Mental Health Bill, 1999: Committee Stage (Resumed)

I welcome the Minister for Health and Children, Deputy Martin, and his officials. Our task today is to resume our consideration of the Mental Health Bill, 1999. I am sure Members will be anxious to conclude our deliberations and I suggest that the meeting should run until 1 p.m. If our deliberations are not concluded at that stage, is it agreed that they should resume at 2.30 p.m. and continue until 3.30 p.m.?

Yes, but why must we suspend at 1 p.m.?

The difficulty is that if we do not conclude our deliberations it will be three weeks before we can do so.

I am obliged to be at the airport at 4.30 p.m. to see off the Ugandan Minister who is visiting the country. However, I am prepared to see how matters proceed.

On its adjournment yesterday, the Select Committee had completed consideration of amendment No. 41.

SECTION 14.

Amendments Nos. 42 and 57 are related and may be taken together by agreement.

I move amendment No. 42:

In page 14, subsection (1), line 26, after "subsection (2)” to insert “and section 17(3)”.

This is a technical amendment. Under section 16(1)(c), the mental health commission is required to appoint an independent consultant psychiatrist to examine each patient whose case comes before a tribunal and to report to the tribunal on the patient’s condition. The amendment simply requires the tribunal to consider the independent consultant’s report before making its decision.

Amendment agreed to.

I move amendment No. 43:

In page 14, subsection (2), lines 30 and 31, to delete "a further period of three months" and substitute "periods of 14 days up to a maximum of 3 months in total".

I have strong reservations about this section. I will not add to what I said yesterday because I have no wish to delay proceedings. I will withdraw the amendment in the context of what I said yesterday.

Amendment, by leave, withdrawn.
Amendments Nos. 44 and 45 not moved.

I move amendment No. 46:

In page 14, subsection (3), line 36, to delete "concerned".

This is a technical amendment.

Amendment agreed to.
Question proposed: "That section 14, as amended, stand part of the Bill."

I wish to inquire about the reviews provided for under section 14. It was highlighted yesterday that such reviews do not take place at present. With regard to people who are in psychiatric homes for social reasons, the aged - who are infirm and who are not required to be in psychiatric homes and should be transferred to geriatric homes or continuing care homes - and intellectually disabled people who are not mentally ill, is it not correct that a clinical assessment will decide that these people should not be in psychiatric homes? Is it correct that orders will no longer be made to keep these people in such homes? What is the position regarding people whom a tribunal decides should not remain in homes?

They can no longer be detained involuntarily. However, practical considerations come into play at that point regarding where people reside, etc. I have visited certain institutions that are home to people with intellectual disabilities for many years. What we are doing is providing new services and designating certain institutions in some instances. We are also attempting to create a new system to help deal with these people over time by the provision of resources and the establishment of facilities in community settings.

The Deputy's point is valid, I am not arguing against it. However, in the context of the Bill, the people to whom he refers can no longer be detained involuntarily.

What is the position in circumstances where a tribunal might seek to be informed within three or four weeks that patients such as those to whom I referred are no longer resident in psychiatric homes? I know a number of people who are resident in psychiatric homes who should not be there. They were placed in these institutions for social reasons.

And they are now institutionalised?

Yes, they are totally institutionalised. I take the Minister's point about voluntary detention. However, what is the position if these people are asked if they want to be in a psychiatric home and they say no?

We must change the context in which these people are detained in particular homes. In Portrane, for example, a range of developments have taken place in respect of the intellectually disabled and those who have been there for many years. We are moving these people out of institutions and into more therapeutic residential centres.

Are the centres to which the Minister refers psychiatric institutions?

No. In my opinion, they are proper, appropriate placements for people in that situation.

I am referring to people who have been moved out of psychiatric hospitals.

These residential centres are not mental institutions?

No. In his report, the Inspector of Mental Health suggested that we should redesignate many of the traditional psychiatric institutions. For all practical purposes, these places are not psychiatric institutions, they are places where people live and reside. We must do more in terms of providing the multi-disciplinarytherapies that were not on offer in the past.

Does the Minister envisage that people who are resident in these institutions on a voluntary basis will be consulted and asked if they wish to remain?

There is a practical consideration here in terms of——

That is the matter with which I am trying to deal.

I know. Is the Deputy suggesting that——

No. I want to know how it will operate.

It will operate in a practical way. Our business is in the provision of care and providing appropriate placements for people. It would be very injurious to the conditions of many individuals if we were simply to inform them that they were not obliged to stay and that they could move elsewhere. In relation to people who have been institutionalised for 20 or 25 years or those with intellectual disabilities who have been in an institution for ten or 20 years, the State has an obligation to ensure that appropriate placements are provided for these people and that a continuing care scenario is put into operation in respect of them.

But such placements have not been provided as yet.

Not to the degree that they should be.

It will take a considerable period to provide those places.

Yes, it will.

Because of past neglect, it will take many years to provide proper residential places for those to whom I refer and to help them to survive in the wider community. However, the tribunal will state that these people should not have a committal made against them. Will such patients be consulted and informed that they have a choice because, under the Bill, their status will have changed to being voluntary? How will the authorities deal with situations where patients will be obliged to make a choice regarding whether to remain in an institution?

What choice will the person have in the eyes of those who are currently responsible for his or her care?

He or she might have a choice——

Of becoming homeless and living on the street? That is the choice we want to avoid.

Of course, but that is the verychoice to which I am referring.

We must be practical about how we develop the services. We are trying to move forward from the position of acknowledging that what happened in the past was not correct. It is clear that, in many instances, people were wrongly institutionalised. We are trying to move forward from that to a position where proper and appropriate placements are provided for people in that situation. The Deputy is correct that it will take time to do so. In the interim, we are endeavouring to provide better facilities in existing centres to meet the needs of those living there.

The only way to improve some of those places is to close them down.

I do not know whether Deputy Neville is aware that we have developed a good pilot project in Ballinasloe which, it is hoped, will provide a good model in terms of creating the type of appropriate placements for those to whom he referred.

Is it agreed that section 14 should stand part of the Bill?

With the strongest reservations and on the basis that we will return to deal with it on Report Stage.

Question put and agreed to.
SECTION 15.

Amendments Nos. 47, 52 and 63 are related and may be taken together by agreement.

I move amendment No. 47:

In page 14, subsection (1), line 46, to delete "as soon as may be" and substitute "not later than 24 hours thereafter".

These amendments propose a tightening up of the timeframe within which certain steps in the procedure for involuntary admission must take place. In section 15 the consultant psychiatrist admitting a patient involuntarily must within 24 hours give the patient a notice to that effect informing him or her of their rights under the Act. In section 16 the legal phrase "as soon as may be" is being replaced with the more familiar "as soon as possible". However, the meaning is unchanged. In section 20 where a proposal to transfer a patient to the Central Mental Hospital is referred to a tribunal, the tribunal will be required to make a decision on the matter within 14 days. These amendments will serve to improve the protection afforded to patients under the Bill.

Amendment agreed to.
Amendment No. 48 not moved.

I move amendment No. 49:

In page 14, subsection (1)(a), line 47, to delete “give” and substitute “send”.

This is a minor amendment of a technical nature that will allow for the relevant order to be sent to the mental health commission by post or by electronic mail.

Amendment agreed to.

I move amendment No. 50:

In page 15, subsection (2)(f), line 14, to delete “order” and substitute the following:

"order, and

(g) may be admitted to the approved centre concerned as a voluntary patient if he or she indicates a wish to be so admitted.”.

A fundamental principle of the Government's policy on mental health is that people with mental illness or other mental disorders should be treated in the same way as people with other illnesses or medical conditions. It is important, therefore, that wherever possible psychiatric care and treatment should be provided to a patient with his or her full agreement and co-operation.

The amendment ensures that all patients who are the subject of an admission order will be informed of their right to be admitted as voluntary patients if they so wish. Even though an admission order is valid for 28 days, a detained patient can be reclassified as a voluntary patient at any time if he or she agrees. This is quite a common occurrence in psychiatric hospitals where patients, who may have been quite seriously ill and resistant to treatment, gain an insight into their illness as they recover and consent to treatment voluntarily.

