator Fitzpatrick mentioned similar problems in his GP practice.

Nothing in this Bill precludes services from being provided in Irish. My colleague, the Minister for Arts, Heritage, Gaeltacht and the Islands, Deputy de Valera, will soon introduce the Official Languages (Equality) Bill. The right of citizens to receive services through Irish is being dealt with and the Bill will come before the House shortly. Health boards are delighted to facilitate people, where possible, regarding the rights they should have and will have regarding their language. If interpreters are required, health boards will provide them without a problem. It is important for the working of the health system that we are in a position to provide such services.

Mr. O'Toole

Níl mé ró-chinnte and I am not trying to be awkward. Cuireann cearta mhuintir na nGaeltachtaí isteach orm i gcónaí. Polasaithe in aghaidh na teanga atá againn. Bíonn polasaithe dírithe níos mó ar mhuintir na ngalltachtaí ná ar mhuintir na nGaeltachtaí. The same problem was evident last week when muintir na nGaeltachtaí were not sent Nice treaty documentation as Gaeilge, which would have been a small gesture.

We need to respect human rights as well as responding properly to people's needs. I have listened to what the Minister of State has said agus tuigim an méid ata á rá aige agus go bhfuil sé báúil don méid atá á rá agam féin. Tuigim, chomh maith, an méid atá ráite ag an tSeanadóir Fitzpatrick mar gheall ar na dídeanaithe i lár na cathrach.

There is a flaw in this section of the Bill. I would like to hear the Minister state that, where Irish is a patient's normal language of communication, he is entitled to ask for the letter referred to in subsection (1) of section 16. The patient should be entitled to a list of rights, given to them in writing as Gaeilge.

Dr. Moffatt

Entitlements can be a problem, as in certain situations there may not be a psychiatrist available who is proficient in Irish. A nurse or some other person may accompany the psychiatrist to assist in such a situation. It is difficult to give absolute guarantees, but the intention of the Government and the health service is to provide patients with access to their native language where possible.

Mr. O'Toole

I am grievously disappointed. An rud atá ag cur isteach ormsa, agus ceapaim go gcaithfeadh sé cur isteach ar an Aire Stáit, go bhfuilimid ag caint mar gheall ar dhaoine i mBéal an Droichid nó an Daingean nó Dún Chaoin nó pé áit agus go bhfuil siad ag dul isteach in ospidéal agus gan a bheith cinnte cad iad a gcearta. They cannot be sure of their rights, which may never be explained to them in their own language in their own country. It is really disgraceful. I realise this is not the Minister of State's fault and I do not wish to labour the point. The people of the Gaeltacht are always left last in line for everything and are never looked after. This is a simple matter and the Government, at the very least, should be prepared to put money into ensuring it is possible to find somebody to interpret or translate if the consultant is not compordach leis an nGaeilge. Ní mór le rá é sin agus nílim ag iarraidh a lán ag an bpointe seo. It is another example of the disregard for cearta mhuintir na Gaeltachta.

Mr. Ryan

We are moving from the process of involuntary admission to the process of adjudicating on it. I have searched the Bill and I cannot find a statement that involuntary admission can only be used where a patient declines or is unwilling to be voluntarily admitted, which I would have thought would be a necessary precondition. I have looked at section 8 which describes the steps which must be taken: "a person may be involuntarily admitted to an approved centre pursuant to an application under section 9 or 12 and detained there on the grounds that he or she is suffering from mental disorder." It does not say the person has to have demonstrated or shown a reluctance to be hospitalised voluntarily. It seems that anybody may be involved.

Section 12 states:

where a member of the Garda Síochána has reasonable grounds for believing that a person is suffering from a mental disorder and that because of the mental disorder there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons, the member may either alone or with any other members of the Garda Síochána–

(a) take the person into custody

There is no suggestion in either case that the person has to be somebody who has declined to go to hospital voluntarily. It could apply to anybody. I may have missed something, but I do not find a section in the Bill which provides that this should apply only to people who will not go to hospital voluntarily. I would like to know where that is written into the Bill.

Dr. Moffatt

Section 4 deals with this issue in providing that all decisions shall be taken in the best interests of the patient.

Mr. Ryan

Section 4 has nothing to do with that. There is nothing in the Bill that provides for a test which would show that the person would not go to hospital voluntarily. We do not want this to become the easiest way to get somebody into hospital. It may take a bit of chivvying to get somebody into hospital if they are not well. However, many people go to psychiatric hospitals voluntarily, and I cannot find provision anywhere in this Bill that there must be some test which shows that a person would not voluntarily go into hospital.

Dr. Fitzpatrick

The answer to that is when people who are obviously a danger to themselves or to the public refuse to go voluntarily to hospital. I have been faced with that and so has the Minister, and so has the Senator's wife.

