We now come to amendment No. 35 in the name of Senator Henry. Amendments Nos. 36 and 37 are related. Amendments Nos. 35, 36 and 37 may, therefore, be discussed together.
Mental Health Bill, 1999: Committee Stage (Resumed).
I move amendment No. 35:
In page 16, lines 29 and 30, to delete subparagraph (c)(ii).
The reason I tabled these amendments is that it seemed more logical to have the section so described. As it is currently drafted, it provides that the tribunal is to examine the patients concerned, then to interview the consultant psychiatrist responsible for the care and treatment of the patient and to review the records relating to the patient. I would have thought it would be better to interview the patient, then look at the records and review them and interview the consultant psychiatrist. I also thought it would be a good idea if the consultant psychiatrist were allowed to make a statement on the case because it can be quite hard to get an overview of a case from reading case notes.
It should be possible, if the consultant psychiatrist is not available, to interview his or her locum or the consultant covering his or her work and to allow that person to make a statement on the patient's condition. I did this to avoid any delay in the patient's detention if at all possible, because the consultant psychiatrist just might be unavailable. If a locum or another psychiatrist is covering his or her work in general, I would have thought it would be wise, unless the patient had some serious objection, to allow that person to stand in for the consultant psychiatrist. These amendments are aimed at making the Bill as practical as possible.
A decision to admit a patient involuntarily, thereby depriving him or her of his or her liberty is very serious and in view of that it is a decision reserved for consultant psychiatrists. I do not accept that an interview with a locum or with the consultant covering the consultant psychiatrist's work would be appropriate in this instance. The consultant who made the order is the person who must defend his or her decision, if necessary before the tribunal, and it is he or she who should be interviewed by the independent consultant.
That is fine but the Minister of State will accept that there may be a considerable delay, for example weeks, because when tribunals are established the person to be interviewed may be on holiday, attending a medical meeting abroad or whatever. Is it proposed to bring such a person home? Time is of the essence with the establishment of these tribunals.
The consultant or locum consultant should be in a position to take that decision. He must answer to the tribunal.
The Minister of State indicated earlier it would be the consultant psychiatrist in charge of the case. He cannot say the locum consultant would go to the tribunal. If the consultant psychiatrist is in Rio de Janeiro and the tribunal is to be held a week later, is the consultant psychiatrist to be returned or can the locum stand in for him at the tribunal?
What I meant was that the locum who made the order that the person should be admitted involuntarily should be called to the tribunal. It could be a locum or a consultantin loco the whole time.
I am not clear about the Minister of State's position. Will locums suffice? This is an example of my concerns about the practicalities of the working of this legislation. The Bill is not clear. I take the provision to mean the consultant psychiatrist involved in the admission of the patient or the locum consultant concerned with dealing with the patient. Suppose they are in Rio de Janeiro for six weeks, because it is costly to travel there, do we delay the tribunal until they return? Does the person have to stay in hospital for six weeks?
We are in a quandary about this. The tribunal cannot be delayed in view of the 21 days provision. I presume the original consultant in charge of the unit would be called.
Let us be clear that the consultant psychiatrist who is in Rio de Janeiro must be called back. This is what the Bill provides for. I have complained all along that the working of the Bill is not being considered.
I am advised that the Bill provides that it should be the consultant responsible. That might get us out of the difficulty.
Let us be clear on this. Is it the consultant who admitted the patient to the approved unit or the consultant who is giving clinical care for the patient who is being referred to?
I presume in that instance it would be the consultant giving the care.
At the outset it was the consultant who had admitted the patient.
That normally would be the procedure but if somebody is acting in a locum capacity I presume it would refer back to the consultant in charge of the unit.
We have no clarity on this because the Minister of State cannot advise whether it is the consultant who admitted the patient or the consultant who has clinical care of the patient who will attend the tribunal. We need to resolve that aspect, whatever about locums and people who are covering. It is very important because we do not know who is the person described in this section. I wonder how we have got to this pass that we do not know which doctor we are talking about.
Let us say Dr. A admitted the patient while Dr. B provides clinical care. This is possible in even a modest sized unit because Dr. A may only have been covering for the weekend when there was a consultant in charge. However, in all cases in an acute and psychiatric hospital cases are allocated to the different disciplines and specialities on a Monday. We do not know which doctor we are talking about.
There is always in hospitals an admitting consultant and a consultant of continuing care.
That is correct.
If one is admitted to the accident and emergency department the consultant on duty that night admits one and makes the decision to admit but one is admitted under another consultant for continuing care. That is what will happen in this case.
They are two different people and we are not clear about whether the person admitting the patient is the doctor called to the tribunal or whether it is the doctor engaged in the clinical care of the patient. This is very important and serious.
We are dealing here with the independent consultant interviewing the consultant who admitted the person. Senator Henry rightly says this is a grey area and the best way to achieve greater clarity is to return to it on Report Stage.
That is a good idea because this is an area which could fall between collapsing stools. We could get into a terrible mess over it. I will be satisfied if on Report Stage we clarify who we are referring to.
I move amendment No. 38:
In page 17, subsection (1)(a), lines 14 and 15, after “disorder” to insert “and that the approved centre has staff, resources and facilities adequate for the treatment of that disorder”.
The amendment expresses the pious hope that at least the place where the patient will be admitted will have the facilities to care for him. It is self-explanatory but I have a good idea where we will get with it.
I have sympathy with this amendment and I appreciate the Senator's concern that approved centres should have the staff, resources and facilities adequate for the treatment of patients. However, the most appropriate mechanism to ensure that all these things are put in place is to build on the functions of the Mental Health Commission. Section 64(6)(b) will allow the commission to attach conditions to the registration of approved centres, including specifications in relation to the number of staff required to be employed in the centre and the carrying out of essential maintenance and refurbishment work.
In each case where a condition was 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 carried out before the centre was due for registration again. If a further application was made for registration and the commission found 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 64(5)(b). The function of the commission ensures that these matters will be monitored, supervised and overseen on a continuing basis. There is a more effective means of ensuring that adequate standards are in place than the provision proposed by this amendment, therefore, I cannot accept the amendment.
It is always a good idea in legislation to give a push to what everybody is supposed to be doing. I am sure Senator Fitzpatrick and the Minister of State agree that a push is needed in these areas. I will withdraw the amendment in case Senator Ryan wants to revisit the issue on Report Stage.
Section 18(1) provides that the tribunal "shall review the detention of the patient concerned". Should it not be emphasised more strongly that patients do not have to go to a tribunal if they are satisfied with their treatment? That does not appear to be emphasised anywhere.
The right to review is automatic. It is contained in most international law at this stage.
I move amendment No. 39:
In page 18, subsection (1), line 8, after "patient" to insert "the applicant or the consultant psychiatrist concerned".
Section 19 is odd. It deals with appeals to the Circuit Court and I presume the doctor will have some legal representation. A patient may appeal, but why is the applicant or consultant psychiatrist not in a position to appeal? For example, he or she may be anxious about the decision of a tribunal to release a patient from involuntary detention. What is the position of the person who has clinical care for the patient that is released even though the consultant in charge of the case has grave reservations? It appears they cannot appeal.
What will happen if the person leaves the premises and commits suicide or kills somebody? Who is medically responsible in a legal context? The clinician or the applicant who sought the involuntary admission of the patient does not appear to have any right to appeal. It appears only the patient can appeal to the Circuit Court.
The amendment proposes that an appeal to the Circuit Court against a decision of a tribunal to affirm an order would be open not only to the person concerned, but also to the applicant, usually a spouse or a relative, and the consultant psychiatrist concerned. The sole purpose of the appeal mechanism in the Bill is to protect the interests of the patient. This is the person who has been involuntarily detained. It is not the Bill's purpose to allow friends or relatives to appeal decisions on behalf of the patient. Each patient will have their own legal representative to advise them and protect their interests. I do not understand why a consultant psychiatrist would wish to appeal a decision which affirmed the order he or she made.
I am not clear about this matter. Is it the case that the consultant would have affirmed the decision? However, the consultant psychiatrist in charge of clinical care is not on the tribunal. That will be another consultant. Again, there is confusion about which consultant is involved. The consultant who will affirm the tribunal's findings is a different person from the person who has clinical care for the patient. That person cannot affirm the decision.
A patient may appeal to the Circuit Court against a decision of the tribunal to affirm an order made in respect of him or her on the grounds that he or she is not suffering from a mental disorder. The tribunal stage must be gone through first before an appeal can be made.
Yes, but we have already agreed that the consultant psychiatrist's notes and interviews will be brought to the attention of the tribunal. However, this relates to a window in time when a person comes before a tribunal. The clinician may still be extremely worried about the fact that the person will be released. It is right that the civil rights of the person who is involuntarily detained should be to the forefront, but their proper medical treatment must also be a priority. The clinician, who may have been caring for the patient for months, should be in a position to appeal to the Circuit Court – as the patient can do – if he or she thinks it is a foolish decision to release the patient. I do not understand the difficulty. It does not involve the same consultant psychiatrist who is on the tribunal.