In effect, involuntary patients will have more rights than voluntary patients on foot of the passage of the legislation. There is no onus placed on anyone to explain to voluntary patients - if they choose to be voluntary patients - that they are losing certain rights they would have as involuntary patients.

To which rights is the Deputy referring? Voluntary patients need not remain in hospital if they do not wish to do so.

No, but involuntary patients' cases will be reviewed automatically.

That is because of the fact that they are involuntarily detained.

Just because a person is a voluntary patient does not necessarily mean that they have full grasp of their position because they may be confused for a number of reasons, including the fact that they may be on medication. The argument has been put forward that people will be better off being involuntary patients because of the——

The new legislation.

——protections provided in the Bill. At present, all patients are entitled to information about their rights. However, if one carried out an assessment I am sure one would discover that very few of them are aware that, even now, they may appeal to the Minister under existing legislation. There should be an onus to ensure that when this option is being explained to a patient, that explanation should include the fact that they will no longer be entitled to have their case reviewed under the terms of this Bill.

That can be done. I do not see any great difficulty explaining to patients who chose to become voluntary patients that they will no longer be entitled to have their cases considered by a review tribunal, etc.

I know it can be done. I am asking if it will be done.

We will consider it before Report Stage. The Bill came about as a result of issues surrounding involuntary detention, the way the system operated and people's lack of rights. The Deputy and others are stating that if we correct those problems, the situationvis-à-vis voluntary patients will change. The case is arguable but there are a number of later amendments that deal with certain aspects of that matter.

Amendment agreed to.
Amendment No. 51 not moved.
Section 15, as amended, agreed to.
SECTION 16.

I move amendment No. 52:

In page 15, subsection (1), lines 19 and 20, to delete "as soon as may be" and substitute "as soon as possible".

Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.

I move amendment No. 53:

In page 16, subsection (1)(a), line 15, after “order” to insert “and that the approved centre has staff, resources and facilities adequate for the treatment of that disorder”.

It is important that approved centres should be able to deal with the treatment of particular disorders. Deputy Neville has already highlighted the fact that many inappropriate placements were made in the past in respect of people with mental handicaps. The amendment would ensure that an approved centre would be able to treat people with particular disorders.

The intention of the amendment is to ensure that every approved centre has at its disposal the staff, resources and facilities necessary for the treatment of mental disorders and the detention of involuntary patients. In my opinion that function is proper to the mental health commission we are establishing under the Bill and, more particularly, the inspector of mental health services. We are discussing the tribunals and the role they will play. The tribunals are primarily concerned with deciding whether a person is mentally disordered to the extent that it warrants a deprivation of their liberty. That is the reason the tribunals are being established and I do not wish to go beyond that in terms of altering the remit of the tribunals under the Bill.

The problem is that the commission is not being given an over-arching role in terms of planning services and ensuring that there is equanimity across the country. It may be the case that a person in one part of the country may be detained in an institution that is not equipped to deal with his or her particular needs. It will not be the fault of the commission if that person does not receive proper treatment because all it is responsible for is ensuring that an approved centre is capable of meeting certain needs, is licensed and is registered to provide care of a proper standard.

Just because a centre can meet certain needs does not mean it can meet every need. The prime example of this involves the inappropriate placement of people with mental handicap, possibly because there was nowhere else to put them.

That will be the function of the inspector of mental health services.

He will not have the authority to change it.

No, but the health boards and the Minister of the day have statutory authority to do so. That is the way it should work. Under the Bill, the mental health commission and, particularly, the inspector of mental health services will report on an annual basis to the Minister in respect of the quality of the methodologies in place in approved centres, which is what the inspector of mental health is doing at the moment. One could argue, as has been argued, that maybe historically it took a long time for Governments to provide the necessary resources to implement what inspectors of mental health suggested should be implemented. One could argue that in more recent times, there has been a greater degree of response to the reports of the inspector of mental health, albeit belatedly. That is the way thesystem should work.

What we are doing here is trying to give extra functions to the tribunals, the sole function of which is to decide whether a person's liberty should be deprived in the context of an involuntary detention order. In terms of the remit of the Bill, I do not think it is appropriate for the tribunals to do that particular work. I think it is appropriate for the inspector of mental health services to do, to point out in terms of its audit of approved centres and institutions.

I think we had better agree to disagree. It seems extraordinary that we are saying an approved centre does not have to have the staff, resources and facilities adequate for the treatment of a particular disorder.

Section 65, to a certain extent, gives us power to make regulation in relation to approved centres such as to prescribe requirements as to the staffing, including the suitability of members of staff of centres and so on. There are other avenues.

Amendment put and declared lost.

Amendment No. 126 is related to amendment No. 54, so we will take amendments Nos. 54 and 126 together.

I move amendment No. 54:

In page 16, between lines 23 and 24, to insert the following subsection:

"(2) A patient may also appeal to a tribunal against any decision regarding treatment, seclusion or restraint, or conditions of custody, and any treatment shall not be effected pending the determination of such an appeal.".

This amendment is self-explanatory and relates to aspects of treatment, seclusion or restraint or conditions of custody. It gives the person who is involuntarily detained certain opportunity to appeal and obviously these are areas of concern that have been described by the inspector in certain instances. Presumably if we are to have a review process, this will be of benefit to the patient.

The amendments propose that the mental health tribunals deal with issues other than involuntary detention. However, each of the issues listed in the first amendment is already dealt with separately in the Bill. Decisions regarding treatment are dealt with extensively in Part IV and I have tabled several amendments to this Part to improve and strengthen the safeguards concerning the treatment of involuntary patients.

In relation to seclusion and restraint, section 68 provides that the commission may make rules setting out the procedures and the instances in which seclusion and restraint may be used. It is worth noting that by their very nature, seclusion and restraint are emergency measures and it would be impractical and inoperable to require a patient to appeal to a tribunal. We could not require that the treatment would be delayed pending the determination of the appeal.

The final item mentioned on the list was the conditions of custody by which I presume the Deputy means the conditions of the hospital or approved centre in which a patient is maintained. I said earlier that the inspector of mental health services will have a specific role in relation to examining conditions in approved centres and reporting to the mental health commission which will then have the power to report to the Minister and, if necessary, to make its own report on any issue which concerns it. Each of the items mentioned in the amendments has been dealt with separately and adequately elsewhere in the Bill and I do not think it is necessary to accept these amendments.

I will withdraw the amendment and we will wait and see if the Minister is right.

Amendment, by leave, withdrawn.

Is amendment No. 55 being moved?

I will reintroduce it on Report Stage if necessary.

Amendments Nos. 55 and 56 not moved.

I move amendment No. 57:

In page 16, between lines 26 and 27, to insert the following subsection:

"(3) Before making a decision undersubsection (1), a tribunal shall have regard to therelevant report under section 16(1)(c).”.

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.

I move amendment No. 58:

In page 17, subsection (1), line 5, to delete "a renewal" and substitute "an".

Amendment agreed to.

I move amendment No. 59:

In page 17, subsection (3), line 14, after "situated" to insert "or, at the option of the patient, in which the patient is ordinarily resident".

This amendment gives the option to the patient. On occasion, no doubt, a patient could end up in a different part of the country from that in which they are normally situated. This allows flexibility in terms of having the hearing closer to home.

Amendment agreed to.

I move amendment No. 60:

In page 17, between lines 28 and 29, to inset the following subsection:

"(7) 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.".

The reason I put down this amendment is that it seems the Minister needs to look at this section again. I understand that if there is an appeal to the Circuit Court, the onus is on the patient to prove that he or she is not suffering from a mental disorder. The onus is not on the hospital, the health board or the psychiatrist to establish that the patient was involuntarily admitted and has a mental disorder.