Mr. Ryan

So have I.

Dr. Fitzpatrick

What does one do when faced with a person who will not go?

Mr. Ryan

All I am asking is why is there not something in the Bill that refers to that. There is nothing in the Bill to indicate that it applies to people who say they will not go to hospital. There should be something in the Bill which indicates that it applies to people who say they will not go to hospital. This Bill, as it is written, applies to everybody who is psychiatrically ill, and it is not meant to.

Dr. Fitzpatrick

Every Member in this House, with the exception of Senator Ryan, has been faced with the problem of a person who is demonstrably ill. We are not talking about somebody whom anybody, not necessarily medically qualified, would regard as needing to be taken into care for their own protection if not somebody else's. That is the bottom line. There will be no grey areas. This will be black and white. Surely that does not need to be written into the Bill.

Mr. Ryan

Funnily enough, I do. I will not make an issue of it; it is too late in the day. However, this Bill should specifically apply to people who say they will not go or in respect of whom it be adjudged that they will not go. Many people can be persuaded to go to hospital. I am sure Senator Fitzpatrick has persuaded people who arguably could be a danger to themselves, who are depressed and perhaps suicidal, to go to hospital. There is nothing in this Bill which provides that people should first be given the choice of going to hospital voluntarily. I cannot understand why.

Dr. Moffatt

Every doctor will try to persuade a person go voluntarily into hospital. Unfortunately situations arise where there is no alternative.

Question put and declared carried.

SECTION 17.

Dr. Henry

I move amendment No. 34:

In page 16, subsection (1), between lines 24 and 25, to insert the following new paragraph:

"(c) assign a legal representative to represent the consultant psychiatrist unless he or she proposes to engage one,".

I am grateful to the Law Reform Committee of the Law Society for pointing out this and some other important aspects of the Bill. The patient has legal representation, and that is right and proper. However, as a medical practitioner, the Minister will note that the consultant psychiatrist does not have legal representation. There is nothing to stop him engaging a legal representative, but who will pay? This is surely unfair. The medical practitioner who was involved in admitting a patient in the past had no chance of legal representation either. Unfortunately, the tribunal is quite an adversarial system as it is laid out here. The consultant psychiatrist should, therefore, be entitled to legal representation as well.

Dr. Fitzpatrick

We argued this earlier today. Consultant psychiatrist means a consultant psychiatrist who is employed by a health board or by an approved centre. Such people have medical indemnity or insurance from the MDU or the MPS, or they are covered by their health board. We had a discussion earlier about narrowing the range of people who could make decisions. Now we see the benefit of it. These people will now be covered by medical indemnity.

Dr. Henry

Medical indemnity is costing the health service £400 million at the moment. The MDU, the MPS and Senator Glynn's organisation will have trouble when I pass on the good news to them that now they will have to give further legal representation. I thank Senator Fitzpatrick for his explanation, but I would like confirmation from the Minister that the Department will encourage the medical insurance companies to cover all those who have to come before the tribunals because I am sure they will be very anxious to increase their fees accordingly.

Dr. Moffatt

Let me emphasise that a tribunal is not a court. A tribunal is an inquiry into the propriety or otherwise of a person's detention. The remit of the tribunal is simply to ascertain whether a person is mentally disordered to the extent that it requires a restriction on their liberty. It is not the task of the tribunal to assign blame or to determine any question in relation to liability on the part of the consultant psychiatrist, the general practitioner or anyone else involved in the detention of a person concerned. It would not, therefore, be appropriate for the Mental Health Commission to assign legal representation to the consultant psychiatrist concerned as he or she is not on trial in this regard.

Dr. Henry

This allows appeal to the Circuit Court. We have to be sensible about this. The Minister knows as well as I the situation regarding medico-legal cases. There is great difficulty. If the Minister can assure me that the Department of Health and Children has no problem in extending cover, with the Medical Defence Union and the MPS, as Senator Fitzpatrick has suggested, and that it will cost more money, I will have no worry about it.

Dr. Moffatt

They are already covered if they are working for the health board. In addition, it will be necessary to get the permission of the High Court before bringing any case against a person who is acting under this legislation.

Dr. Henry

I do not know about that. We may be covered already, but we are covered for specific things by the MDU and the MPS. If there is any change there will be a change in the indemnity fees we have to pay. From what the Minister says, I cannot accept that he can ensure that the MDU and the MPS will cover us. I have known people who have had considerable problems getting representation from these bodies in respect of matters which were not strictly medical negligence.

Dr. Moffatt

With the advent of this Bill there will be a lot more protection and there will be a lot less likelihood of people being sued in regard to involuntary detention with all the safeguards that will be placed here in this Bill and I think there will be less likelihood of people facing litigation than previously.

Amendment, by leave, withdrawn.

Progress reported; Committee to sit again.