Vol. 167 No. 4
Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded.
Amendment No. 1 is in the name of Senators Henry and O'Toole. Amendment No. 2 is an alternative and the two amendments may be discussed together, by agreement.
I move amendment No. 1:
In page 8, to delete lines 6 and 7, and substitute the following:
"‘consultant psychiatrist' means a person who is eligible for inclusion on the psychiatry section of the Specialist Register of the Medical Council of Ireland;"
This matter was discussed at some length on Committee Stage, as the Minister of State at the Department of Health and Children, Deputy Moffatt, will recall. It involves the section of the Bill which defines what a consultant psychiatrist is. In the Bill, a consultant psychiatrist is one who is employed by a health board or an approved centre. This begs the question as to how such bodies would make a distinction. In the interests of the patient, professionalism and the system, it is better that a consultant psychiatrist is eligible for inclusion on the psychiatry section of the specialist register of the Medical Council of Ireland. Having been a member of that august profession, the Minister will be well aware that the Medical Council of Ireland is governed by law. It is required to ensure under law that people are adequately qualified.
The amendment attempts to ensure that those employed as consultant psychiatrists have the full recognition of the Medical Council of Ireland. I notice that the Minister has also put down amendment No. 2 to insert the words "or a person whose name is entered on the division of psychiatry or the division of child and adolescent psychiatry of the Register of Medical Specialists maintained by the Medical Council in Ireland." I recognise that is going halfway towards what we are trying to achieve.
I would be happier with amendment No. 1 as it takes a very clear position. Amendment No. 2 gives an additional choice which can lead to certain inferences being taken. However, I recognise that it is significant progress and perhaps the Minister is suggesting that his amendment will meet the needs of amendment No. 1. I look forward to hearing his views on that.
I second amendment No. 1 proposed by Senators Henry and O'Toole. The amendment is specific that the term "consultant psychiatrist" means a person who is eligible for inclusion on the psychiatry section of the specialist register of the Medical Council of Ireland. The Minister listened to Members during the very long period of discussion and debate on various amendments on Committee Stage. Senator Henry was very strong on this amendment. She wanted a very specific definition. Perhaps the Minister will meet her and Senator O'Toole's definition.
Concern was expressed during the Committee Stage debate in this House, particularly by Senators Henry and Jackman, about the definition of consultant psychiatrist. I have taken on board these concerns, particularly in relation to the narrowness of the amendment in the Bill as initiated. I share Senators' concerns that the definition should be as broad as possible to ensure that consultant psychiatrists who may not be employed by health boards or approved centres, but who would have the appropriate qualifications, could serve on mental health tribunals or provide second opinions or independent opinions under the provisions of this Bill.
The Government amendment refers to a person whose name is entered on the division of psychiatry or the division of child or adolescent psychiatry of the register of medical specialists maintained by the Medical Council of Ireland. This is a broader definition than that in the amendment put down by Senators Henry and O'Toole, but the principle is the same. I hope the Government amendment can be accepted.
I welcome the Minister's movement in the direction of amendment No. 1. I see this as a generous and significant move to meet the points put forward. It still leaves some doubt if one does not completely trust the health board or the approved centre in question, but it would be grossly unfair on our part to do that. While there may be a slight hint of an escape route, the Minister has come a long way to meeting our concerns. I am grateful for that and know that Senator Henry feels the same. This significantly improves the Bill and I am prepared to withdraw amendment No. 1 on behalf of Senator Henry and myself in support of amendment No. 2.
Amendment No. 3 proposed by Senator Jackman is out of order. It was negatived on Committee Stage.
I was informed of that this morning.
Amendment No. 4 is a Government amendment. Amendment No. 5 is an alternative and they may be taken together.
I understand that concerns were expressed by Senators on all sides of the House about this section of the Bill and in particular the terms "personality disorder" and "social deviance." The question of whether a person is suffering from a personality disorder or is socially deviant is a difficult one and it would be extremely difficult for any two doctors to agree on definitions of these terms. However, in response to the concerns expressed, it would not be unreasonable to require the Mental Health Commission to issue guidelines to practitioners on the interpretation of this section. The amendment I have tabled provides for this. It also allows the commission to renew its guidelines from time to time as most people acknowledge that the interpretation of these terms are liable to change over time. I hope this amendment can be accepted.
The Minister has gone a long way on this matter. There was considerable discussion on Committee Stage on definitions of personality disorder and social deviance. As the Minister has said, the nature of Irish society is such that what was considered social deviance in the past may not be so considered today. The more difficult matter with which to deal is that of personality disorders and a clinician's definition would be required in this regard.
The thrust of the amendment in my name is that the commission should, within six months of its appointment, publish comprehensive guidelines, while the Government amendment proposes that they be issued from time to time. I accept the latter in the spirit in which it was drafted. It is as good as can be achieved in this complex area.
I move amendment No. 6:
In page 14, line 18, after "centre" to insert "who is not a spouse or relative of the patient".