The purpose of this amendment is that in the event of an appeal, the hospital, health board or psychiatrist concerned may be required - it does not say shall be required - at the discretion of the court to satisfy the court that the patient suffers from a mental disorder. That is the purpose of the amendment.

The amendment is concerned with the balance which the Circuit Court must apply in hearing an appeal by an individual patient against the decision of a tribunal. The Bill is premised on the principle that the decision as to a 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 theCircuit 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 as drafted is that when that 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 not have to defend the tribunal decision, the authorities will have to satisfy the court with their answers to the challenges 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 would have the effect of having the issue reheard in its entirety and it would allow the court to commence an investigation of the kind already carried out by the tribunal and which, as I said, is concerned to be one best made by the medical professionals concerned. It is also worth reminding Deputies that this mechanism for appeal is, of course, in addition to habeascorpus under the Constitution.

Amendment, by leave, withdrawn.

I move amendment No. 61:

In page 18, subsection (11)(c), line 8, to delete “body corporate” and substitute “person”.

This is a technical amendment.

Amendment agreed to.

I move amendment No. 62:

In page 18, lines 45 and 46, to delete subsection (16).

It is highly unusual that this provision is being made, that is, that the decision of the Circuit Court shall be final and conclusive. I would have thought that there is a right to proceed, if one so wishes, to the High Court. In the Employment Appeals Tribunal, there is that provision. I would have thought it was the right of a citizen and I ask that the Minister delete this subsection.

It is a difficult issue and I take the point made. It proposes to delete the provision in the section that the decision of the Circuit Court on an appeal under this shall be final and conclusive. We have been advised by the AttorneyGeneral that there is a precedent for this.

Where is the precedent?

The Employment Appeals Tribunal is one.

They have said——

We have been advised by the Attorney General on this. It may be asked why provide for a tribunal in the first instance? It is that in the first instance it is a medical decision, therefore, a tribunal with the necessary expertise should be established to make a decision. The question then arises about using the courts system subsequently. It could be argued that to a certain extent that approach reduces the efficacy of the tribunal process. On the other hand, given that a person has the right to bodily integrity under the Constitution, he will be able to appeal to the Supreme Court under thehabeus corpus route. We are not debarring people from doing that.

I may have made a mistake on the Employment Appeals Tribunal. I understood the position differently. However, one hopes the Attorney General must know what he is talking about.

I suggest we leave the provision as it stands, but return to it on Report Stage. I need to give the matter further consideration.

That is acceptable.

It is not my intention to deprive people of their rights.

Amendment, by leave, withdrawn.
Section 18, as amended, agreed to.
Section 19 agreed to.
SECTION 20.

I move amendment No. 63:

In page 19, subsection (2)(b), line 39, after “as soon as may be” to insert “but not later than 14 days thereafter”.

Amendment agreed to.

I move amendment No. 64:

In page 20, lines 11 to 14, to delete subsection (4).

This is a minor technical amendment. I have been advised by the parliamentary counsel that subsection (4) is superfluous and could cause confusion as to the precise meaning of subsection (5). I propose, therefore, that it be deleted.

Amendment agreed to.
Section 20, as amended, agreed to.
Sections 21 and 22 agreed to.
SECTION 23.

I move amendment No. 65:

In page 21, between lines 40 and 41, to insert the following subsection:

"(6) References in this section to the consultant psychiatrist responsible for the care and treatment of the person include references to a consultant psychiatrist acting on behalf of the first-mentioned consultant psychiatrist.".

This amendment provides that in circumstances where a patient's own consultant psychiatrist is unavailable to make the decisions required under this section, another consultant psychiatrist may act on his or her behalf. This is a necessary amendment because decisions regarding the involuntary detention of voluntary patients are, of their nature, emergency decisions and it may not always be possible to contact the patient's own consultant during the 24 hour period which is permitted under the section.

Amendment agreed to.
Section 23, as amended, agreed to.
SECTION 24.

Amendments Nos. 67, 68 and 71 are related to amendment No. 66. Amendments Nos. 66, 67, 68 and 71 may be taken together by agreement.

I move amendment No. 66:

In page 21, lines 41 to 49, and in page 22, lines 1 to 7, to delete subsection (1) and substitute the following:

"(1) Where it appears to a health board with respect to a child who resides or is found in its functional area that

(a) the child is suffering from a mental disorder, and

(b) that the child requires treatment which he or she is unlikely to receive unless an order is made under this section,

then, the health board may make an application to the District Court ('the court') for an order authorising the detention of the child in an approved centre.

(2) Subject to subsection (3), a health board shall not make an application under subsection (1) unless the child has been examined by a consultant psychiatrist and a report of the results of the examination is furnished to the court by the health board.

(3) Where-

(a) the parents of the child, or either of them, or a person acting in loco parentisrefuses to consent to the examination of the child, or

(b) following the making of reasonable enquiries by the health board, the parents of the child or either of them or a person acting in loco parentis cannot be found by the health board,

then, a health board may make an application undersubsection (1) without any prior examination of the child by a consultant psychiatrist.”.

These amendments provide for a substantial revision to section 24 in order that the involuntary admission of children for psychiatric treatment can take place with the minimum number of examinations and court appearances as possible, consistent with safeguarding their rights. Where the text of the section as initiated requires the health board to make an application to a court prior to having the child examined, these amendments acknowledge the current reality that the majority of children in this position would be known to the health services and can be examined and assessed prior to any application being made.

The procedures set out in subsections (1) and (2) of this amendment will avoid repeated court appearances and should result in speedier decisions and fewer difficulties in securing the placement of a child once the order has been made. Subsection (3) as inserted by this amendment, provides for the situation where a health board cannot, for legal reasons, gain access to the child prior to making the application. This would happen, for example, where the parents of a child refused to consent to an examination. In those cases the court may order that the child be examined against the parents' wishes. The amendments to subsections (2) and (4) are consequential on the changes I have referred to.

The amendment to subsection (9) refers to cases where a health board is making an application for an extension of a child's detention order. In these cases also, an examination of the child should take place before the application of an extension order is made.

Amendment agreed to.

I move amendment No. 67:

In page 22, subsection (2), lines 8 and 9, to delete "On application to it undersubsection (1), the District Court (’the court’)” and substitute “Where a health board makes an application under subsection (1) without any prior examination of the child the subject of the application by a consultant psychiatrist, the court”.

Amendment agreed to.

I move amendment No. 68:

In page 22, subsection (4), lines 20 and 21, to delete "the evidence of the consultant psychiatrist adduced pursuant tosubsection (3)” and substitute “the report of the consultant psychiatrist referred to in subsection (1) or the report of the consultant psychiatrist referred to in subsection (3), as the case may be,”.

Amendment agreed to.

Amendments Nos. 69 and 70 are related and both may be taken together by agreement.

I move amendment No. 69:

In page 22, subsection (7), line 38, to delete "period of 3 months" and substitute "period not exceeding 3 months".

This returns to the discussion yesterday. This amendment proposes to delete "period of 3 months" and substitute "period not exceeding 3 months". Amendment No. 70 proposes to delete "period of 12 months" and substitute "period not exceeding 12 months". It is wrong to provide for a mandatory period. It would be better to provide for the option of a maximum period while also allowing for lesser periods if necessary.

I accept both amendments. The word "period" where it appears in amendment No. 70 should read "periods".

Amendment agreed to.

I move amendment No. 70:

In page 22, subsection (8), line 42, to delete "period of 12 months" and substitute "period not exceeding 12 months".

I move amendment No. 1 to amendment No. 70:

In page 22, subsection (8), line 42, to delete "periods of 12 months" and substitute "periods not exceeding 12 months".

Amendment to amendment agreed to.
Amendment No. 70, as amended, agreed to.

I move amendment No. 71:

In page 22, subsection (9), lines 44 and 45, to delete "unless it is satisfied that the child is still suffering from a mental disorder." and substitute the following:

"unless-

(a) the child has been examined by a consultant psychiatrist and a report of the results of the examination is furnished to the court by the health board concerned on the application of the board to the court under subsection (8), and

(b) following consideration by the court of the report, it is satisfied that the child is still suffering from a mental disorder.”.