There is no appeal if the person is released by the tribunal.
I am aware of that.
The Senator is worried about liability.
Do not worry about the liability – I will note that. I hope the "blacks" will be available to consultants who were against letting out a person.
I said the Senator was worried about the liability aspect.
I thought the Minister was cheering me up and telling me not to worry about the liability.
No. Legal advice suggests that the consultant psychiatrist serving on a tribunal could not be held personally liable for a decision of a tribunal or for an adverse outcome of a tribunal's decision. Under the Bill, a mental health tribunal will function as a quasi judicial body. Similar to a court, its decisions are made in the name of the tribunal and, as in the case of a court, it cannot be sued.
Confusion again arises about which consultant is involved. The legal person on the tribunal will be exempt from audit – I am fascinated by this aspect – but the Minister said the consultant psychiatrist on the tribunal will also be exempt from audit. What about the consultant who was in charge of the patient, not the consultant who is on the tribunal? I do not mind if the matter is clarified on Report Stage, but I want to know why the consultant who has had clinical care of the patient for weeks is not in a position to go to the Circuit Court and say that he or she is very anxious about the findings of the tribunal and he or she does not think the patient should be released. He or she should have a second chance of trying to explain why he or she is so concerned. The patient is entitled to the best medical care as well as their civil liberties.
If the patient is discharged, the tribunal will supersede anything before it. It is the final court of appeal.
I do not appear to be making myself clear.
The Senator is referring to a case where the admitting consultant is still concerned.
Will the consultant concerned have any medical legal liability? I am not referring to the consultant on the tribunal, but the consultant who was in clinical charge of the case. Will the Minister put on the record of the House that the consultant who was the clinician in charge of the case will have no medical liability?
I am advised that is the situation, that he or she will not have liability in regard to the decisions of the tribunal.
Is all their legal liability to the patient removed once the tribunal has made its decision? I am not referring to the consultant psychiatrist who is on the tribunal, but the clinician who has been in charge of the case. Is it clear that this person has no liability?
They would be acting in accordance with the law as laid down so I do not understand how they would have any liability. I referred earlier to where liability stands. The tribunal is the same as any other court in that regard. The psychiatrist on the tribunal and his associates would not be liable for a decision taken in the best interests, as they see it, of the patient.
I move amendment No. 40:
In page 18, subsection (2), line 15, after "concerned" to insert "and must be heard by the Court within 28 days".
It would be a good idea if the court had to hear an appeal within a certain length of time. It would create a sense of urgency if an appeal had to be heard within 28 days. At present, people on remand come first on the court lists. We should try to ensure that these people were considered in the same way as people on remand.
Recently, Mr. Justice Paul Carney said he would try to ensure that cases involving children received priority. However, no priority is given to these cases. People on remand and people who are involuntarily detained should be in the same category. I thought it would be a good idea if we introduced a sense of urgency into this. The Minister knows well what the lists are like for the Circuit Court.
I referred earlier to the need to ensure that any provisions we put into a mental health Bill will be realistic. I am concerned that this amendment which requires appeal to be heard by the court within 28 days of being made is not realistic. The Senator will be well aware of the difficulties facing the courts at present. I would be concerned that an undue burden would be applied on the courts if such provision was to be included in the Bill. It is important to remember that the patient's case would have already been heard once by a tribunal and their detention confirmed following consideration of their case by an independent consultant psychiatrist and by the consultant psychiatrist sitting as a member of the tribunal.
I do not think, therefore, it is unreasonable that a certain period of time would be allowed before their appeal be heard. Clearly, it would be desirable for the appeal to be heard as soon as possible, but we must all acknowledge the reality that the courts system is very busy. Accordingly, I suggest that the Senator withdraw the amendment.
In other words, with the delays in the courts, the case could come up in two years. A few minutes ago we were told that the most important consideration in this Bill is the involuntarily detained person. Now we are hearing of a situation where they are not even being given priority in the court lists. At least persons on remand are given some priority, but there is absolutely no priority being given to this and that is a disgrace.
Is the amendment being pressed?
No, it is not because I might reintroduce it on Report Stage, suggesting six months.
Amendment No. 45 is related to amendment 41 and these amendments may be taken together, by agreement.
I move amendment No. 41:
In page 18, lines 20 to 24, to delete subsection (4) and substitute the following new subsection:
"(4)On appeal to it undersubsection (1) the Circuit Court shall–
(a)unless it is shown by the applicant or consultant psychiatrist to the satisfaction of the Court that the patient is suffering from a mental disorder, by order revoke the order, or
(b) if it is not so shown as aforesaid, by order affirm the order.”.
This is amazing because here the person who is said to have a mental disorder has to prove his sanity. Normally, people are presumed innocent in court and the court must prove their guilt. This proposal is totally the other way around. I do not know what purpose this serves.
Imagine a person with a mental disorder who must go into court and prove that he is sane. Why is that not the case in the general courts and those who are innocent must prove their innocence? This is an extraordinary situation. How could a person show, to the satisfaction of the court, that he or she is not suffering from mental disorder? What tests will apply? I must remind the Minister that this Bill is supposed to be in favour of the person. This provision is not in favour of the person. It is giving them a very rough deal.
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. I think that will answer Senator Henry's concerns.
I find it extraordinary that the onus is on the person to prove that he or she is suffering from a mental disorder. I would have thought that it would be the responsibility of the hospital, health board or psychiatrist to establish that the patient was involuntarily admitted and had a mental disorder. Why should the onus be on the person? I would expect that the professionals who have examined the patient and initially diagnosed the mental disorder would have to prove that diagnosis. If the psychiatrist and the health board are asserting that the patient has a mental disorder, why should the patient then have to prove that he or she has not? I see no sense in it one way or the other, particularly in the context of the whole section of the Bill. I would like that subsection to be included to deal with that issue.
The amendments here are concerned with the balance which the Circuit Court must apply in hearing an appeal by an individual patient against a decision of the tribunal. The Bill is premised on the principle that the decision as to the 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 the 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. I have been advised by the Office of the Attorney General that this is the correct balance in the 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 that the authorities will have to defend the tribunal decision. The authorities will have to satisfy the court with their answers to the challenge made by the individual concerned. What the present provision means is that after hearing the evidence the court will uphold the original decision unless it is satisfied that the individual is not suffering from a mental disorder.
The amendments proposed by Senators Henry and Jackman would have the effect of having the issue reheard in its entirety. It would allow the court to commence an investigation of the kind already carried out by the tribunal and is considered to be best made by the medical profession concerned. It is also worth reminding the House that this mechanism of appeal is in addition tohabeas corpus under the Constitution.
We are now down to habeas corpus. It is objectionable to ask a person who has been diagnosed as suffering from a mental disorder to prove that he or she is not. I find it wholly objectionable. Why could it not continue as in section 18(1) where the tribunal has to satisfy itself that the patient is suffering from a mental disorder? Why could the court not do the same? It is extraordinarily unfair to the detained person. It is unjust.
I agree totally with Senator Henry. I thought this Bill was to be in support of the patient but I cannot believe it proposes that the onus of proof rests with the vulnerable patient. I do not understand the complexities of the legal aspects of the Bill but it is supposed to be a Bill to support people. I see no logic in the proposal for the onus to be on the patient to prove that he or she has a mental illness. The person should be supported in this Bill, not the legalities.
The amendment suggested by the Fine Gael group would provide adequate protection in court, where the person needs protection.
The appeal is against the tribunal and it must be proved that the tribunal is wrong.
That is what the person has to prove. It is very difficult.
Amendment No. 42 is consequential on No. 43 and they may be taken together, by agreement.
I move amendment No. 42:
In page 18, subsection (6)(c), line 32, to delete “and”.
I would have thought that it would be a good idea to get the family of the patient to attend the court case.
The amendment refers to proceedings in the Circuit Court where a person appeals a decision of the Mental Health Tribunal in relation to their involuntary detention. Notice of proceedings is served on people who would be directly affected by the matter under appeal. In this case these people would be the consultant psychiatrist whose original decision is in dispute, the tribunal concerned whose decision on review of the admission order is in dispute and the clinical director of the approved centre concerned because presumably the person making the appeal would still be resident in the centre. Paragraph (d) provides in addition for any other person specified by the court to be served notice of the proceedings.
While I agree with the sentiment expressed by Senators that it would be desirable for families to be made aware when appeals were being taken, I do not think it is appropriate that the person should be obliged to serve notice of proceedings on the family of a patient. While a family may have a personal interest, it is not their decision which is in dispute. The court has discretion in paragraph (d) to notify the family where it deems appropriate. Accordingly, I do not propose to accept the amendment.
I accept what the Minister of State has said. It is clear from the reports on the treatment of major psychiatric illness, schizophrenia in particular, that the more knowledge one can give the family about the patient and the more involved they become, the better is the outcome of the treatment. If the Minister of State wants any trials on it sent to him I can send them. Certainly the family should know about this. Apparently they are to bein abstentia from all these proceedings. It might just be worthwhile to let the family know what is going on for the sake of the patient. I am disappointed this is not being taken on board.