This amendment is designed to ensure that, for various reasons, advantage cannot be taken of somebody. We believe, therefore, that the individual responsible for a patient's removal shall not be the spouse or a relative of that patient. The reasons for this are obvious and we argued about them ad nauseam on Committee Stage. I am disappointed the Minister of State does not appear to have responded to our concerns in respect of this matter. However, I hope he will accept the amendment.
I second the amendment and I agree with Senator O'Toole's comments. Senator Henry was very definite in her view about wanting uniformity in the Bill and she wanted specific provision made for this matter. However, there has been no response from the Minister of State. The aim behind it is self-explanatory and requires that the term "who is not a spouse or relative of the patient" be included in the Bill. I hope the Minister of State will respond positively.
I accept the principle that a consultant psychiatrist who has a direct role in deciding whether a patient should be involuntarily detained should not be a spouse or relative of the patient. In that regard, I am prepared to accept a number of later amendments in the names of Senators Henry, Jackman and O'Toole. However, this amendment refers to the clinical director of the approved centre whose only function in this section is to make arrangements for the removal of a patient to hospital. In these circumstances I do not believe the amendment is necessary.
I regret that fact. However, I accept the Minister of State's indication that he will accept later amendments. In that context, I will withdraw the amendment.
I move amendment No. 7:
In page 15, line 3, after "order" to insert "and inform the medical practitioner who made the application and the applicants immediately".
We had a long discussion on this matter on Committee Stage. The main concern here is the stage at which a local medical practitioner will become aware of these developments. As far as I recall, the Minister of State accepted the importance of the need for this flow of information. I am not sure if he is open to accepting the amendment, but it makes a great deal of sense and confers due recognition on medical practitioners who initiate the process to make an admission order. I urge the Minister of State to accept the amendment.
I second the amendment. It would be practical and extremely simple to immediately inform a medical practitioner who makes an application and the applicants of the decision not to make an order. I do not know why the Minister of State would not be in a position to accept the amendment.
I have some sympathy with the concerns of Senators Henry, O'Toole and Jackman in this regard. It would be a good practice for a consultant psychiatrist who was proposing to discharge a patients to inform the general practitioner, the family and the relatives of that person as soon as possible. However, I do not believe it is necessary to put such provision in the legislation. The new Mental Health Commission, when established, will issue guidelines to all those concerned with implementing the provisions of the Bill. It is expected that issues such as this will be dealt with in that context and, therefore, I do not propose to accept the amendment.
Considering his background, it is no wonder the Minister of State has sympathy with us. If this matter had been brought to his attention somewhat earlier, we might have seen a change in the Bill. I have no doubt that he and his colleagues would agree that the route outlined in the amendment is the correct one to take. However, there may be technical reasons the matter cannot be dealt with at this point. I will withdraw the amendment in the interests of making progress.
Amendments Nos. 8, 23 and 25 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 8:
In page 15, line 4, after "practitioner" to insert "with at least 2 years experience in psychiatry".
The section to which this amendment relates involves the protection of the interests of professionals and patients. The amendment proposes to insert the phrase "with at least 2 years experience in psychiatry" so that section 14(2) will read "A consultant psychiatrist, a medical practitioner with at least 2 years experience in psychiatry". This will ensure that patients receive proper care and that people in charge of that care will be properly qualified and experienced. We submit that stipulating that the relevant persons must have two years experience is not a major imposition and will provide all concerned with a sense of protection.
I second the amendment. On Committee Stage, Senator Henry was adamant that the professionals involved should have adequate experience. Psychiatry is a difficult and complex area and there is nothing untoward in requesting that the relevant professionals should have at least two years experience. We discussed on many occasions the complexities attaching to the involuntary detention of patients. A person who has just completed his or her university studies and is new to dealing with this complex area may not be as au fait as necessary with the practical aspects of the matters to which I refer and would lack the relevant experience. It is reasonable to request that the relevant professionals have two years experience.
These amendments propose that the registered medical practitioner who will have power to detain a patient should have at least two years experience in psychiatry. I do not propose to accept them. In the first instance, the registered medical practitioner will be fully qualified, as such, will have completed his or her internship and will be fully registered. He or she will, therefore, be well capable of taking the decisions required of them under the Bill. In addition, these provisions merely enable the doctor concerned to detain the patient for a period of 24 hours until a consultant psychiatrist is available to examine him or her. It is entirely appropriate that a decision such as this could be made by a qualified junior doctor. The crucial decision as to whether the person should be deprived of his or her liberty by way of an involuntary admission order is reserved for the consultant psychiatrist alone. This is fully in keeping with the recommendations of the Inspector of Mental Hospitals and, therefore, I do not propose to accept this amendment.
I regret the Minister of State cannot accept the amendment because it would be in everyone's interests to do so. However, having listened to his argument, I do not intend to press the amendment.
Amendments Nos. 24 and 26 are cognate on amendment No. 9 and, therefore, the three amendments may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 15, line 4, after "registered" to insert "psychiatric".
This amendment is designed to ensure that the registered nurse on the staff of the approved centre shall be a registered psychiatric nurse. That would be a normal management requirement and it should find general support among those who have examined the provisions of the Bill, particularly members of the medical profession, including nurses. Is it not practical to suggest that a registered nurse working in an approved centre should be a registered psychiatric nurse? The amendment has been tabled with the intention of ensuring that this will be the case.