Amendment agreed to.

I move amendment No. 72:

In page 22, subsection (10), line 47, after "court" to insert "in the best interests of the child and with due regard to the views of the child and of the child's parents".

I hope the Minister will accept the amendment. It states a principle and it would enhance the Bill.

Subsection (12) refers to the provisions of the Child Care Act, including a reference to section 24 of that Act, which reads:

In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall-

(a) regard the welfare of the child as the first and paramount consideration,

(b) in so far as is practicable give due consideration, having regard to his age and understanding, to the wishes of the child.

Subsection (12) applies those provisions to proceedings under this Bill.

I will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 24, as amended, agreed to.
Section 25 agreed to.
SECTION 26.

I move amendment No. 73:

In page 23, subsection (1), to delete lines 39 to 43 and substitute the following:

"approved centre or, if they are unable to do so and the clinical director is of the opinion that there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or the other persons, the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist the members of the staff of the approved centre in the removal by the staff of the person to that centre and the Garda Síochána shall comply with any such request.".

Amendment agreed to.
Section 26, as amended, agreed to.
SECTION 27.

Amendment No. 76 is related to amendment No. 74 and both may be taken together by agreement.

I move amendment No. 74:

In page 24, subsection (1), line 8, after "disorder," to insert "justifying his or her continued detention following involuntary admission under this Act (notwithstanding that the patient may have a mental disorder of a less serious extent, degree or form for which psychiatric treatment is appropriate),".

The purpose of the amendment is to clarify the position with regard to the disorder that was the cause of the person being in involuntary detention. It seeks to address the situation where a person has a mental disorder requiring treatment which does not require involuntary detention. Does the Minister understand my point?

I do. The problem with it is that an involuntary order would not be required. One would not need to involuntarily detain such a person who would not have a mental disorder of the extent which would necessitate a involuntary order. By definition, even with the Deputy's amendment, the person would "have a mental disorder of a less serious extent" but still would require treatment. The words "mental disorder" have a special meaning in this legislation. It is defined as a condition which is so severe that it warrants particular attention. I think the treatment would continue.

Is the Minister sure that the treatment would continue? Is that not the issue? What guarantee is there?

On a voluntary basis is it?

On a voluntary basis, yes, and again of course on the advice of the consultant psychiatrist.

Is there any danger that the person would end up, because the involuntary——

Earlier I looked at paragraph (b) of amendment No. 76, which is in the name of the Deputy. It states:

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.

I am prepared to look at introducing something like that on Report Stage. We would trust that the consultant psychiatrist would obviously not prematurely discharge a person, but I do not see any reason for not incorporating that view or principle in the Bill. I would be prepared to insert that on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 75:

In page 24, subsection (3), line 24, after "Commission" to insert "and the relevant health board and, where appropriate, housing authority".

This relates to what happens to these people once they are out in the community and if they are not being referred to sheltered or special needs housing. We are all aware of the high number of homeless people and, as far as one can gather, a high proportion of them suffer from psychiatric illness. It would be important that these cases are followed up because the link between the statutory agencies is weak and sometimes non-existent. This would be one way of ensuring this issue is addressed. We have all had problems with the way local authorities have dealt with people suffering from psychiatric illness.

I support the amendment. I raised the matter yesterday and I do not wish to be repetitive. A number of homeless people who are taken into a psychiatric institution for treatment are then rendered fit to go back into the community and end up on the streets. There should be some interim way of coping with this problem and I think this amendment would satisfy that need.

We are dealing with a number of issues here; we are dealing with the issue of discharge from approved centres and with the issue of homelessness. There are some fundamental issues which would arise in terms of this particular amendment, not least of which would be the right to privacy, that every patient being discharged from psychiatric hospital would have a right to privacy. In other words, it is not appropriate that we would be notifying every relevant health board and, in certain cases, local authority about people who are being discharged. There were 25,446 discharges from mental hospitals in 1998, of whom about 25,209 were aged 16 and over. That gives an indication of the scale of the matter. This would create an enormous administrative issue but the other issue is the right to privacy. The vast majority of those discharged would not have difficulties.

We, through the health boards and the RHAs in particular, are developing a strategy on homelessness, particularly regarding people with psychiatric illness who require follow-on psychiatric treatment. With the Department of the Environment and Local Government, which has primary responsibility for adult homelessness, we, through the health boards, have responsibility for youth homelessness. That is the context in which this should be dealt with and dealing with that issue does not fall within the remit of the Bill.

The only point I would make in that regard is that my amendment states that "where appropriate" the housing authority would be notified, not in every case. If people have homes, it does not make sense to notify the housing authority. The problem I would envisage is that there are people who are clearly falling through the system and we are all aware of that. Often it is easy for statutory agencies to pass the buck and say it is not their responsibility. This is particularly acute between health boards and local authorities and it is a real problem in terms of supporting people locally. I feel that the use of the words "where appropriate" addresses the Minister's concern.

Perhaps it would be better if the words "where appropriate" went before the words "the relevant health board and housing authority" in order that at least there would be some onus to make the connections with the statutory agencies and that the relevant health board and housing authority would not be notified about everybody but, where appropriate, they would be.

I will come back to the Deputy on Report Stage on the matter. Our basic desire is to ensure in certain key cases that the person is not left with nowhere to go.

Amendment, by leave, withdrawn.
Amendment No. 76 not moved.
Section 27 agreed to.
SECTION 28.

I move amendment No. 77:

In page 24, line 38, to delete "who is suffering from a mental disorder".

This amendment is designed to clarify the position regarding the rights of voluntary patients to be admitted to and treated in psychiatric hospitals and units. A fundamental principle of mental health policy is that people who are suffering from mental illness should be treated as far as possible in the same way as people suffering from any other illness or medical condition.

The Mental Treatment Act, 1945, provided for a complex bureaucracy surrounding the admission of voluntary patients to psychiatric hospitals. While this may have been justified in the 1940s, it is not appropriate today and the admission of a voluntary patient to a psychiatric hospital should be carried out with the minimum of legal formality in much the same manner as a patient is admitted to an ordinary general hospital. The amendment simply clarifies the position in that regard.

Amendment agreed to.

I move amendment No. 78:

In page 24, line 42, to delete "detained." and substitute the following:

"detained:

Provided that a person suffering from such a disorder shall not be admitted voluntarily to an approved centre, or remain at such a 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.".

First, I would like to hear the Minister's response.

I am prepared to accept this amendment as I agree with the principle behind it regarding the concerns that perhaps some voluntary patients within the system are not, in reality, voluntary. However, I would be reluctant to accept the amendment as presented here without having it examined by legal experts. The Deputy will be aware by this stage that the Bill is an extremely complex provision and we must ensure that every section in it means exactly what we want it to mean. We do not want, for example, to leave out any particular category of patient. However, I am amenable to accepting this amendment in principle and we will return to the Deputy with a correct wording on Report Stage.

I withdraw it but retain the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Section 28, as amended, agreed to.
Section 29 agreed to.
NEW SECTIONS.

I move amendment No. 78a:

In page 25, before section 30, but in Part 2, to insert the following new section:

"30.-(1) Where the Inspector of Mental Health Services is satisfied that a prima 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.".

The purpose of this amendment is to give the inspector of mental health services the power, where he or she 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, to initiate Circuit Court proceedings 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 that person. The amendment further proposes that the commission shall, within six months of its formation, publish guidelines to assist the inspector of mental health services in this regard.

I am trying to being about a situation where the inspector of mental health services can apply to the court, where a person has been abused, exploited or neglected or where he or she suspects that a person is in such risk, to place such a person beyond that exploitation, neglect or abuse and in the care of a person nominated by the court for the protection of the patient.

I am also suggesting that we would need some sort of guidelines to assist the inspector of mental health services in this regard and that the commission would publish those guidelines within six months of its formation. I hope the Minister will find it possible to accept the amendment.