I move amendment No. 44:
In page 18, between lines 33 and 34, to insert the following subsection:
"(7) All persons on whom proceedings have been served undersubsection (6) shall be obliged to attend at the said proceedings.”
Given that these people will be informed of the proceedings, will they have to attend the court?
This amendment requires that every person who is served notice of proceedings in an appeal is obliged to attend these proceedings. In my view this amendment would result in an unnecessary attendance at courts by consultants, clinical directors and tribunals. If the attendance of a person is required at court they can be compelled to attend by a witness summons. Otherwise, valuable health service professionals would spend their time in court when they could be attending to the needs of patients. Accordingly, I do not propose to accept the amendment.
It is quite clear the patient may turn up with nobody from the approved centre where they are being treated.
It is not necessary to have everybody appear except those deemed necessary to appear and they will be summonsed.
I am sure that it is unnecessary. I would have thought it was an extraordinarily good idea. These are serious issues. We do not know how long the person will be kept in detention waiting to get to the court and yet when they get to the court the consultant psychiatrist who is concerned and treating them clinically does not have to turn up nor does the director of the establishment where they are being detained. This is a great mistake.
This relates to the fact that the onus is on the individual to prove if there is nobody else in attendance. I do not accept that the personnel would be best employed elsewhere. This is a court scene and an appeal proceeding. I do not know who will stand up for the victim if nobody is in attendance or if nobody is obliged to attend. In that case what is the point in including in the section the consultant psychiatrist, the tribunal, the clinical director and any other person if they do not have to attend? It makes no sense.
The import of it is that if they are required they will be summoned.
The word "obliged" is not strong. I cannot understand the reason there would be vexation in relation to using it to guarantee that they would be in attendance. It is only cementing what is contained in the Bill.
The position is that everybody involved in the case will not be routinely required to appear at the case.
Does a broadcast include the Internet? Subsection (11)(c) refers to any person who transmits. Does this include cable operators and, if so, can they be prosecuted? This is a difficult one because it is hard for cable operators to know what is going over their cables. Could we have Denis O'Brien appearing at another tribunal?
I presume it does.
So cable operators can be sued.
They can be sued. That is something. Is the Internet covered in subsection (13)?
All modalities would be covered in this section.
There is a big difficulty here. We have been talking about a clinical director who may have had nothing to do with the patient. There is no instance of referring to the clinician involved in this section. I would have thought it would be advisable to insist that the clinical director at least consult with the clinician in charge of the case but apparently it does not matter.
It goes without saying that he would be involved.
It does not go without saying. It is not stated in the Bill.
Is the section agreed to?
To be frank, I do not agree to it.
This section is even worse because the clinical director is transferring people around the place to other clinical directors who may not know the case either and there is absolutely no consultation with the clinicians involved. What happens if the clinician involved considers it a bad idea to transfer the patient? The clinician may say Seán is doing very well and that he should stay where he is. He may also say there is a shortage of beds and that is the reason they are trying to transfer the patient. It may be for the patient's benefit that they should stay where they are. There is nothing in this section which says that the well being of the patient is in any way being considered.
Surely the well being of the patient is central to the whole thrust of the Bill. No matter what one says, a patient will be dealt with by different doctors over a period. In the psychiatric service there is somebody in overall control who has an overview. More than in any other service this is what happens. I do not see that there is a problem in this section.
I see a big problem. Someone could say there is a shortage of beds and decide to transfer patients down the country. While the position of the patient is supposed to be paramount, no thought for the clinical care of the patient is applied in this section. The transfer of pati ent is just transferring the person around the place like a piece of meat. It is dreadful. It is just transferring them from centre to centre without even saying there would be better care if they sent them to another centre. The patient is sent off if the clinical director decides to transfer them. We have already mentioned a shortage of facilities, a shortage of beds, etc. In a large centre where there may be 20 psychiatrists the person who has clinical care of the patient may not have seen the patient at all.
Subsection (1) provides that if the clinical director of a centre considers that a patient should be transferred to another centre because that centre can provide the patient with particular treatment which would be of benefit, then he or she shall make the necessary arrangements to have the patient transferred. There has to be a reason for transfer in the first place and this must be in the interest of the patient. The director would be the manager of the hospital in that instance and would have a number of other psychiatrists working with him.
I will have to leave it at this because I am obviously not making myself clear. The clinician in charge of the case should have some say in the transfer of the patient. The clinical director of a large unit cannot see all the patients. However, that clinical director is the one who will make the decision to transfer the patient. There is a great deal of confusion in this Bill about the independence of consultants in treating patients and it seems that one consultant can be replaced by another. For many years in the health service, we have aimed to have continuity of care for patients. There seems to be very little concern for that in this section.
My experience of the psychiatric service is that the clinical director does not wake up some morning and decide that a particular patient should be moved. In psychiatry, generally a consensus decision is reached, unlike any other branch of medicine especially on the surgical side where there is an individual decision. Senator Henry's fear would not be realised. In other areas it may happen but in psychiatry there is always consensus before patients are moved.
I will not go on. We are very clear about the patient's civil rights but the patient needs proper medical treatment. I agree with Senator Fitzpatrick that consensus decisions are made. Independent consultant psychiatrists are supposed to work independently and this Bill should have said the consultant psychiatrist had to be consulted before the clinical director transferred a patient. That would have been for the patient's benefit.
In many cases it would be a collective decision to transfer for the benefit of the patient. Patients are not transferred very often and there needs to be a good clinical reason for doing so. A clinical director will naturally consult with the original psychiatrist. There is nothing in the Bill that precludes that from happening.
There is nothing that precludes it, but there is nothing that says it has to happen. When people are consulted, they take clinical responsibility for patients and this is not being supported in this section of the Bill.
I move amendment No. 50:
In page 22, subsection (1), line 16, after "psychiatrist" to insert "who is not a spouse or relative of the person".
In the case of involuntary patients, why did the Minister decide the consultant psychiatrist could not be a spouse or relative? With voluntary patients, apparently the consultant psychiatrist can be. Is it not very foolish to have one group of patients treated one way and others treated another way? Why did he not stipulate that the consultant psychiatrist, as is the case throughout the rest of the Bill, should not be a spouse or relative? Why has it changed here?
An important safeguard in this Bill is that the consultant psychiatrist who makes the decision to involuntarily detain a person, thereby depriving them of their liberty, shall not be a spouse or a relative of the person. This is very important to ensure that the power to detain a person is not abused in any way. This amendment and other amendments proposed by Senator Henry require that other psychiatrists who are in contact with the involuntarily detained person be subject to the same safeguard and should not be related or married to a person concerned. These safeguards are not necessary in this case because the psychiatrist concerned is offering a second opinion and is not the treating psychiatrist.
If we start dealing with the consultant psychiatrists in one way, we would be wise to go on dealing with them the same way. It is much worse in section 25 where we deal with children. I call on the Minister to revisit that on Report Stage. It is extraordinarily unfair to give one group of patients what I would describe as a better protection than others. I said in an earlier part of the Bill that voluntary patients should be told that they can be detained for 24 hours or longer against their will. The word voluntary implies that someone can get out if they want to, but that is not the case. We are allowing for the possibility that a voluntary patient, who gets into a hospital and then finds he cannot get out, could in fact be related to the consultant psychiatrist. Even from the point of view of family relationships it is not a good idea.
Amendments Nos. 51 and 55 are related and may be discussed together, by agreement.
I move amendment No. 51:
In page 23, subsection (1)(b), line 3, after "approved centre" to insert "for children".
I have received the strongest representations from people who as children or teenagers were admitted to adult wards in psychiatric hospitals. Some of them told me that they were subjected to sexual abuse by other patients. In psychiatric units, various sleeping quarters open onto the same area and a woman in her twenties told me she was in the same ward as someone who later featured in the newspapers as a paedophile. We must make it absolutely illegal for that kind of situation to occur. It is outrageous.
We already have a problem with this section of the Bill. "Child" is defined in the Bill as up to age 18 years, whereas for admission to such psychiatric services as we have, the age is up to 16 years of age. It is not clear where children aged 16 to 18 will be put. From the tearful representations I have had about children being admitted to adult wards, it is absolutely essential to totally separate children from adults who are involuntarily admitted for psychiatric care. Unless the present practice is made illegal, we will not solve the problem. It will once again be a matter of "live horse and you'll get grass", as I have heard so many times in this House.
I agree totally with Senator Henry. In the Mid-Western Health Board area, there are constant complaints about adults and teenagers being put in the same ward. Quite apart from the paedophile aspect to which Senator Henry referred, there is a basic issue of compatibility. One group may want quietness, perhaps to read, and the other group of teenagers may be exuberant and may want to have loud music or other intrusive activity. The incompatibility is obvious. How could two such disparate groups be put together when they are suffering from problems which demand care, quietness and, perhaps, privacy? The argument is made that there is not enough funding to do otherwise. The issue is that it should be made illegal because that is the only way we will get action on the problem. I support Senator Henry on both of those amendments.