I second the amendment, which is similar to amendment No. 8. All we sought in that amendment was the expertise of a psychiatric nurse. The inclusion of a registered psychiatric nurse would enhance the section and I hope the Minister of State goes some way towards accepting what is a practical amendment.
Senators will be aware that health services in general are experiencing a severe shortage of nursing staff. This shortage is especially acute in psychiatric services in Dublin. I am concerned that the amendment, which restricts the provisions of the Bill to psychiatric nurses, would inhibit the ability of the services to respond to the shortage of nursing staff by employing general nurses in psychiatric hospitals. I understand some psychiatric hospitals already include both general and psychiatric nurses in their staff. Many psychiatric hospitals also employ nurses specialising in intellectual disability. It would be unfortunate if a situation were to arise in a hospital ward where it was required to detain a patient and that, because a registered psychiatric nurse was not available, the patient could not be detained. This section is designed to ensure maximum flexibility on the part of hospital staff to take action when required. I remind Senators that the power granted to the nurse is merely the power to hold the patient until a consultant psychiatrist becomes available. Accordingly, I do not propose to accept the amendments.
I accept the validity of the Minister of State's argument. I see the point in terms of the flexibility which would be required in hospitals. I withdraw the amendment.
Amendments Nos. 10, 11 and 12 form a composite proposal and may be discussed together.
I move amendment No. 10:
In page 15, line 19, to delete "21" and substitute "14".
The Minister in the other House reduced the number of days before an admission order would be reviewed from 28 to 21. There was considerable debate on reducing the period to 14 days and it was said that it might not be practical in terms of a person's treatment because psychiatry is a complex area. I am responding to a request from Schizophrenia Ireland which sought a seven day period. One day's unnecessary detention is too long. Given that the Minister said he could not reduce the number of days from 28 and then conceded to 21, I hope the Minister of State might see fit to reduce the period for which the admission order for the patient concerned would remain in force to 14 days. This would mean psychiatrists would not allow a patient's detention period to continue for too long before there would be a review of his or her progress. I hope the Minister of State is in a position to respond to this and reduce the period further.
As there is no seconder, the amendment lapses.
I move amendment No. 11:
In page 15, lines 24 and 25, to delete "a further period not exceeding 3 months" and substitute "periods of 14 days up to a maximum of 6 months in total".
Is there a seconder?
Yes. I second the amendment.
The Minister of State to reply.
I thought this had been taken with amendments Nos. 10 and 12.
Yes, they form a composite proposal, but amendment No. 10 lapsed.
The question of how long a person should be involuntarily detained before his or her case is reviewed has been one of the contentious issues in the Bill. The 28 day timescale for initial detention envisaged in the Bill came in for some criticism on Committee Stage in the other House. I listened carefully to all arguments and appreciate the concerns various interests have about the length of time it will take to complete a person's review. However, I also have a duty to ensure whatever legislation is enacted is realistic and can be implemented.
The logistical implications of the review process proposed under the Bill are enormous. There are approximately 2,400 involuntary admissions to psychiatric hospitals and units each year. Each one of these will have a review process initiated in respect of it. The Department has estimated that approximately 2,000 completed reviews per year will be required under the provisions of the Bill. Having reviewed the issue comprehensively and bearing in mind the concerns expressed about civil liberties and also the administrative implications, I have come to the conclusion that 21 days is the absolute minimum that would be required to guarantee a completed review within the statutory timescale for every person involuntarily admitted as a psychiatric patient to a hospital. A ministerial amendment to reduce the timescale for the admission order for the completion of a review from 28 to 21 days was accepted on Report Stage in the other House. Senator Jackman's amendments requiring a renewal order to be reviewed every 14 days are not acceptable on the logistical grounds referred to.
I agree it would be good practice for the cases of involuntarily admitted patients to be reviewed regularly by their consultants, and it will be a function of the new Mental Health Commission through the work of the inspector to ensure good practice is adhered to. If, once the system is up and running, it is found the volume of cases is lower than anticipated or that the administrative process is quicker and more efficient than anticipated, I am fully prepared to revisit the issue of the timescale and change the legislation if necessary. This is provided for in section 42 which requires the commission to review the operation of this Part of the Bill within 18 months of its commencement and submit a report in writing to the Minister on the operation of the process together with any findings, conclusions or recommendations it considers appropriate. I envisage the report will include any recommendations necessary for reducing further the 21 day timescale. Therefore, I do not propose to accept the amendments.
I am disappointed. I would have been less so had I been given a reason other than a logistical one. The Minister of State will have heard from the debate on this in the other House that we are disappointed sufficient funds will not be made available to ensure the workability of the Bill. That is what is at the bottom of this.
I would have had sympathy with the Minister of State's decision not to accept the amendments had he cited the case of a person whose condition was so complex that 14 days would be too short a period in which to review his or her case. However he did not refer to that, rather to the cost of implementing the Bill and the logistical difficulty of implementing the 14 day period for the 2,400 people admitted involuntarily each year to a psychiatric institution.