I support the amendment. It is a way of dealing with people who are abused in a psychiatric institution. All of us have anecdotal evidence at least of abuse in such institutions in the past. It would protect people in such positions.

I understand the motivation behind the amendment. It was envisaged in the White Paper, published in 1995, that adult care orders would be introduced as part of the new legislation. However, it was decided not to proceed with such a measure. Further examination of this issue is needed, particularly in light of experience in the United Kingdom which has been mixed and has generated considerable debate. There is ongoing debate among professional psychiatrists, psychiatric nurses and social workers as to how such orders could or should work.

It was originally envisaged that the process for making adult care orders would be modelled on the Child Care Act, 1991. Under the Act, where care orders are granted by the court the health board is given light control over the child as if it were his parent and may do what is reasonable to promote the child's welfare. If an adult care order was to give similar rights to health boards in the case of adults suffering mental illness, would such powers constitute an abuse of the civil liberties of the patient? It is an important legal issue which requires further teasing out and consideration.

In Britain the experience of adult care orders has been mixed. There are fears that where such orders empower the health board to impose compulsory treatment it results in patients avoiding contact with services and, therefore, becoming homeless. The carer-client relationship between mental health professionals and their clients may be seriously damaged as a result and 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 people and in Britain concern has been expressed by social workers and service users about the degree of medical power associated with such orders. There have also been suggestions that service providers may experience pressure to use such orders inappropriately.

We accept that the care and protection of vulnerable people in the community is important but before key fundamental measures such as this are implemented the rights of service users and so on must be respected. This issue must be teased out further with the representatives of psychiatric professions, service user bodies and so on before more concrete proposals are brought forward on it.

First, I propose that the inspector of mental health services must be satisfied there is aprima facie case where somebody has been abused, exploited or neglected or is at risk. Second, he or she would have to apply to the court and satisfy the court that is the case. That is a strong balance and it would only apply where an third person was abused, exploited orneglected or is at risk.

John Costello, a solicitor with Eugene F. Collins and Co. and a council member of the Law Society of Ireland, wrote in the Irish Independent in July 1998: “The Government White Paper on the new Mental Health Act, July 1995, recommended that where a mentally disorder person was abused, exploited or neglected or at risk or abuse or exploitation then an authorised official of the health board could initiate a court application seeking the court’s approval to the placement of that person in the care of a relative, health board or voluntary agency . . . From my experience this legislation is now urgently required.” Mr. Costello is a leading expert in this area.

The White Paper was published five years ago. The opportunity to discuss this matter has been there for some time. We are enacting a mental health Bill but I do not know when we will return to this issue. My objective in raising this matter is not in any way to reduce the protections available to patients but to extend them where there is abuse, neglect or exploitation or such risk only where there is a prima facie case in the view of the Inspector of Mental Services and under the direction of the court to which he would have to apply. This would strengthen the protections for mentally impaired persons. Given that the matter was raised as far back as the 1995 White Paper I do not know why it is taking so long to come down on one side or the other or to mull over what is happening in other jurisdictions.

The evaluation of the UK experience has led to a change of heart to a certain extent on this or a fresh look at it or a more cautious approach before implementation. That is the key determinant. Circumstances change over five years as we discussed in a different context yesterday. It is wise to learn from the experience of others in other jurisdictions. I know the Deputy's motivation is to benefit people and patients but it is a complex issue which I wish to tease out further with the professionals involved and the service users before a decision is taken to in essence bring in adult care workers. I am not sure that the inspector of mental health services is the appropriate person. If one goes down this route, one needs to model it on the Child Care Act, 1991, as was envisaged originally, and have adult care orders.

Amendment, by leave, withdrawn.

I move amendment No. 78b:

In page 25, before section 30, but in Part 2, to insert the following new section:

"30.-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 next take effect if a motion is passed by either House of the Oireachtas rescinding the regulations within 90 days of the regulations being published.".

Chief Justice Finlay, in a court ruling 12 years ago, stated: "It is certainly desirable that consideration should be given to the introduction of rules of court appropriate to simple and practical procedures for dealing with elderly persons alleged to be of unsound mind where the person alone requires protection.". Mr. Justice Finlay was highlighting that the wards of court procedure is not suitable for cases where the personal welfare alone of the person with mental disability requires protection.

In the article to which I referred earlier John Costello stated he had come across a number of tragic family situations where the absence of suitable legal procedures had caused enormous stress. He went on to state the wardship legislation in Ireland is more than 125 years ago and is in urgent need of reform in certain areas.

To meet the concerns expressed by the former Chief Justice I propose that the new section would give the Minister power within six months of the enactment of this legislation to lay before the Oireachtas regulations "similar in effect to the rules of court which shall provide for simple an practicable procedures for dealing with elderly persons who are mentally impaired for the sole purpose of protecting the interests of such persons and that 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".

The Minister would have to satisfy both Houses of the Oireachtas that the regulations were simple, practicable and achieved the objective of the amendment.

I acknowledge the points made by the Deputy 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. In this regard, I signal my intention to bring forward amendments on Report Stage which will apply the provisions of the Bill to wards of court who are detained in psychiatric hospitals.

On the more general issue of wardship laws, which are contained in the Lunacy Act, 1871, my understanding is that the Department of Justice, Equality and Law Reform is preparing legislation to update and modernise that with desired effect.

Amendment, by leave, withdrawn.
Section 30 agreed to.
SECTION 31.

I move amendment No. 79:

In page 25, subsection (2), lines 10 and 11, to delete "and power to sue and be sued in its corporate name" and substitute "and it shall have the power to sue and may be sued in its corporate name".

This is a technical amendment.

Amendment agreed to.
Section 31, as amended, agreed to.
Sections 32 and 33 agreed to.
SECTION 34.

I move amendment No. 80:

In page 26, lines 14 and 15, to delete subsection (1) and substitute the following:

"(1) (a) The members of the Commission shall be nominated by the Minister and shall be subject to ratification by a Committee of the Oireachtas designated by Dáil Éireann and Seanad Éireann for that purpose.

(b) The Minister shall appoint to the Commission only those persons so ratified by the Oireachtas Committee, which shall havesole discretion on such ratification or otherwise.”.

I have tabled this amendment because I am concerned about the make-up of the commission. Essentially, the amendment states that the commission shall be nominated by the Minister but that the members will be appointed to the commission only after ratification of a committee of the Oireachtas. There needs to be a greater degree of Dáil reform where nominations to public bodies are subject to ratification by a committee.

I do not want to introduce contentious issues on Committee Stage but I have tabled this amendment because I am concerned at the manner in which the vacancies on the Irish Blood Transfusion Service were filled. I want to be assured that the members of the commission will not have to be friendly or associated with the Minister or be from a certain region of the country. We are giving this commission strong and innovative powers and I want to see it appointed at arm's length. That is the purpose of the amendment. The people nominated to the commission should come before an Oireachtas committee for ratification and should not be appointed until they are ratified. This is a principle which should be extended to many boards which Ministers are allowed to appoint following the enactment of legislation we approve.

I assure the Deputy that the intention is that the members of the commission would not be personal nominees of the Minister. The commission is based on a representative model. In other words, members will be appointed by the Minister on the nomination of a range of different organisations representing various interests in the mental health services. We are anxious to get a balance across the sector. They will be representative of the various interests involved in the mental health services. The remit of the commission is to foster high standards in the delivery of mental health service.

The Bill states that the commission will consist of ten members who will be appointed by the Minister and goes on to describe the organisations of which they will be representative. For example, section 34(3) states:

The members of the Commission appointed . . . shall be persons nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative such medical practitioners.

I have no problem with this. If people have concerns and want to tighten it up in terms of subsequent regulations, the Bill can obviously name the organisations which will have the power to nominate.

The Minister states that the nominees will be representative but the Bill does not state that.

It does.

Who decides who represents who?

Section 34(3) states:

The members of the commission appointed pursuant tosubsection (2)(b) shall be persons nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative of such medical practitioners.