I agree with the sentiments expressed by the Senators as to the importance of placing children who are mentally disordered in age-appropriate facilities. That is the policy goal of the Government and we have been taking steps to ensure that adequate resources are invested in child and adolescent psychiatry to allow such places to be available in future. I have referred to the importance of having legislation which is realistic and which is sufficiently flexible to allow for patients to be treated when necessary. The appropriateness or otherwise of a particular centre for the individual child will be a matter for consideration by the court, taking into account the child's circumstances and the availability of suitable places. I do not believe we should restrict the court's discretion in this regard and therefore I cannot accept the amendment.
I cannot accept the explanation given by the Minister of State. There will not be a push to get approved centres for children unless we have appropriate legislation. We are not talking of vast numbers. Judge Peter Kelly has spoken about approved centres for children with other problems and we have seen the lengths to which he had to go. I cannot accept the Minister's explanation.
I am of exactly the same frame of mind as Senator Henry. This should be a priority. The Minister of State has indicated that decisions will be at the court's discretion. The lack of child psychiatry services is a concern. I am thinking particularly of young teenagers. Where physical disability is concerned, adults and teenagers are not put in one ward. Each group has its particular needs for independence or quietness or appropriate leisure activities. Failure to take account of that is simply flying in the face of reason. Is it a question of resources or the lack of resources? While I do not have the actual figures, I do not believe that there is a huge number of children involved. It should be treated as a priority issue. It should be made illegal to have such incompatible groups sharing services. Based on feedback from very concerned members of families of both groups – adults and children – many patients come out worse than they went into the institutions in question. The situation defies reason.
The Mental Health Bill, 1999, provides for the involuntary detention of persons for psychiatric care and treatment. It provides for different legal procedures to be followed with regard to the detention of adults and children under 18 years of age. It does not contain any provisions regarding the age for admission to psychiatric hospitals. Children aged between 16 and 18 are currently treated by the adult psychiatric services. However, the placement of children of this age in adult psychiatric facilities is increasingly seen as inappropriate. A working group has been established by my Department to review child and adolescent psychiatry and to finalise a plan for its future development. The group will also examine the service needs of persons between 16 and 18 years, in conjunction with experts from the field of adult psychiatry, to determine how these can best be addressed in the context of future service developments.
I can say a few words about recent developments on this, if Senators wish.
Connor, John.Cosgrave, Liam T.Henry, Mary.Jackman, Mary.McDonagh, Jarlath.
O'Toole, Joe.Ridge, Thérèse.Ross, Shane.Taylor-Quinn, Madeleine.
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, John.Dardis, John.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim.Glynn, Camillus.
Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.Ó Fearghail, Seán.Ormonde, Ann.Quill, Máirín.Walsh, Jim.
I move amendment No. 52:
In page 23, subsection (2), line 6, after "psychiatrist" to insert "who is not a relative of the child".
This is one of the most amazing subsections of this section with which I am not very happy. This is where the child can be examined by a consultant psychiatrist who is a relation and who could be the father, mother or uncle of the child or anyone who has had some connection with the child. What I found a very unsatisfactory explanation from the Minister was why the voluntary patient could be examined by a relation. This is very foolish.
Even in terms of medical ethics, it is considered very foolish to become involved in dealing with one's relations. In the case of a child – the most vulnerable person possible – about to be admitted as an involuntary patient, anyone who is a relation and a consultant psychiatrist can examine them and make the report. I know it will go before the courts but it has little to do with the logic of the Bill. I am beginning to become defeated by the logic of this Bill because involuntary patients have to have someone examine them and, indeed, in several other instances, but not in all, the consultant psychiatrist could not be the spouse or relative. In the case of voluntary patients, they can be, although I would have thought it wiser for them not to be. We are back to the involuntary patient where the person examining them can be a relative.
This amendment is not necessary. The psychiatrist in this instance is providing a report to the court but, ultimately, the decision on whether to detain the child is a decision for the court.
The court will be guided by the report of the psychiatrist. No other psychiatrist is involved. Later on I have tabled an amendment where the parents and child would be entitled to seek the opinion of a second psychiatrist. This is entirely unacceptable. It has to be changed. I will not call a vote on it because this is outrageous.
The Senator is of the opinion that the court will be totally influenced by the information given by a psychiatrist. That is not the position in any court. The court will look at all the situations before coming to a decision in such a case.
The court may not be totally influenced but the report of the psychiatrist will sway the court considerably. If the Minister could give me one good explanation why the person should be a relative, which could easily happen, I would understand it. Again, I have had complaints from people who were admitted as children about the undue influence they felt their parents had on their admission. This is absolutely dreadful.
The psychiatrist does not necessarily have to be a relative – it may happen in an odd situation. It does not state "should".
It does not state "should" but let us not go on arguing about it because I am only wasting my time and my breath. Whoever let that go through should be ashamed. I cannot understand that of all the civil libertarians in the Dáil, one of them did not notice this. It is the most pathetic thing ever.
Is amendment No. 52 being pressed?
It is not because I will revisit it on Report Stage.
I move amendment No. 53:
In page 23, subsection (4), line 19, after "Where" to insert "the authorised officer of".
At least earlier on I got something straightened about who was the authorised officer. Section 26(4) states: "Where a health board makes an application". In this case it could be a clerical officer. At least the Minister said earlier when we were talking about the making of regulations about the authorised officer and I suggested it should be someone with psychiatric qualifications that it would not be a clerical officer or an administrative person. That cheered me up a lot and I asked that the Minister press this when the regulations are being made. However, this safeguard is not here for the child. Once again we are talking about the child. This is very bad. The sections states: "Where a health board makes an application" but a health board is not a living, breathing person. I would have liked it to at least have stated "the authorised officer" so I would have known that someone would be specified to deal with these cases. This is far too vague.
Section 25, which deals with the involuntary admission of children, is modelled to a large extent on the Child Care Act, 1991, in its style and drafting. Under that Act, the health board is used as a generic term to encompass all officers of the health board. The use of this term is deliberate to allow the maximum flexibility for health board officials to take action where children's rights have to be protected. This amendment, which proposes a reference to the authorised officer of a health board, is inappropriate because no mention is made elsewhere in the section to an authorised officer. The term is used exclusively in section 9 in relation to the admission of adults.
I sincerely hope children are dealt with under the Child Care Act rather than this one because that Act allows for the physical and mental condition of children to be considered and for applications to be made on their behalf. The authorised officer is there for the adult but not for the child.
I move amendment No. 54:
In page 23, subsection (4), line 25, after "psychiatrist" to insert "who is not a relative of the child".
Why can the person in the position not be a relative of the child? The health board in this case could arrange for a child to be seen by a consultant psychiatrist and the child's auntie could say "Sure I know her very well, I'll give you a report." This subsection is too loose. It is foolish.
I do not propose to accept this amendment for the reasons I outlined on amendment No. 52.
I move amendment No. 56:
In page 23, between lines 41 and 42, to insert the following new subsection:
"(8) Before the admission of the child, the parents and child shall have the option of seeking the opinion of a second consultant psychiatrist, who is not a relative of the child, and shall be so informed in writing by the Court.".
The Minister of State said that the court will take into consideration more than a child psychiatrist's report. There is not much more there than that. If the health board applies for a child to be admitted the parents and the child are in an extraordinarily weak position and I would have thought that they should at least be allowed to consult another psychiatrist and should be told so in writing by the court.
It appears this amendment is unnecessary. Where the parents of a child object to the involuntary detention of their child, they have a right to be heard by the court as a matter of course and should have the option of seeking the opinion of a second consultant psychiatrist without the necessity for them to be so informed in writing by the court. I understand that in many of the cases where children require to be involuntarily detained the parents are either unwilling to participate in the process or cannot be found. Where the parents of a child consent to the child's admission an involuntary admission is not normally required. The option envisaged in this amendment is always available and it is not necessary to specify it in the legislation. Accordingly, I do not propose to accept the amendment.
In the case of a child with, say, anorexia nervosa, the psychiatric services and the health board may think the child should be admitted and that he or she is in real danger of death, but the parents could say "No, Lizzie is fine, she'll stay at home, she'll get better, she'll be all right". The parents could object in that case. They must have some rights before the court, given the rights parents are given in the Constitution. I wonder if it is constitutional to deal with children in this manner.
The child care legislation is much better and I hope children brought into hospital in such cases are brought in under it. There is a need to let parents know they can seek a second opinion in such circumstances. Given that this would be a most stressful time for the parents and the child, the least that could be done is that they should be given that information in writing.
The welfare of a child must be the primary concern of the court. That comes under the Child Care Act, 1991. Section 25 of that Act empowers a court to make a child a party to all or part of care proceedings and to appoint a solicitor to represent the child in any case where the court is satisfied that it is necessary in the interests of the child. Section 26 of that Act empowers a court to appoint a guardianad idem for a child in proceedings where the court is satisfied that this is necessary in the interests of a child. The child is being protected in this situation.