That is the reason we are concerned about the mental health area. Despite the funding going to the health service, people raise the issue of funding repeatedly. However, that is only for physical illness. It is worse where mental illness is concerned. I am disappointed a person would be detained for longer than 14 days and up to 21 not because of the complexity of his or her treatment but because funding is not available to implement the Bill.
As the Minister of State does not accept the thrust of the amendment, I hope this will be reviewed by the inspector of mental hospitals and that he will press for the funding to implement the Bill correctly. Reducing the period from 28 days to 21 but not to 14 shows logistical concerns rather than concern for the patient detained. As I said, one day's unnecessary detention is too much. To subject a person to more than that because of lack of funding to implement the Bill is shocking and disappointing.
I take on board what the Senator said but the decision was taken not because of monetary issues but because of logistical ones and the amount of work required. The Senator's amendment requires a renewal to be reviewed every 14 days. There is no way the psychiatric system could be reviewed every 14 days. We already have a review every 21 days, three months, six months and one year. It would be an enormous task to review each case every 14 days.
As was said on Committee Stage, it often takes time in psychiatric cases to come to a definitive diagnosis. The patient must be observed for some time because diagnosis may not be readily apparent. These are some of the reasons we are sticking to the 21 day period.
I am concerned about the individual.
I move amendment No. 12:
In page 15, line 28, to delete "a period not exceeding 6 months" and substitute "periods of 14 days up to a maximum of 6 months in total".
Amendment Nos. 13 to 15, inclusive, 17, 42 and 47 are related and may be discussed together.
I move amendment No. 13:
In page 15, line 44 to delete "patient." and substitute "patient, and
(c) and in the Irish language where Irish is the language of communication of the patient.”.
I went into great detail on Committee Stage in regard to the importance of people having their rights respected, particularly those living in Gaeltacht areas.
An rud a chuireann isteach ormsa níos mó ná rudaí eile ná daoine a rugadh agus a tógadh tré Ghaeilge agus atá anois in ospidéil i gcás mar seo agus gan éinne ann chun comhairle nó tacaíocht a thabhairt dóibh tré mheán na Gaeilge.
Cuireann sé seo isteach go mór ar chearta sibhialta an duine agus ní cóir dúinn cur suas leis. Níl sé féaráilte in aon tslí. Nuair atá siad in áit mar seo is stróinséirí iad san ospidéal. Tá, b'fhéidir, mearbhall chinn orthu. B'fhéidir go bhfuil siad corraithe go mór agus gan a bheith in ann a thuiscint go soiléir cad tá ag titim amach. Dá bhrí sin, ba chóir go mbeadh tacaíocht agus comhairle ann dóibh in a dteanga féin.
It does not seem too much to suggest that someone who is brought from, for instance, ceartlár na Gaeltachta to a mental institution might look for support in the Irish language. In these situations, even if people speak the English language, they may wish to revert to the language of the cradle. Níl sé féaráilte nach bhfuil an deis sin acu agus an rud a chuireann isteach orm níos mó ná rud eile sa chás seo ná go bhfuilimid ag iarraidh ceartanna a bhaint amach do dhaoine atá ag teacht isteach mar dhídeanaithe sa tír.
It is only right that there is a recognition of the rights of these people. While recognising and welcoming the moves in making support available in their own language to immigrants, refugees and asylum seekers coming to this country, it does not seem unreasonable to ask that people from the Gaeltacht should receive the same support. Caithfimid cuimhneamh go bhfuil cás faoi leith déanta sa Bhunreacht ar son daoine a bhfuil an Ghaeilge ó dhúchas acu. Dá bhrí sin ba chóir go mbeadh an rud céanna sa reachtaíocht.
Mar a dúirt mé ag céim an choiste, tá daoine i gceartlár dáilcheantar an Aire féin, mar a bhí ar scoil liomsa, daoine gan Bearla ar a dtoil acu. Seans go bhfuil an Gaeilge mar theanga dhúchas acu agus dá bhrí sin ba chóir dúinn gach seans a thabhairt dóibh tacaíocht a fháil tré mheán na Gaeilge.
I do not believe this is too much to ask. The same argument can be made on amendments Nos. 14, 15, 17, 42 and 47. I do not believe anyone can contradict the points I have made, which will be appreciated. I have said time and again that one of the great problems with Irish language policy is that it always seems to focus on people from outside the Gaeltacht areas, rather than supporting those who use the language on a daily basis as part of their lives.
I speak as someone who spends most of my life fighting with Irish language organisations as a result of some of the views they put forward. I have discussed the issue with a number of Irish language organisations and I have rarely felt so ad idem with them on any issue. Táimid ag díriú anseo ar chearta sibhialta faoi leith sa chás seo. The right to do one's business through Irish is very important. Therefore, I sincerely ask the Minister of State to accept the amendment.