This means the members in this case would be nominees of the organisations representing doctors. It would be the organisation representing nurses in the case of nurses.

That is not stated.

It is. Section 34(4) states:

The members of the Commission appointed pursuant tosubsection (2)(c) shall be persons nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative of such nurses.

The same is done for social workers in section 34(5), for psychologists in section 34(6) and for voluntary bodies in section 34(7).

What about section 34(2)(a), for example?

Does that refer to barristers?

Section 34(2)(a) and (f) are the only two not covered. One concerns the general public.

This is the point I am making. My concern is that vacancies on boards will be filled in the same manner as those on the Irish Blood Transfusion Service were filled where we gave the Minister powers which he used in an insensitive manner. It was an outrageous abuse of power.

I reject that totally. It is a separate issue. In fairness to the way this legislation has been laid out, that charge does not apply and could not be construed as applying to any Minister. Ministers across the board have traditionally appointed individuals but we have tightened it in this case. Eight of the ten must be nominated by organisations. We could ask the Law Society to nominate a solicitor for us if the Deputy wishes.

I have made my point.

Amendment, by leave, withdrawn.

Amendments Nos. 81 and 82 are out of order. The Deputy may wish to speak to them.

I wish to speak on amendments Nos. 81 and 84, both of which are in my name and that of Deputy Neville. I tabled amendment No. 81 to increase the number of members on the commission from ten to 14. It would be a good idea if there were two psychiatrists and two general practitioners and that is the objective of amendment No. 84. Is one psychiatrist and general practitioner enough? This is not something for which I would go to the wall but I wanted to raise the issue.

I will return to this on Report Stage. We are open on that issue. I would not go to the wall in opposing it.

Amendments Nos. 81 and 82 not moved.

Amendments Nos. 83, 111 and 121 are related and may be taken together by agreement.

I move amendment No. 83:

In page 26, subsection (2)(b), line 24, after “services” to insert “and with experience in the provision of such services through the medium of both official languages”.

I made the point about both official languages and the fact that we must also account for a new type of multi-cultural society. The amendment speaks for itself and I know the Minister is sympathetic to the view and I hope he accepts it.

I support the amendments.

As someone conversant with this, it is a haymaker of an amendment to hit me with. The Minister of State, Deputy Ó Cuív, is bringing in the official language of the equality Bill, the heads of which were approved by Government on 19 July. It is currently being drafted and one of its key features will be the obligations of 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. We feel that is perhaps the best avenue at this stage. He will create a new template for the State sector in terms of how citizens access services through the Irish language. It has implications for every Government Department and service.

That is very welcome but I would have thought it reinforced the argument for accepting this since it is presumably in line with the Minister of State's work.

We are working with his Department to work out the practicalities of this. It will be very comprehensive legislation that will leave nobody in any doubt as to our position on this and how we implement it subsequently.

I appreciate that, but surely the difficulty is the timeframe. The legislation may be in place but, as the Minister says, implementation may be difficult and slow. In this instance we have an opportunity to put it into legislation - the amendment states: "experience in the provision of such services through the medium of both official languages". It is not overly restrictive.

I am worried that it might be intially.

I would not see it that way.

Do we have the competence out there among staff?

I presume that would be the Minister's job.

I know, but if we put this into primary legislation now, we are also working out with the Minister of State, Deputy O Cuív, the logistics of what he wants us to do in terms of official language policy. Also, the official languages commissioner's job will be to work with the health service providers to make sure they skew their services in this direction. At the moment they are not and know that many people in Gaeltacht areas have complaints from time to time about children reared with Irish coming to general hospitals and there being nobody to communicate with them. In terms of consultant psychiatrists and nursing staff and so on we must be clear on this. I will look at this again on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 84 is out of order. Amendments Nos. 85, 86 and 87 are related and are to be taken together by agreement.

Amendment No. 84 not moved.

I move amendment No. 85:

In page 26, subsection (2)(c), lines 25 to 27, to delete “nurses with a special interest in or expertise in relation to the provision of mental health services” and substitute “registered nurses whose names are entered in the division applicable to psychiatric nurses in the register of nurses maintained by An Bord Altranais under section 27 of the Nurses Act, 1985”.

I have received a multitude of representations from various bodies and groups, each requesting that their own interests be represented on the Mental Health Commission. If we were so inclined we could have a membership of 30 or 40 on the commission, but obviously I feel that would not be productive. It is important the membership be kept fairly small so that it can conduct its business effectively and efficiently. Nonetheless there is merit in the arguments put forward that there should be more psychiatrists on the commission and also in the views put forward earlier by Deputy Mitchell. There is also merit in the view that the commission as it currently stands is dominated by professional interests with little or no representation for the users of the service, the patients themselves. I agree with Deputy McManus on this issue and am prepared to accept her amendment. There is also an argument for the inclusion on the commission of a representative of the health boards who, after all, are the providers of the majority of psychiatric services.

I agree with the Deputies that there is a strong case for re-examining the membership as I said earlier and I undertake to do so bearing in mind the points made today. I will return with suitable amendments on Report Stage. Regarding the amendments I have tabled, the first one clarifies that the two nurses who will be appointed to the commission will be registered psychiatric nurses as such nurses are a vital part of the multi-disciplinary care teams which are the model for a modern psychiatric service. The report of the commission on nursing recommended that nurses be more involved in the development of policy and this amendment is in keeping with that recommendation.

The second amendment provides that of the ten members of the commission, not fewer than four shall be women and not fewer than four shall be men. It has been Government policy for some years now that all appointments to State boards be made on the basis of gender equality.

Amendment agreed to.

I move amendment No. 86:

In page 26, subsection (2)(g), line 38, to delete “illness.” and substitute the following:

"illness,

(h) not less than 4 shall be women and not less than 4 shall be men.”.

Regarding amendment No. 87, I am advised that for technical reasons it cannot be moved and in order to facilitate the Deputy I am proposing an amendment to amendment No. 86 inserting the text proposed by Deputy McManus:

In page 26, subsection (2)(g), line 38, after “illness” to insert “(at least one of whom shall be a person who is experiencing or hasexperienced mental illness)”.

I thank the Minister. This is a significant improvement on the Bill and recognises that those suffering psychiatric illness have an enormous contribution to make. This is a real step forward and I welcome it warmly.

Amendment to amendment agreed to.
Amendment No. 86, as amended, agreed to.
Amendment No. 87 not moved.

Amendment No. 88 is out of order.

Amendment No. 88 not moved.
Section 34, as amended, agreed to.
SECTION 35.

Amendment No. 89 is out of order.

Nonetheless, I would like to raise this issue. I would like the commission or some body being empowered to ensure that adequate and well resourced facilities to deal with children with psychiatric illnesses are put in place in each health board area. I do not believe those facilities are there at present or are sufficient.

This is a very important issue. Our children are our future and we have a particular duty to them. Children with psychiatric problems need special care. Particular care must be taken to ensure there are services for children with such difficulties. The Minister will be aware that I am close to the attention deficit disorder sector and services for children in this area and those who are disturbed are abysmal. I will not go into the Justice Kelly issue as we could be here all day, but I know of two cases - I raised one with the Minister - where a young man in care of the health board with a psychiatric condition died through suicide, as did his friend. They were in the care of a health board and were psychiatrically ill. They were not treated properly and their parents were extremely disturbed by the level of treatment they got. One parent brought this to my attention and that of others to get the necessary assistance. They were advised of treatment but professionals differed on the treatment and at the end of the day the child took his own life. That is the level of service that is out there for children with psychiatric difficulties. There is such an urgency there that discussion of this matter is as important as any aspect of the Bill. I urge the Minister to examine what is happening to children very closely as it is an absolute disgrace.

I accept the reasons the Deputies raised this matter by way of an amendment. The amendment that was ruled out of order could not have been accepted in the context of the role and function of the commission. We had this debate earlier regarding the role of the commission, which is to promote, foster and encourage the maintenance of high standards in the mental health services. It is the responsibility of the Minister and Department of Health and Children to provide these services for children.