The courts generally act in the interests of the child, but the child may not want to go in and the parents may not want the child to go in. It would be a good idea if the parents could be told in writing that they can seek a second psychiatric report.
I move amendment No. 57:
In page 23, between lines 41 and 42, to insert the following new subsection:
"(9)A child aged between 16 and 18 years may be admitted to the approved centre concerned as a voluntary patient if he or she indicates a wish to be so admitted.".
A child aged between 16 and 18 could stress that he or she wants voluntary admission even though the parents are not in favour of him or her being admitted. I tabled this amendment to ensure a little more power is given to an older child in such circumstances.
This amendment appears to be based on section 23(1) of the Non-Fatal Offences Against the Persons Act, 1997, which provides that the consent of a child aged between 16 and 18 to surgical, medical or dental treatment is a valid consent. Legal advice available to my Department indicates that this provision should not be read as a diminution of the rights of the parents in respect of young people aged 16 or 17, rather its effect is only to provide a defence to civil and criminal liability for those who give medical treatment to a consenting person aged 16 or 17. The requirement for parental consent before treatment can be given to minors still stands. The advice available to my Department is that provision should not be made for the consent of a child aged 16 to 18 to voluntary admission, but that the consent of parents must be obtained. If the consent of the parents is not forthcoming, a High Court order is required for the child's involuntary detention. The inclusion of this amendment would not be appropriate and, therefore, I cannot accept it.
We have all been warned having regard to the Gillick case in England where it was found that a child aged 16 could give consent to treatment if it was shown the child was understanding. The Minister will remember this was a case where a child was prescribed a contraceptive pill and the mother sued because she said it should not have been given. This is a difficult area, but I hoped the Minister of State would have given a little more thought to it because the stigma of being brought in as an involuntary patient is not very good. I would have thought it would be preferable if a child could be admitted as a voluntary patient, if the child so wished, but I understand the problems with the legality of that and I will not press the amendment.
I move amendment No. 58:
In page 24, subsection (10), line 4, to delete "12" and substitute "6".
Twelve months is a very long time in the life of a child. I query the wisdom of allowing detention orders in the case of a child to be repeated for a year. A year to an adult is different from what it is to a child. I would definitely prefer that a detention period for a child could not be more than six months without review.
This amendment proposes that the detention of a child be reviewed every six months. Subsection (10) is modelled on similar sections dealing with the detention of adults. The involuntary detention of an adult is reviewed after 21 days, three months, six months and annually thereafter. The same format is used in this section in relation to children.
In other contexts Senators have argued strongly for the same rules to apply to children as they do to adults. In this case that is precisely what is in place in the Bill. I do not, therefore, propose to accept the amendment.
After what I said, that is a very poor answer. Anyone will recognise that in the life of a child a year is different from what it is to an adult. To say that because I have argued, for example, that the consultant psychiatrist should not be a relative of the child concerned means that I should accept whatever is right for the adult is right for the child is not acceptable. I ask the Minister of State to reconsider this matter before Report Stage.
I move amendment No. 59:
In page 26, between lines 19 and 20 to insert the following new subsection:
"(6)In deciding whether and when to discharge a patient under this section, the psychiatrist responsible for his or her care and treatment shall have regard to–
(a) the need to ensure that detention following involuntary admission continues only for so long as is reasonably necessary for the proper care and treatment of the patient, and
(b) that, having regard to the patient's mental disorder, he or she is not prematurely discharged without having received adequate care and treatment for that disorder.”.
What is proposed in this Bill would be good practice. This is important because there is nothing relating to community care in the Bill. We should try to look towards the future because continuity of care in the psychiatric services is very important. We must ensure that patients have facilities available to them. There are repeated admissions because sufficient attention has not been paid to facilities for people leaving hospital. Hostel facilities are appalling and are probably even worse than the hospital facilities. This aspect should be considered carefully.
I agree with the sentiments expressed. We spoke about community care and getting away from institutions but funding for community care always seems to be problematic. If a patient is prematurely discharged without having received adequate treatment for his or her disorder because of a difference of opinion, lack of beds space or whatever, it is extremely important that community support is available to that person in the context of proper psychiatric care in a holistic way.
Concern was expressed on Committee and Report Stages in the Dáil in regard to the discharge of patients, in particular to distinct but related issues. First, fear was expressed 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, that the patient would be detained under an involuntary detention order for longer than was absolutely necessary. In response to these concerns, the Minister tabled an amendment to the Bill on Report Stage. The provision in section 28(2) is designed to ensure that consultants will consider those two points before making an order to discharge a patient from involuntary detention. As the spirit of the proposed amendment is already covered in the Bill, I suggest the amendment is withdrawn.
I move amendment No. 60:
In page 26, line 25, to delete "detained." and substitute the following:
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.".
The amendment seeks to ensure that the person is in a fit state for discharge. I presume I will be told that it is good practice to do so. There are grave problems in regard to the continuity of service between hospitals and the community. It is worthwhile doing what we can to ensure the safety of patients.
The legal advice available to the Minister suggests the amendment is not appropriate to this Bill. The implication behind the amendment is that some patients who are legally classified as voluntary are not, in fact, in hospital of their own free will. I am advised 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 or she should be subject to an admission order. I acknowledge 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 particular issue is through the Mental Health Commission which has as one of its functions the promotion of high standards and good practice 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.
I move amendment No. 61:
In page 26, before section 31 but in Part 2, to insert the following new section:
"31.–(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 is a straightforward amendment to give the Inspector of Mental Health Services powers where he or she is satisfied aprima facie case exists. It is of enormous concern that a mentally impaired person should be abused, exploited or neglected or at risk of being so. In such a case the inspector should be in a position to initiate Circuit Court proceedings seeking the court's approval to place that person in the care of a relative, health board or voluntary agency. It would be a further help if the commission shall, within six months of its formation, publish guidelines so that the inspector could be assisted in this regard.
I understand the whole area of adult care order was problematic. Apparently the Minister envisaged in the White Paper six years ago that the order would be introduced. As was discussed earlier today, there was a need for an ongoing debate on the issue. If there was a debate for the past six years, what was the outcome? I am anxious to know what is the current situation in regard to the making of adult care orders which lead into this. That is why I will be pressing the amendment and I would like to hear the Minister's response.
In regard to chapter 8 of the new Mental Health Act, I wonder has the Bill before us taken account of this very important document. The adult care orders were considered very important by those working in the area of old age psychiatry, in particular, and it is most disturbing to see the whole situation totally ignored. I hope Senator Jackman's amendment, which seeks to address this issue, will be accepted.
In the White Paper published in 1995 it was 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 would be used primarily for persons with an intellectual disability. The Minister acknowledged during the Dáil debate on Second Stage that the provision of adult care orders was not being included in this Bill. He also made the point that the issue was not being overlooked or forgotten and that it would be given further consideration once this Bill was enacted.
There are a number of reasons it was decided not to provide for adult care orders in the new legislation. The primary focus of the legislation is to bring Irish mental health law 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. The second reason was that there is considerable debate among professional psychiatrists, psychiatric nurses and social workers as to how such orders could or should work. In Britain the experience of adult care orders has been very mixed. There are fears that where such orders empower the health board to impose compulsory treatment this results in patients avoiding contact with services and, therefore, becoming homeless. The care/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 the voluntary organisations are named in the court order.
The concept of compulsory treatment associated with adult care orders is repugnant to many. In Britain concern has been expressed by social workers and service users about the degree of medical power associated with such orders. There have been suggestions also that service providers may experience pressure to use such orders inappropriately. The care and protection of vulnerable people in the community are important. However, it is essential that any measures that are to be 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.
Further research on the experience of adult care orders in other jurisdictions and future consultation between Department officials and representatives of the psychiatric professions and service users bodies is required before proposals on this issue are to be brought forward.
I consider this of immense importance. I query the question of six years. Surely debate would not be going on for six years in relation to adult care orders. Is it not a priority area? Has it raised its head in relation to the sign ing of the White Paper in 1995? When can we expect a response from the various personnel involved in deciding the best way forward? When these issues are left lie they are not revisited and this is important in light of the amendment. Is there any progress?
As the Minister said in the Dáil, he wishes to revisit this issue at a later stage. We have gleaned a lot of information from how these orders have worked in other jurisdictions. We may come forward with our own modification of these adult care orders.
I accept that but in the context of what legislation will it be revisited at a later stage? We can revisit all we like but will the outcome of discussion be an amendment or further legislation?
It is envisaged that there will probably be a new health Act. This Act can also be revisited after 12 months by the Minister and there is an 18 month review by the commission. These issues can be examined at that stage.
Could we have a commitment that it will be revisited in 12 months? It is important. Some things are put off for another day, never to emerge again. We should have a strong commitment to revisit this serious amendment in relation to exploitation and the other issues I raised.
This will require further legislation and I am not in a position to give a definite commitment in regard to a stipulated period.