Aontaím leis an Seanadóir. I second and support the amendments. We must consider the vulnerability of, say, a native speaker who may not able to communicate, or who may find it very difficult to communicate. It is impera tive that vulnerable people in such stressful situations be given the opportunity to communicate with the personnel with whom they are dealing. We spoke on Committee Stage about the various ethnic groups in this country. I shudder to think how they are communicated with in a similar situation. As English speakers, wherever one travels throughout the world, there is a facility to deal with individuals in that language. This provision is imperative and I am sure it will be raised in relation to civil liberties and the rights of individuals to have discussion and discourse in their first language.
These amendments refer to the requirement that staff be able to speak Irish to patients whose first language is Irish. As Senators will be aware, the Minister, Deputy Martin, and I are supportive of the Irish language and the rights of citizens to receive services through the medium of Irish, where possible. However, it is problematic to insert such amendments in legislation because of the severe difficulties currently faced by the health service in the recruitment and retention of staff in areas such as psychiatric services. Because of these difficulties, many staff in the mental health services are not even Irish citizens. This is the case, in particular, in regard to nurses and consultant psychiatrists. I would not like to see a situation where a patient's mental health was put at risk because the doctor could not speak Irish and an Irish speaking doctor was unavailable.
The right of citizens to receive services through Irish is being dealt with currently by the Minister for Arts, Heritage, Gaeltacht and the Islands. I am pleased to inform Senators that the heads of the Official Languages Equality Bill were approved by the Government last week. The general scheme has now been referred to the Office of the Parliamentary Counsel for drafting as a matter of priority. Among the key features of the Bill will be the specification of the obligations on Departments of State and the public sector to provide services for citizens in both official languages and to provide for the overseeing, monitoring and enforcing of the Act by the establishment of the office of the official languages commissioner. The Senators' concerns in regard to the recognition of the Irish language would be more appropriate to a discussion on that Bill which will be brought before this House in the near future.
The Minister of State will not be surprised to find that I completely and utterly disagree with him on this issue. It is the old story that people from the Gaeltacht are always the last to have their rights recognised, and it has been ever thus. This is unfair. My heart goes out to these people, the source and the well of the Irish language, who rarely get any decent or real support. This is another example of that.
I am not proposing these amendments to have a go at the staff in hospitals. I believe interpreters and translations could be provided to make available to patients the doctor's advice or decisions tré mheán na Gaeilge. That is not too much to ask. The view of the Government is unacceptable and it deserves to be seriously embarrassed on this one. It is the old story we get time and again that anything is good enough for people from the Gaeltacht. Ní bhíonn aon duine ann dóibh riamh nuair a bhíonn beart le déanamh. Nílim ag tabhairt aire do chearta daonna muintir na Gaeltachta sa reachtaíocht seo. Is oth liom é sin a rá agus is oth liom a chlos nach bhfuil an tAire sásta an moladh seo a ghlacadh.
Is sa Ghaeltacht atá tobar na Gaeilge. Is iad muintir na Gaeltachta atá ag cothú na teanga dúinn uilig agus atá i gceartlár ár gcultúir. Nílimid sásta, áfach, an tacaíocht atá á lorg a thabhairt dóibh ag an bpointe seo. I really regret the decision of the Minister.
Amendments Nos. 16 and 18 are related and may be discussed together by agreement.
I move amendment No. 16:
In page 16, line 30, after "patient" to insert "or his or her locum of the consultant covering his or her work".
This relates to the professionalism of Senator Henry. She was extremely concerned that the phrase "or his or her locum of the consultant covering his or her work" be inserted. This was to give consistency and professionalism in the context of the locum's proficiency and capacity. There was considerable debate last week on this so I hope the Minister will respond positively.
I second the amendment.
Senator Henry spoke on Committee Stage about the apparent lack of clarity in this section as to whether it provided for a situation where the consultant psychiatrist in charge of a patient was absent on leave or on business. My officials have since consulted with the legal advisers in the Office of the Attorney General and the advice is that the reference in this section to the consultant psychiatrist responsible covers a situation where a locum consultant was acting in place of the consultant responsible. In light of the advice these amendments are unnecessary.
Because of the Minister's explanation and the advice given to him I will withdraw the amendment.
I move amendment No. 19:
In page 18, to delete lines 20 to 24, and substitute the following:
"(4)On appeal to it under subsection (1) the Circuit Court shall–
(f2>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
(f2>b)if it is not shown as aforesaid, by order affirm the order.".
I second the amendment.
The amendment here is concerned with the balance which the Circuit Court must apply in hearing an appeal by an individual or patient against a decision of a 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 the mental disorder. The decision 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. This, I have been advised by the Office of the Attorney General, is the correct balance in this additional appeal mechanism being provided in the Bill. It gives an individual the means to overturn a wrong decision while at the same time giving due weight to the decision of the tribunal.
This does not mean that the authorities will have to defend the tribunal decision. The authorities have to satisfy the court with their answers to the challenge made by the individual concerned. The present provision means that after hearing all the evidence the court will uphold the original decision unless it is satisfied that the individual is not suffering from a mental disorder. The amendment proposed by Senators Henry and O'Toole 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 which is considered to be best made by the medical profession concerned. It is worth reminding Senators that this mechanism for appeal is in addition to habeas corpus under the Constitution. I cannot therefore accept the amendment.