Currently we are giving priority to the further development of child and adolescent psychiatric services. The recruitment of consultant psychiatrists and other health professionals specialising in the care of children and adolescents with mental health problems has been accelerated. Each health board now has a dedicated child and adolescent psychiatric service headed by a consultant psychiatrist, which is progress. Since 1997 additional revenue has been provided for the development of consultant led multi-disciplinary teams. These teams usually comprise registrars, child and adolescent psychiatry, clinical psychologists, occupational therapists, speech and language therapists and social workers. A total of 35 consultant psychiatrist posts in child and adolescent psychiatry are now in place.

This year approval is being granted for the appointment of a further four consultant led teams to focus on specific areas such as attention deficit hyperactivity disorder. In addition a working group has been established by the Department to review child and adolescent psychiatry and to finalise a plan for the development of this service. Its terms of reference are to examine the current state of child and adolescent services, to carry our a needs analysis of the population from zero to 18 years for such services, to identify shortcomings in meeting those needs and to make recommendations on how child and adolescent psychiatry services should be developed in the short, medium and long term. As a priority I have asked the group to examine the need for in-patient psychiatric accommodation for children and adolescents, a key issue particularly for adolescents, and the provision of appropriate services for children suffering from attention deficithyperactivity disorder.

The group will be in a position to present an interim report to me by the end of this year. The needs analysis and the database will be key instruments in terms of developing a proper strategy and providing the necessary resources.

Will the committee examine the differences emerging between professionals on how to treat attention deficit disorder——

——and will it refer to what is happening in the UK and the US? I am not saying we should import them——

In terms of medication?

Yes, in terms of medication, for example, treatment with Ritalin. There is a big issue——

I agree.

There is a great conflict between the professionals as to how it should be treated. Professor Michael Fitzgerald has very clear views on how it should be treated.

He is on the committee.

Those views are being disputed by psychiatrists around the country, causing extreme stress to children and their parents. The issue should be dealt with as a matter of urgency.

That issue will be included in the interim report. At a seminar in Cork some months ago Professor Kewley from Cambridge gave an outstanding presentation. His basic point was that the debate in Ireland is nowhere near where it is at in the US. They are arguing about Ritalin in the US, while its usage here is negligible. We are only catching up in terms of attention deficit disorder. Many people did not acknowledge we had such a phenomenon. Professor Kewley said that the first question asked in each country where this arose was whether it existed as a condition. That is the first hurdle and I think we have got over it in Ireland. We must now move to provide treatments.

When I first raised this with our health board perhaps four or five years ago the consultant said I was daft, that it was the result of bad parenting and that there was no such thing as attention deficit disorder.

The same applied to education.

Amendment 89 not moved.
Sections 34 to 37, inclusive, agreed to.
Amendment No. 90 not moved.
Sections 38 to 40, inclusive, agreed to.
SECTION 41.

Amendment No. 92 is related to amendment No. 91 and both amendments may be discussed together by agreement.

I move amendment No. 91:

In page 30, subsection (1), line 13, before "the Minister" to insert "not later than one month after such submission,".

Amendments Nos. 91 and 92 relate to the publication of reports by the mental health commission. Amendment No. 91 requires the Minister to lay the annual report of the commission before the Houses of the Oireachtas not later than one month after he or she has received it.

Amendment No. 92 allows the commission to publish its own reports from time to time on matters it considers appropriate.

Amendment agreed to.

I move amendment No. 92:

In page 30, between lines 22 and 23, to insert the following subsection:

"(4) The Commission may publish such other reports on matters related to its activities and functions, as it may from time to time consider relevant and appropriate.".

Amendment agreed to.
Section 41, as amended, agreed to.
Sections 42 to 45, inclusive, agreed to.
SECTION 46.

I move amendment No. 93:

In page 32, after line 52, to insert the following subsection:

"(8) The Freedom of Information Act, 1997, shall apply to the Commission.".

I am seeking that the Freedom of Information Act shall apply to the commission.

I accept that.

Amendment agreed to.
Question proposed: "That section 46, as amended, stand part of the Bill."

I would like to signal my intention to bring forward on Report Stage a number of amendments in relation to tribunals as follows: to provide tribunals with the discretion to complete the review of a patient's detention even if the patient has been discharged if they have concerns about the validity of the person's detention. This deals with the issue of people being discharged before the 28 days. In the context of concerns about the manner in which it is done, we are proposing on Report Stage to introduce an amendment to give discretion to tribunals to investigate if they feel it is necessary to do so, and to ensure the privilege intended to be granted by the section covers legal representatives appearing before the tribunal. I also want to bring forward on Report Stage amendments concerning the composition of tribunals, particularly the issue of a lay person being on the tribunal. We have been examining this issue and have been receiving detailed legal advice in terms of the balance on tribunals and whether they should include a lay person.

Question put and agreed to.
SECTION 47.

Amendments Nos. 94 and 95 are out of order.

Amendments Nos. 94 to 96, inclusive, not moved.
Section 47 agreed to.
SECTION 48.

Amendments Nos. 97 to 101, inclusive, and Nos. 107 and 108 are cognate and may be discussed together.

I move amendment No. 97:

In page 34, subsection (4)(b), line 31, after “oath” to insert “or affirmation”.

I understand the Oaths Acts only apply to court procedures and that people would not have the option, unless it is specified, to make an affirmation rather than an oath. I hope the Minister will accept the amendment.

I have been advised that there may not be a need to accept the amendment, that paragraph 20 of the Schedule of the Interpretation Act, 1937, provides that a reference to an oath in an Act of the Oireachtas also includes a reference to an affirmation.

Is the Minister quite satisfied therefore?

Amendment, by leave, withdrawn.
Amendments Nos. 98 to 101, inclusive, not moved.
Section 48 agreed to.
SECTION 49.

I move amendment No. 102:

In page 36, between lines 23 and 24, to insert the following subsection:

"(5) References to any Act of the Oireachtas passed before the commencement of this section or in any instrument made before the commencement of this section, under such an Act of the Oireachtas to the Inspector of Mental Hospitals shall, on and after such commencement, be construed as references to the Inspector.".

On the enactment of the Bill the current office of the Inspector of Mental Hospitals will cease to exist and will be replaced by the new office of inspector of mental health services. However, a number of legal provisions will remain on the Statute Book which contain references to the Inspector of Mental Hospitals. This amendment is essentially a technical provision which will ensure that any such references will henceforth be interpreted as references to the new inspector as appointed under the provisions of the section.

Amendment agreed to.

I move amendment No. 103:

In page 36, subsection (5), line 27, to delete "with the powers of such an" and substitute "having the powers of that".

This is a technical amendment.

Amendment agreed to.
Section 49, as amended, agreed to.
SECTION 50.

Amendments Nos. 104 and 106 are related and may be discussed together.

I move amendment No. 104:

In page 36, subsection (1)(a), line 32, after “falls” to insert “and to visit and inspect any other premises where mental health services are being provided as he or she thinks appropriate”.

Amendments Nos. 104 and 106 relate to the powers of the inspector of mental health services to visit and inspect centres. Under subsection (1)(a) the inspector is already required to visit and inspect every approved centre at least once per year. An approved centre under the Bill is a place where involuntary patients are detained for psychiatric care and treatment, in other words, a hospital or other in-patient psychiatric facility.

There are other centres in which mental health services are provided such as day centres, day hospitals and low support hostels which would not be classified as approved centres. The current inspector visits and inspects these facilities and I would like to see that practice continuing. The amendment I am proposing will give the new inspector of mental health services the discretion to visit any premises on which mental health services are being provided as he or she sees fit.

Amendment No. 106 will allow the inspector to be accompanied on his or her visits and inspections by such professional advisers as he or she might consider necessary. What is envisaged here is that an architect or civil engineer might be required on occasion to advise on the structure of a building or a health and safety expert to advise on necessary precautions.

Amendment agreed to.