Maybe on Report Stage the Minister will have more specific information for us.
I move amendment No. 62:
In page 26, before section 31 but in Part 2, to insert the following new section:
"31.–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 is in the same nature as the last. It provides that within six months of the Act becoming law the Minister shall lay before the Oireachtas regulations similar to rules of court providing for dealing with elderly people who are mentally impaired for the sole purpose of protect ing the interests of such persons. Again it can be rescinded within 90 days of the regulations being published. When reading up on this I was shocked to discover that wardship legislation in Ireland was formed 125 years ago. It is in urgent need of reform. There was a commitment by the Minister, Deputy Martin, that the Department of Justice, Equality and Law Reform was preparing to update and modernise legislation. Has the Minister information concerning how this area can be brought into the 21st century?
I acknowledge the points made by the Senator regarding the importance of protecting the interests of elderly mentally infirm people. The principal mechanism for doing this at present is to apply for the person concerned to be made a ward of court. A ward of court is a person with assets in excess of £5,000 who does not have the mental capacity to manage his or her affairs and whose interests are looked after by the courts. The wardship legislation is contained in the Lunacy Regulations Ireland, 1871, as has been mentioned by the Senator. The reform of this Act is a matter for the Minister for Justice, Equality and Law Reform.
Another mechanism by which the interests of elderly people can be protected is by way of enduring power of attorney. An enduring power of attorney is a power of attorney which subject to safeguards continues in force after the person who granted the power becomes incapable of handling his or her affairs because of mental disorder. While he or she is still capable of making such a decision the person granting the power of attorney appoints a person to act, either generally or in a manner specified, on their behalf should they become mentally incapacitated. This procedure is particularly well suited to assisting people with progressive brain disease such as Alzheimer's disease or recurring mental illness to manage their affairs by a relative and simple procedure. Provision for the enduring power of attorney was made in the Powers of Attorney Act, 1996.
I acknowledge the points made by Senator Jackman on the interests of elderly people who do not fit the criteria to become wards of court. However, I do not believe that the Mental Health Bill is the appropriate statute within which to address this issue. As the amendment is outside the scope of the Bill as initiated I suggest that it be withdrawn.
While I accept that and understand the enduring power of attorney, something should be done about the reform of wards of court. This legislation is over 125 years old and I ask the Minister to convey to the Minister for Justice, Equality and Law Reform the need for this to be addressed.
I move amendment No. 63:
In page 27, subsection (3)(c), line 16, after “patients” to insert “which shall include advice and representation”.
This amendment provides that legal representation should be granted with the consent of the Minister for Finance and that a scheme for the granting by the commission of legal aid for patients should be set up. I am concerned that this legal aid may just be for representation on the day of the tribunal or the court. I suggest that it should be incumbent on whoever is providing legal aid to give advice also. That needs to be specified because at the moment finance for legal aid is very stretched. It is difficult on patients, particularly involuntary patients, to have to turn up at court or tribunals without receiving advice. I feel strongly that this is an important amendment although I realise that it will not even be considered.
I am informed that the term legal aid includes assigning to a person a legal representative. The legal representative's function is to provide both advice and representation for the patient. The clarification in this amendment is not required and I ask the Senator to withdraw it.
The funny thing is that the law reform committee of the Law Society said to me that it would be wiser to have "advice" put in and they are the people involved in legal aid. Is it not interesting that with lawyers we often get contradictory advice? The Minister got one bit of advice and I got another.
I move amendment No. 64.
In page 35, subsection (3)(a), line 1, after “psychiatrist” to insert “who is not a spouse or relative of the patient”.
This is another interesting amendment. Here we have the psychiatrist on the tribunal who will decide whether the patient should be detained as an involuntary patient and it does not matter whether he or she is the husband, wife, brother or sister of the patient. We do not specify as we did earlier with the person involved in the admission orders or with the clinician. What is the logic in deciding this? I cannot work it out. It is outrageous in the case of a child that the person can be a relative of the child. I cannot agree to this. The person on the tribunal, the consultant psychiatrist, should not be the spouse or relative of the person who is coming before the tribunal. This is all getting very tedious.
It would be good practice for a psychiatrist sitting on a tribunal not to participate in a review if the person concerned is related to them. I do not think it necessary to insert such a provision in legislation as the Mental Health Commission will oversee the tribunal's work. Having listened to Senator Henry's views in relation to this, I refer back to section 5(1)(c). I might come back to this issue on Report Stage to clarify it better.
The Minster of State is referring me back to section 5(1)(c). It is late and I will withdraw the amendment instead of pressing it, but this section is dreadful. I do not know whose notion it was to exclude “spouse or relative”, but it is quite shocking and contrary to civil liberties. It may be unethical but it should be unlawful too.
I move amendment No. 65:
In page 38, lines 1 to 3, to delete subsection (8) and substitute the following:
"(8) All those appearing before the tribunal shall be entitled to absolute privilege.".
This is always good news. Lawyers involved in everything have absolute privilege and are exempt from audit, but the rest of us humble mortals are not. It is important that everyone involved should have absolute privilege. I am sure the Minister will have some sort of reply for me, if he will forgive me for putting it like that, but this amendment should be revisited. It is frightfully unfair that some people, such as lawyers, have absolute privilege at tribunals, but doctors and patients do not.
Section 49(7) provides that a witness whose evidence has been, is being or is to be given before the tribunal in proceedings under this legislation shall be entitled to the same privilege and immunity as a witness in a court. Absolute privilege is a very high standard and does not normally apply to witnesses in court proceedings. I do not think, therefore, that it would be appropriate to apply absolute privilege to hearings of mental health tribunals. I understand that all those appearing before the tribunal shall be either witnesses or legal representatives. Subsections (7) and (8), respectively, provide for privilege in these cases. This amendment is unnecessary and I suggest it be withdrawn.
Which subsections do not make it necessary?
Subsections (7) and (8) of section 49 provide for privilege in these cases.
I will get my legal advisers to look at this.
I move amendment No. 66:
In page 38, subsection (9), line 5, after "private" to insert "except forbona fide members of the press and such other persons (if any) as the court may in its discretion permit to remain.”.
I thought carefully about this amendment as one naturally wants the proceedings of tribunals to be private. Equally, however, one wants tribunals to be responsible to society. This is a little like the situation regarding family courts, where naturally one does not want the circumstances of cases to be made public. Sometimes it is as well to have witnesses from outside the court. The tribunal can choose to have just one member of the press in attendance.
I am anxious that tribunals should not be too secluded. If it wants, the tribunal should be in a position to allow bona fide members of the press to attend, along with such other persons the court feels should enter. This is the position as regards family courts where, like tribunals, we sometimes do not understand the seriousness of cases. From time to time, we need to be reminded of what is taking place in courts.
This amendment proposes that bona fide members of the press may attend tribunal hearings in the same manner as they can attend court hearings. I do not think this is appropriate. Tribunals will be concerned with the personal and sensitive details of a person's mental disorder and the circumstances of their detention. All those admitted involuntarily will have their admission reviewed by a tribunal; it will not be a matter of choice for them. To allow members of the press to attend tribunals to hear details of disorders would be an unwarranted intrusion of privacy. It would be another matter if a person exercised his right to appeal in the full knowledge that the press may be in court. This amendment, while appropriate in the case of an appeal in a court, is not appropriate for mental health tribunals. Accordingly, I suggest that the Senator withdraws it.
I move amendment No. 67:
In page 39, subsection (1), line 1, after "writing" to insert "not later than 3 months after the end of the calendar year".
This amendment has been inspired by my colleague, Senator Quinn, who constantly reminds us of the need to put time limits on reports. I think time limits are worthwhile, which is why I tabled this amendment. There is a problem with the business of reporting to the commission as the chief executive officer seems to give a financial report and the inspector seems to produce a separate report. I do not see the twain meeting at all. By the time I reached this stage of the Bill when I was going through it, I was too exhausted to try to sort it out. Perhaps someone could tell me if financial affairs will be in the report to which my amendment refers. Will the reports of the inspector and the chief executive officer be joined together?
I was totally confused by the time I reached this part of the Bill and I was getting very tired. The one thing I think is important, which Senator Quinn constantly mentions, is that we make people report within a certain length of time so that we do not end up with historic documents. I think three months is long enough.
Reference has been made to delays in publishing the report of the Inspector of Mental Hospitals. Senators will also be aware that in recent years the report of the inspector has been available in the year following inspections. Last year, for the first time, the report was published in July and this year the report will be published in early summer again as I understand it is currently being finalised. I do not favour this amendment as it would impose severe restrictions on the Mental Health Commission and on the new Inspector of Mental Health Services as work is commenced. Good practice will ensure that the report will be made available as soon as possible in the year following that in which inspections took place. I am confident that the current practice will continue under the new regime and accordingly I cannot accept this amendment.
It is mid-June, not early summer, and a report has not yet been published. I wish the Minister of State would accept this amendment but I know he will not, so I withdraw it.