Amendments Nos. 20 to 22, inclusive, are related and may be discussed together by agreement.
I move amendment No. 20:
In page 20, line 7, after "fit" to insert "after consultation with the consultant psychiatrist who has clinical responsibility for the patient.".
This amendment again is practical. Senator Henry would like to insert after the word "fit" the phrase "after consultation with the consultant psychiatrist who has clinical responsibility for the patient". It stands to reason that there should be consultation with the consultant psychiatrist and I cannot understand why that was not included. Senator Henry feels strongly about this issue and one can understand why. I hope the Minister will give serious thought to the amendment in the interests of the patient. Surely the consultant psychiatrist with clinical responsibility would discuss the issue and would have the opportunity to do so.
I second the amendment.
The practice of modern psychiatry is based on multi-disciplinary teams where the clinical director of a service works as the leader of a team of two or more consultant psychiatrists. Senator Lydon made the point on Committee Stage in this House that the fears of Senator Henry, in relation to clinical directors transferring involuntary patients without reference to the consultant psychiatrist responsible, were unfounded and would be most unlikely to occur in psychiatry. Accordingly, I do not propose to accept these amendments.
The phrase used, "most unlikely", is exactly the reason there should be consultation. "Most unlikely" is very vague. The Senator has genuine fears and I am disappointed with the Minister's response.
I move amendment No. 27:
In page 22, line 16, after "psychiatrist" to insert "who is not a spouse or relative of the person".
I propose this amendment on behalf of Senator Henry who was definite in her wish to insert throughout the Bill provisions that psychiatrists not be spouses or relatives of the people involved.
I second the amendment, which is important.
I accept the arguments made by the Senators and by Senator Henry on Committee Stage. I am therefore prepared to accept the amendment.
I move amendment No. 28:
In page 22, line 23, after "centre" to insert ", after consultation with the consultant who has clinical responsibility for the patient".
I propose this amendment on behalf of Senator Henry. It makes provision for consultation with the consultant who has clinical responsibility and runs in the same vein as the last amendment.
I second the amendment.
Section 24 of the Bill provides that a voluntary patient who has been detained under section 23 must be referred by a consultant psychiatrist for examination by a second consultant who must confirm that the patient should be detained, or otherwise direct that they be discharged. The amendment requires that the second consultant psychiatrist providing the opinion on whether a voluntary patient should be detained should first consult the consultant responsible for the patient. To do so would go against the purpose of the section, which is to ensure an independent second opinion is obtained before a voluntary patient is detained. Accordingly, I cannot accept the amendment.
Of course we expect consultation, but it is very important to have independence. All we ask is that the psychiatrist not be a relative of the child.
That has been agreed.
The Senator is thinking of amendment No. 27, but we are on amendment No. 28.
Excuse me. This amendment seeks consultation with the consultant who has clinical responsibility for the patient, which is obviously not in the same vein as my comments. I did not follow the Minister of State's explanation.
One would have to disregard the advice of the admitting consultant in order to have an independent consultation. This section of the Bill allows for an independent special second opinion which is unrelated to the first.
I understand.
The measure in the Bill will serve the interests of the patient.
As amendments Nos. 30, 31 and 34 are cognate, they may be discussed with amendment No. 29.
I move amendment No. 29:
In page 23, line 6, after "psychiatrist" to insert "who is not a relative of the child".
The argument in favour of this amendment was made in relation to earlier amendments. It is extremely important that there be independence.
I second the amendment.
Amendments Nos. 29, 30, 31 and 34 relate to references to consultant psychiatrists in section 25. Senator Henry has proposed that in each case the consultant concerned should not be a relative of the child. I am prepared to accept amendments Nos. 29, 31 and 34, but cannot accept amendment No. 30 as I am advised that the reference in line 21 to which amendment No. 30 refers is unnecessary as it relates to the consultant psychiatrist already referred to in line 6, the subject of amendment No. 29. It is a technical issue.
I understand the technicality.
I move amendment No. 31:
In page 23, line 21, after "psychiatrist" to insert "who is not a relative of the child".
I second the amendment.
I move amendment No. 32:
In page 23, between lines 41 and 42, to insert the following:
"(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.".
This amendment is self-explanatory. We want to be protective of the child. The second opinion therefore should be from a consultant psychiatrist who is not related to him or her.
I second the amendment.
In keeping with the approach to children at risk adopted in the Child Care Act, 1991, the involuntary admission of children with a mental disorder is subject in the Bill to parental consent or an order of a District Court. Section 25(14) provides that certain sections of the Child Care Act, 1991, will apply to proceedings under this section, including a provision that in all proceedings the welfare of the child must be the primary concern of the court. The amendment envisages that if a parent of the child disagrees with the action of the health board, he or she can obtain a second opinion, but such a provision is catered for. Section 27 of the 1991 Act, which applies to this Bill, enables the court "of its own motion or on the application of any party to procure a report from such person as it may nominate on any question affecting the welfare of the child" and to make copies of any such report available to concerned parties. Reports may be received in evidence at the proceedings and the person making the report may be called as a witness. As this allows the parent or the court to request the second opinion referred to in the amendment, I do not propose to accept it.