I move amendment No. 68:
In page 39, subsection (1), line 2, to delete "on –" and substitute "and to the Houses of the Oireachtas on –"
This is very odd as the Oireachtas is not going to receive the report as it did when it was prepared by the Inspector of Mental Hospitals. Is there some reason the Oireachtas will not receive a copy?
This section provides that the Inspector of Mental Health Services will submit an annual report to the Mental Health Commission. Section 42 provides that the commission, in turn, will incorporate the report of the inspector in its annual report to be laid before the Mini ster for Health and Children and laid before the Oireachtas. This is a more appropriate mechanism for reporting than the mechanism proposed in this amendment. I do not agree that the inspector should report directly to the Oireachtas as he or she will be employed by the Mental Health Commission who will be answerable to the Minister who, in turn, is answerable to the Oireachtas. I do not propose, therefore, to accept this amendment.
That seems a very sensible answer.
I move amendment No. 69:
In page 39, between lines 47 and 48, to insert the following new paragraph:
"(g)to remove a centre for 21 days from the register of approved centres if he or she thinks so fit.".
The reason I have proposed amendment No. 69 is that the workings of the commission seem to be quite slow. I would like to think that if the inspector found that a centre was overrun with rats, he could do something immediately because there is reference to the fact that the inspector must be sure that the fabric of a place is all right.
This amendment fails to appreciate the distinction between the functions of the Inspector of Mental Health Services on the one hand and the functions of the new Mental Health Commission on the other. The new Mental Health Commission, under Part 5 of this Bill, is responsible for the registration of approved centres and for their removal from the register if they fail to adhere to the standards and regulations required of them. The function of the Inspector of Mental Health Services is to inspect approved centres to ensure that they are in conformity with regulations and, if they are not, to report back to the Mental Health Commission. The Mental Health Commission will then take action as required.
I hope it takes action very quickly.
Amendment No. 70 is related to amendment No. 71 and they may, therefore, be discussed together.
I move amendment No. 70:
In page 41, paragraph (b), line 30, after “understand” to insert “and summarised in writing”.
Patients coming to the doctor often give the impression of understanding what they are told but in the long run it may turn out that they have not really followed what has been said. We are talking about ill people who have been involuntarily admitted to hospital. I would have thought it would be better not just to tell them what is happening but to give them a summary in writing that they could read to see if they really have a proper understanding of what is going on. The Minister says that this Bill is all about the better treatment of the involuntary patient. No one in this House is more aware of that than I am, but I would have thought it would be worthwhile to summarise in writing for the patient whatever treatment is proposed.
In regard to amendment No. 71, one of the real problems with psychotropic drugs, regardless of the great advances we have made in them, is that all too frequently they have very serious side effects. They may be addictive. They may have physical effects, some of which are extremely unfortunate. The Minister and I are old enough to remember barbiturates being brought in as magic. Senator Glynn probably remembers that too. Largactyl and even Prozac is worrying. I am not talking about patients being told about the prolongation of the QT interval on their ECGs. I am talking about them being told a particular drug might make them bright yellow in the face due to problems with their liver or that there is a possibility that they may develop a tremor, or that a drug is known to be addictive if there is prolonged treatment with it. We need to be extremely careful about this. Effects are one thing, but side effects are important as well. I would have thought we would be legally obliged to let people know the side effects of whatever medication they are prescribed.
It is very important that we ensure that any obligations placed on doctors by the Bill do not result in unnecessary paperwork or bureaucracy. It is anticipated that as a matter of course consultants will note the patient's consent in their medical notes. There is no need, therefore, for duplication of records in this regard.
With regard to the second amendment, the task of providing full information on the nature, purpose and likely effects of treatment would, of necessity, include full information on any potential side effects. That can be done by preparing leaflets that can be given to patients if required.
That is an extraordinary reply. First the Minister says he does not want to create unnecessary paperwork. Then in the rest of his reply he says consultants can give out leaflets, so there will be extra paperwork. Fairly general summaries of treatment could be given to people. That will not do. Will the Minister please look at this again because we are talking about sick people. I would have thought telling people the side effects of psychodrugs was very important. We deal later with psychosurgery and ECT, but we have not discussed polypharmacy and the interaction of drugs, nor have we discussed depomedication which could be very serious because once a patient is given depomedication there is no going back. This should be revisited on Report Stage.
As amendments Nos. 72, 74 and 75 form a composite proposal, they may be discussed together.
I move amendment No. 72:
In page 42, between lines 24 and 25, to insert the following subsection:
"(7) In this section ‘patient' includes a voluntary patient.".
This is a very good idea. However, as we have gone so far as to include good sections which have dramatically improved the Bill since we began, there is more we could do. Why should it not apply to voluntary patients? I am beginning to understand why people voted "No" in the referendum on the Nice treaty. It appears that unless we are driven to do things by the EU – it has come up several times on the Bill that we must get it through because of the EU convention – nothing will happen. Why can we not have an inspiration of our own and apply these conditions to voluntary patients?
The provisions of Part 4 of the Bill refer exclusively to involuntary patients and are necessitated by our obligations under international law to ensure that the human and civil rights of people who are deprived of their liberty are protected. A patient who is detained involuntarily may not be in a position to give fully informed consent to treatment and, on the other hand, because he or she is detained, may not be in a position to resist treatment. This is why it is important to ensure that safeguards are put in place. The same concerns do not apply in the case of voluntary patients. The Guidelines on Good Practice and Quality Assurance in Mental Health Services, published by the Department of Health and Children, state that the principles of mental health care delivery encompass the right to refusal of treatment and the necessity of informed consent. These principles of good practice would apply to the treatment of voluntary patients and it will be a function of the new Mental Health Commission to ensure that they are upheld. I cannot, therefore, accept the amendment.
These are serious issues. I would have thought it would be worthwhile including voluntary patients. It is also very important that we are leaving out depomedication. Will the Minister give me the reason it is being left out? Psychosurgery is hardly ever performed, but depomedication is. Is it because of paperwork? Would it not have been an extra protection for the patient? Polypharmacy is another problem. They are the main complaints I have received.
It will be one of the functions of the commission to make sure that best practice is being observed in psychiatry, especially in regard to involuntary detention. The voluntary patient has some chance of resisting and advising on their treatment. However, it is very important in the case of involuntary patients. I agree with the Deputy. However, it is one of the duties of the commission to ensure that best practice is adhered to in regard to this. We have learned over the years about the various drugs such as Largactyl and their side effects. That is the reason it is important the commission should function in this manner.
I move amendment No. 73:
In page 42, subsection (1)(b)(ii), line 37, after “psychiatrist” to insert “who is not a spouse or relative of the patient”.
Section 42(1)(b)(ii) provides that the programme of therapy should also be authorised, in a form specified by the Commission, by another consultant psychiatrist. This deals with ECT, yet the consultant psychiatrist could be a spouse or relative of the patient. Is this good practice?
This amendment concerns a psychiatrist who is providing a second opinion and I do not believe it is necessary for the reasons already outlined in relation to amendment No. 50. It is a second opinion and does not concern the person administering the treatment.
It is a second opinion but we are not so short of psychiatrists that we cannot ensure that patients are dealt with by people who are other than their spouses or relations. In cases of profound depression ECT has been found to be very useful but it is a controversial treatment and it will not help the development of family relations if the second opinion was that of the husband or wife of the patient who then criticised him or her for allowing the administration of ECT when it was made clear the patient would not have it again. This is very foolish and sloppy.
I move amendment No. 76:
In page 43, before section 62 but in Part 4 of the Bill, to insert the following new section:
"62.–A person guilty of an offence under this Part shall be liable on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.".
Why is there no penalty if psycho-surgery or ECT is performed on a person without getting any of the permissions one is supposed to? It does not seem to matter as no penalty is provided for. Similarly, no penalty is provided for if inappropriate treatment is administered to children. There is a good reason for providing for the imposition of penalties. If people perform lobotomies without adhering to the regulations some kind of penalty should be imposed to discourage repeat behaviour.
There are no provisions for penalties under this Part of the Bill. The adherence or otherwise of hospitals and consultants to the provisions of this legislation will be subject to the supervision and oversight of the Inspector of Mental Health Services and the Mental Health Commission. Consultant psychiatrists are also subject to guidelines issued by the relevant bodies and all medical practitioners are subject to the fitness to practice powers of the Medical Council. There are sufficient safeguards in this Bill and in other areas of law to ensure that psychiatrists will adhere to these provisions. I do not see a requirement at present to impose any penalties but if, following a review of the Act envisaged by section 54, it is discovered that these provisions are being ignored by the medical profession, the case for imposing penalties could be revisited.
I ask the Minister of State to review this aspect before Report Stage. This is one of the most serious sections on treatment, yet we are to rely on somebody being reported to the Medical Council or some such. That should not be tolerated.
I move amendment No. 77:
In page 44, subsection (5)(b)(ii), line 43, to delete “Part” and substitute “Act or under the Health (Nursing Homes) Act, 1990.”.
It is right that a person who has been convicted under part of this Act should not be allowed run an approved centre but what if they were convicted under the Health (Nursing Homes) Act or similar legislation? Surely that would make them unsuitable? It is too narrow to confine exclusion to convictions under this legislation.
This amendment proposes to extend the range of convictions which would render registered proprietors liable to have their names removed from the register of approved centres. In this regard it is important to remember that in the field of mental health services, the vast majority of registered proprietors will be health boards. Therefore, the Health (Nursing Homes) Act, 1990, is not appropriate since health boards cannot be prosecuted under that Act. Similarly, health boards would not be liable to be prosecuted in relation to other offences under this Act as the offences relate to decisions of individual doctors in relation to involuntary patients. Accordingly, this amendment is inappropriate and unnecessary.
Private institutions are also covered by this legislation. We know only too well that a considerable number of patients, especially elderly patients, will end up in institutions covered by this legislation. It is a serious matter to be prosecuted under the Health (Nursing Homes) Act and if people are prosecuted under it surely they are unsuitable to be running places where there are involuntarily detained patients. However, if the Department is happy with that who am I to argue?
I move amendment No. 78:
In page 48, subsection (2)(b), line 21, after “suitability” to insert “and qualifications”.
The purpose of section 48 is to ensure proper standards. Subsection (2)(b) will “prescribe requirements as to the staffing including requirements as to the suitability of members of staff of centres”. Would it not be a good idea if the suitability of qualifications was also taken into account? At all times there appears to be a lack of concern about qualifications in psychiatry. I know we are short staffed, etc., but it would be as well to ensure that a psychiatric nurse should be on the premises at all times. Something like that at least would be useful. The regulations may have to provide for that. We all hope, as Senator Glynn remarked, that increased recruitment will improve staffing in the psychiatric institutions. It is not enough, however important, that a nurse should show a kind face to the patient. Given the medication that is dispensed in these institutions it would be a good idea to specify that those concerned should be qualified.
I agree with the Senator's concerns that staff serving in approved centres should be suitably qualified. She mentioned staff shortages, etc., but I am advised that the term "suitability" in this section encompasses matters such as appropriate qualifications. In the present context I must reluctantly decline to accept the amendment.
I do not care how short of staff we are. We cannot have institutions being run involving the dispensing of medication where there are not suitably qualified staff.
The regulations will take care of that and will stipulate the qualifications required. However, there must be duly qualified persons involved if medication is to be dispensed.
Is that provided for in the Bill?
That pertains at present and there will be no change in it. The purpose of the Bill is to improve the situation with regard to mental health. It is not a regressive measure so there is no problem in that regard.
It is not a good idea, but I will not press the amendment.
I move amendment No. 80:
In page 48, between lines 31 and 32, to insert the following new paragraph:
"(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,”.
One would hope in terms of best practice that a clinical diagnosis would be made prior to the administration of medicines and that measures would be taken to avoid the over-prescription of medicines. The Minister will be aware that many of us have been approached by patients and their relatives regarding what they felt was over-medication and polypharmacy. This is the background to the amendment.
The amendment proposes that regulations should be made to prevent the over-prescription of medications or their prescription for improper purposes. I am advised that there is no precedent for such detailed intervention in any area of medicine by means of regulations or otherwise. It would be difficult to define improper purposes or over-prescription where medicines are concerned.
Safeguards in this regard are already in place through the professional qualifications and standards set down by the regulatory bodies of the various professions such as the Medical Council of Ireland, An Bord Altranais and the Pharmaceutical Society of Ireland. Doctors, nurses and pharmacists have their respective roles in the interest of treating and protecting the patients under their care. They work together to ensure the optimum outcome for their patients. Furthermore, I am advised by the Inspector of Mental Hospitals that accurate, clinical diagnosis is a complex process and it is only arrived at after a period of observation and the taking into account of historical information from the patient or third party sources.
Persons presenting to acute in-patient care, particularly those coming to care for the first time, do so because of symptoms which are subjectively very upsetting or socially disruptive. Such symptoms include severe depression or hallucinatory experiences, both of which may arise from a number of different clinical entities whose diagnosis may take some time to become evident. To withhold medication or other appropriate treatment until such a diagnosis is made, as suggested in the amendment, would be neither clinically nor ethically justifiable. Therefore, I cannot accept the amendment.
I move amendment No. 81:
In page 48, between lines 39 and 40, to insert the following new subsection:
"(3) Without prejudice to the generality of subsections (1) and (2) regulations under this section shall ensure that children, adults, the elderly and adults who are severely disturbed are provided with separate and appropriate accommodation.”.
We dealt with this aspect earlier. Senator Jackman and I believe that children, adults, the elderly and those who are severely disruptive should have separate accommodation. While Senator Glynn cannot say it, I am sure he would give a sympathetic response, particularly to patients who are severely disruptive. It is difficult to run a psychiatric institution when there is amélange of patients. It would be wiser to insist in the legislation that there must be separate accommodation.
I support the amendment. This aspect has arisen throughout the debate and it is an essential element. Perhaps the Minister will respond to it on Report Stage and give a firm time commitment in the context of when it will be addressed.
The provision of accommodation which is appropriate to patients who use it is a function of the service providers. Under the terms of the Bill, they will be subject to regulation and regular inspection by the Inspector of Mental Health Services. The reports of the inspections will be sent to the commission and, ultimately, to the Minister and laid before the Oireachtas. Provision for funding to improve facilities or to provide them where they are not available is a matter for the Minister, the Government of the day and the Oireachtas. Accordingly, I do not intend to accept the amendment.
I move amendment No. 82:
In page 50, line 13, after "trial" to insert "unless it is deemed by the consultant psychiatrist in charge of the patient to be of therapeutic benefit to the patient and consent is given by the patient's next-of-kin.".
This amendment was prompted by my informants on the Law Society's law reform committee. I understand why the section is framed in such a way, but the purpose of the amendment is to prevent patients being put on major clinical trials by pharmaceutical companies for something that has nothing to do with their condition. However, at the same time, some people may have refractory conditions, such as profound depression, who might benefit from a new drug, but the Bill does not allow it to be tried on patients.
The Council of Europe recommendations state that clinical trials of products or therapies not having a psychotherapeutic purpose on detained mental patients should be forbidden. However, it does not state that they should be forbidden if they think they are for therapeutic purposes and may benefit the patient. In this day of evidence based medicine, we cannot simply say we think, for example, that Prozac is making a patient a little better. We must be able to compare what it is doing. In trying to protect the patient under this section, we may be inadvertently disadvantaging him or her.
Another problem is that one would be unable to run a clinical trial which involved, for example, the administration of an anti-depressant with cognitive psychotherapy in comparison to cognitive psychotherapy without the use of an anti-depressant although it may be of great clinical benefit to the patient. As I pointed out on Second Stage, my secretary, Enda Dowling, brought an article to my attention about the use of fish oils in the treatment of schizophrenia. The University of Sheffield carried out a survey which showed a 25% improvement among those given fish oils compared to a placebo. Nobody would agree that involuntarily admitted patients should be deprived of fish oils if they might be to their benefit.
I ask the Minister to reconsider this matter. I understand why the section is included and I applaud the reasons for it. We do not want people to be used against their will. However, at the same time, we do not want to inadvertently disadvantage patients more than any other members of the community. Their illness may be so profound that we may not be in a position to compare other groups who are not involuntary patients. As Senator Glynn and the Minister will be aware, some of these patients are very seriously ill and everything possible should be done to help alleviate their conditions.
While I appreciate Senator Henry's concern about medical research, the public misgivings about the conduct of clinical trials in psychiatric hospitals are such that this is the most appropriate provision to insert in the Bill at this time. As has been stated, only approximately 10% of patients in psychiatric hospitals are involuntarily detained. The remaining 90% will be available to participate in clinical trials subject to the provisions of the Control of Clinical Trials Act. I have great sympathy with the Senator's position, but we must be open and transparent. Many people are worried about patients who are involuntarily detained with regard to clinical trials.
I move amendment No. 83:
In page 51, subsection (2), line 42, to delete "12 months" and substitute "3 years unless the person was a child at the time of the offence".
How would this provision stand up in view of the Sophia McColgan case? In that case, as she was a child and under the duress of her father who sexually abused her, a considerable length of time had elapsed after the offences had occurred. However, she was allowed to take a case. Surely the same should happen with people who have been involuntarily committed. Twelve months is very short and it should be three years for an adult and if the person was a child at the time of the offence, it should be three years after they reached adulthood.
This amendment appears to propose that summary proceedings for an offence committed under this legislation may be instituted within three years of the date of the offence. The 12 months time frame which is included in this section is the norm for summary offences. I see no reason for changing it in this particular provision. The prosecution generally is by the commissionversus proprietors.
I see quite a good few reasons for changing it. Of course it is the norm – if you are a sane, sensible person out in the world. If you have been an involuntary patient within an institution, that may not be so. If you had been a child at the time, that will not be so.
It is the commission in this instance that will be taking the prosecution against proprietors.