I move amendment No. 33:
In page 24, line 4, to delete "12" and substitute "6".
This amendment tries to reduce the period for which detention may be extended from 12 to six months, which is in the interests of the patient.
I second the amendment. I realise I did not participate in the debate on Committee Stage, but I wonder if the Minister of State can explain the reason the Bill provided for a 12 month period as it seems inordinately long, given that the first order can only be made for six months.
We discussed this at length on Committee Stage when it was decided to leave the adult and child provisions in this regard the same. We reviewed the periods allowed for in the Bill, such as 21 days, three months, six months and one year for various matters. The time period of 12 months applied to the duration of an order. I accept the point made by Senators and by Senator Henry on Committee Stage that 12 months is a long time in the life of a child. As I agree that in this case the rules which apply to adults regarding the duration of an order should not apply to children, I will accept the amendment.
I thank the Minister of State for his response.
I move amendment No. 34:
In page 24, line 8, after "psychiatrist" to insert "who is not a relative of the child".
I second the amendment.
As amendments Nos. 36 to 38, inclusive, are related to amendment No. 35, all may be discussed together.
I move amendment No. 35:
In page 28, line 4, after "services" to insert "and with experience in the provision of such services through the medium of the Irish language".
I second the amendment.
While I appreciate the point made by Senator O'Toole and others regarding the importance of the recognition of the Irish language, I do not propose to accept these amendments as they would restrict the Minister's scope when making appointments to the Mental Health Commission. A more important way of providing for recognition of the Irish language is through ensuring, where possible, State services are made available through Irish for those who speak the language. I referred to the official languages equality Bill, which will provide an opportunity to address the issue in a comprehensive manner in legislation. Accordingly, I do not accept the amendment.
I am surprised there would not be enough Irish speaking members of the commission. It would be extraordinary if it were not possible to appoint bilingual members to it.
I accept that but in the context of the legislation we are trying to create the greatest latitude for the Minister in order that he or she is not constricted in this regard. There could be a person whom the Minister wants to appoint to the commission and who could do an excellent job but he or she may not have Irish.
While I understand that, the thrust of the legislation is towards the care of the patient. He or she must not be further stressed and would be more at ease communicating through his or her own language. It must not be forgotten that our business is to protect patients. This issue should be re-examined.
The amendment refers to doctors with experience of providing services. That might be more restrictive. Níl Gaeilge ag gach dochtúir.
Níl. However, they would have learned Irish at second level. If I made a greater effort, I could be proficient, even through listening to tapes. Given the high number of points students need to take up third level courses in medicine, they must score extremely well in Irish in the leaving certificate and, therefore, it is not too much to ask that they should be proficient.
If one is practising in the north inner city, one needs to be multilingual. B'fheidir go bhfuil an leasú—
Does the Senator have Connacht Irish?
No, it is north inner city Dublin Irish from Coláiste Mhuire, Cearnóg Pharnell. The amendment is restrictive rather than enabling. Ireland is becoming a multi-ethnic society. The provision should be as wide as possible rather than restricting the Minister.
We made that point earlier.
Amendments Nos. 40 and 41 are cognate on amendment No. 39. All may be discussed together.
I move amendment No. 39:
In page 35, line 1, after "psychiatrist" to insert "who is not a spouse or relative of the patient before the tribunal".
On Committee Stage, Senator Henry sought absolute independence for the tribunal. There must be consistency in the legislation and references are missing.
I second the amendment. I hope the Minister of State views these amendments similar to earlier amendments.
It is generally accepted that, as a matter of ethics, a member of the tribunal would withdraw from deliberations where a spouse or relative was concerned. This issue would normally be dealt with administratively and referred to in the form of appointment of a tribunal member. It is not considered necessary to insert such provisions in legislation and I am not aware of any legislation dealing with tribunals which contains them. Accordingly, I do not propose to accept the amendment.
Will the Minister of State assure us that will be the case?
Usually in the letter of appointment sent to such a person attention is drawn to that very fact. This issue is covered by ethical standards and will be pointed out in the criteria for appointment.
I move amendment No. 43:
In page 42, line 27, after "patient" to insert "fully understands the nature of such therapy".
This is a simple amendment which relates to the patient. I hope the Minister of State will accede to it.
I second the amendment.
The amendment requires that when a patient has given consent to the administration of a programme of electro-convulsive therapy he or she fully understands the nature of such therapy. I agree this is important. The definition of "consent" for the purposes of this Part is provided in section 56. It is defined as "where a patient is capable of understanding the nature, purpose and likely effects of the proposed treatment and where a patient has been given adequate information on the nature, purpose and likely effects of the proposed treatment". The definition will apply in regard to the administration of a programme of electro-convulsive therapy. Therefore, the amendment is unnecessary.
I accept the Minister of State's response.
Amendment No. 45 is cognate on amendment No. 44. Both may be discussed together.
I move amendment No. 44:
In page 42, line 37, after "psychiatrist" to insert "who is not a spouse or relative of the patient".
This again refers to a psychiatrist who is not a relative of the patient. Amendment No. 45 relates to a psychiatrist who is not a relative of a child. There is a distinction between the two.
I second the amendment.
As I indicated, I accept the principle that the consultant psychiatrist who makes the key decision regarding involuntary detention should not be a spouse or relative of the patient. However, these amendments relate to consultants who will provide second opinions on the administration of treatment. There are sufficient safeguards in the legislation to ensure these powers are not abused. For example, one of the functions of the inspector of mental health services under section 52 is to ascertain whether provisions in this Part are being complied with. Accordingly, these amendments are unnecessary.
I am happy with the Minister of State's response.
I move amendment No. 46:
In page 43, between lines 32 and 33, to insert the following:
"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.".
The legislation does not provide penalties for those guilty of an offence under it. There should be a penalty. I was surprised by the Minister of State's response to the amendment on Committee Stage. Perhaps he will change his position on Report Stage.
I second the amendment.
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 Bill 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 the guidelines issued by the relevant professional bodies and all medical practitioners are subject to the fitness to practice powers of the Irish Medical Council. There are sufficient safeguards in the Bill and in other areas of the law to ensure that psychiatrists will adhere to those provisions. I do not see a requirement at present to impose penalties. If, following the review of the Act envisaged by section 74, it is discovered that these provisions are being ignored by the medical profession, the case for imposing penalties can be reviewed. Accordingly, I do not propose to accept the amendment.
We all hope there is ethical professionalism in all aspects of the health service. The Minister of State has allayed my fears that if something untoward happens, it will be possible to do something about it. I am happy with his response and I will not press the amendment.
I move amendment No. 48:
In page 48, between lines 21 and 22, to insert the following:
"(c)prescribed requirements as to facilitating residents in meeting with an independent patient advocate on request,”.
The fact that this is the last amendment does not mean it is less important. It is an extremely important amendment which facilitates "residents in meeting with an independent patient advocate on request". An independent patient advocate is important. There is no reference to advocacy in the Bill, yet there is advocacy in all areas of the health services and in many other areas. Patients are vulnerable and they should have the choice of independent advocacy, if they want it. There should be independent advocacy services to support patients.
I second the amendment.
I support many of the sentiments expressed by the Senator about the importance of having independent advocacy services available to people who are detained in psychiatric hospitals. The development of advocacy services will help to address the civil and human rights of the mentally ill. This Bill makes a statutory provision for legal advocacy for people with a mental disorder by requiring the Mental Health Commission to provide each person who is detained with a legal representative. The Government recently made clear its support of the development of other types of advocacy services by its commitment contained in the Programme for Prosperity and Fairness to assist initiatives to provide independent advocacy services for people who are involuntarily detained under the provisions of the new Mental Health Bill.
Some groups in the voluntary sector have provided informal advocacy services to patients and families of the mentally ill for some time. It is envisaged that advocacy services will continue to be provided by the voluntary sector and will be funded by way of grants from the Department. It is expected that the expertise of the voluntary agencies in this area will be of great benefit in the further development of such services in the coming years. It is estimated that the cost of funding these services will be approximately £200,000 per annum initially. However, I cannot accept the amendment as the main focus and emphasis is on legal advocacy.
I accept what the Minister of State said about legal advocacy, which must be included. However, I am disappointed if it is a question of funding. The Minister of State mentioned the future, but no other group is more vulnerable or in need of independent advocacy. This Bill must focus on the patient. That is the reason I support Senator Henry's amendment on advocacy services. Legal advocacy must also be included. I hope this issue will be revisited. Voluntary groups form part of this area. The Minister of State mentioned a figure of £200,000, which is reasonable. It would make a great difference to the patient about whom we are concerned.
We are not talking only about money but about the patient. The patient must be at the centre of our thoughts. Legal advocacy is superior to anything else we can give. However, it does not exclude the voluntary groups or any other body acting as an advocate in this situation.
I am concerned about the support services as well as legal advocacy.
I thank the Senators who supported the amendments. I also thank the Minister of State, Deputy Moffatt, who stayed with us on Committee Stage. He listened carefully to what was said and responded positively on some aspects, although it was disappointing he did not do so on other aspects. However, I am sure we will have an opportunity to discuss them again on another day. I thank him for his support and I thank Senator Keogh for being present.
I thank the Minister of State and the Senators who discussed this Bill in great detail and with great sensitivity and understanding. I agree with Senator Jackman that mental health will take up more of our time in the coming months and years. I look forward to discussing mental health issues and their ramifications.
I thank all the Senators who contributed to this debate. We have had a good discussion. Many Senators on both sides stayed here for the entire debate, including Senators Jackman, Henry and O'Toole. This is an important Bill. It has been a long time in gestation, but it is great that it has come to fruition. The discussion and the amendments made will improve it. I thank everybody for their input. Senator Henry is absent today, but she put in a trojan amount of work and I thank her for that. I hope it will be an excellent Act in the years ahead in dealing with involuntary detention.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.