I move amendment No. 105:

In page 36, subsection (1)(b), between lines 42 and 43, to insert the following:

"(iii) the degree and extent of compliance by approved centres with any code of practice prepared by the Commission undersection 32(3)(e),”.

It would be important that the inspector would also have a role in monitoring compliance with codes of practice by approved centres. There is a fear that all manner of things may be put down on paper but that the book is then closed and nobody ever reads it again.

I will accept the amendment but, on a technical matter, the word "and" which precedes this amendment requires to be deleted and another "and" must be added to the end of the amendment.

Amendment agreed to.

I move amendment No. 106:

In page 37, subsection (2)(a), line 5, after “provided” to insert “and to be accompanied on such visit by such consultants or advisers as he or she may consider necessary or expedient for the performance of his or her functions.”

Amendment agreed to.
Amendment Nos. 107 and 108 not moved.
Section 50, as amended, agreed to.
Sections 51 to 54, inclusive, agreed to.
SECTION 55.

Amendment Nos. 109, 115, 116 and 119 are related and may be discussed together by agreement.

I move amendment No. 109:

In page 39, line 6, to delete "in writing".

When a serious procedure or course of treatment is due to be undertaken, it is very important that, if at all possible, a patient's fully informed written consent would be obtained. These amendments clarify that a patient's written consent is required in relation to the provisions which deal with psycho-surgery, electro-convulsive therapy and the long-term administration of medication. The amendment of section 55 will allow that in cases where less serious treatment such as physiotherapy or behavioural therapy is envisaged, a patient's verbal consent will suffice.

Amendment agreed to.

Amendment Nos. 110 and 113 are related and amendment No. 114 is an alternative to amendment No. 113. The amendments may be discussed together by agreement.

I move amendment No. 110:

In page 39, paragraph (a), lines 8 and 9, to delete “has certified in a form specified by the Commission” and substitute “is satisfied”.

Good practice in the administration of treatment to people with a mental disorder indicates that the patient's consent should be obtained whenever possible. The administration of treatment without a patient's consent should be seen as the exception rather than the rule. The insertion of a new section before section 56 will replace the existing section to make that position absolutely clear.

I understand that amendment No. 113 reflects existing practice within the mental health services and its inclusion in statute will provide an additional safeguard for patients. Subsection (2) of the amendment clarifies the legal position in regard to the treatment of people with mental disorders who have not yet been formally admitted to the care of a consultant psychiatrist. Subsection (3) provides that the provisions of this section will not apply to the administration of psycho-surgery, ECT or long-term medication because more stringent requirements are set out for those treatments in the relevant sections.

I am concerned that the obligation to obtain the patient's consent at all times should not impose an undue burden of paperwork on those who work in the mental health services. Accordingly, the requirement in section 55 that an official form be filled by the consultant on each occasion is being removed to be replaced by the obligation that a consultant would satisfy himself or herself that the patient is competent to give consent. This opinion would then be recorded in the patient's notes in the normal way.

As I read amendment No. 113, the consent of the patient shall be required except where, in the doctor's opinion, the treatment is necessary to safeguard the life or well being of the patient and the patient concerned is unable or unwilling to give such consent. The amendment refers to treatment which is necessary to safeguard the life or "well-being" of a patient, which is a matter of judgment. Surely the fact that consent is not required if a patient is unwilling to give consent goes against the entire principle of consent. A patient may feel, for perfectly justifiable reasons, that he or she does not wish to avail of behavioural treatment or even short-term medication. The inclusion of the two words "unable" and "unwilling" actually destroys the notion of consent.

If one considers the original wording of section 56 I believe the new section is a progressive move. We are removing the necessity to obtain a patient's consent for any treatment administered by or under the direction of the consultant psychiatrist responsible for the care and treatment of the patient. We are moving on from acarte blanche position.

The Minister could accept amendment No. 114.

I will return to this matter on Report Stage.

I have a problem with the words "well-being" and "unable or unwilling". The word "unwilling" means that a patient decides he or she does not wish to consent to a particular course of treatment. If that is the position, the logic of the Minister's amendment means that such consent will not be required in any event. Amendment No. 114 proposes the insertion of the words "unless the patient is capable of consenting and refuses to consent".

This can also happen in the area of general medicine and surgery. In some instances, for example where blood transfusions were required, doctors have had to make on the spot decisions although it has become clear subsequently that had consent been sought, patients would not have survived. The consultant or physician must discharge a duty of care which must be balanced with the rights of the patient. It is difficult to achieve that balance. I will re-examine this matter prior to Report Stage.

I can understand that where a person was unwilling to save his or her life, that consent would not be required but how does one define well being? That interpretation could vary from one consultant to another.

I am prepared to examine the words well being and unwilling before Report Stage.

The integrity of the patient is a very important aspect of treatment. Clearly, strong arguments exist in favour of a patient being able to decide whether he or she should accept medical treatment. One should be very slow to take that right away from anyone. If a person chooses not to be treated, that should be respected. My amendment proposes that consent would not be required unless the patient is capable of consenting and refuses to consent. Even if the patient is unwilling to consent, the Minister's amendment means that the doctor can overrule the patient if he or she feels a treatment is necessary for a patient's well being. We have sufficient examples of people having been filled up to the eyeballs with medication and having suffered or become addicted as a consequence. No doctor is infallible.

We have included quite stringent safeguards in regard to long-term medication, electro-convulsive therapy and surgery which are issues of concern among many of the families and parents I have met. I accept the Deputy's concerns and I am prepared to withdraw the amendment with a view to inserting it on Report Stage.

Amendment, by leave, withdrawn.
Amendments Nos. 111 and 112 not moved.
Section 55 agreed to.
Amendments Nos. 113 and 114 not moved.
Section 56 agreed to.
SECTION 57.

I move amendment No. 115:

In page 39, subsection (1)(a), line 21, after “consent” to insert “in writing”.

Is there a definition of"psycho-surgery"?

This means any surgical operation that destroys brain tissue, or the functioning of brain tissue, and which is performed for the purposes of ameliorating a mental disorder.

Amendment agreed to.
Section 57, as amended, agreed to.
SECTION 58.

I move amendment No. 116:

In page 40, paragraph (a), line 6, after “consent” to insert “In writing”.

Amendment agreed to.
Amendment No. 117 not moved.

I move amendment No. 118:

In page 40, between lines 17 and 18, to insert the following subsection:

"(2) The Commission shall make rules providing for the use of electro-convulsive therapy and a programme of electro-convulsive therapy shall not be administered to a patient except in accordance with such rules.".

Electro-convulsive therapy is much debated among those with an interest in mental health services. Some groups have cited reports of negative side effects. They believe that as a treatment it is over used, even abused, by some practitioners. Others argue it is the only effective treatment for certain types of severe depression and that it would be the treatment of choice for some patients in preference to medication. While views are divided on the issue, there is widespread agreement that ECT needs to be administered carefully in accordance with the established guidelines and protocols. These are already in place within the services. The Royal College of Psychiatrists in Ireland has issued a protocol and the Inspector of Mental Hospitals included a section on ECT in the guidelines published in 1998.

This amendment imposes a statutory obligation on the Mental Health Commission to make rules governing the use of ECT. It is envisaged that these rules will draw on the protocols and guidelines already in existence. The fact that the rules will have the force of law as opposed to the voluntary codes in existence at present should ensure additional protection for those undergoing ECT in future.

The Minister said that in some instances people would prefer this treatment to medication. Perhaps he will let me know, in relation to patients with mental disorders generally or people with mental handicap, what checks and balances are in place to ensure these patients are not continuously left on the same prescription drugs. What evaluation takes place in this regard? Does the service use in-hospital pharmacists to advise on the review of medicines under Statutory Instrument 152 which the Minister's predecessor published? Is it envisaged that pharmacists in the public arena would have a role in ensuring that people have a medicine profile or a valuation of the medicine they are on? What evaluation takes place in the psychiatric service to ensure patients do not continue on the drugs they were on last month or last year?

At present the Inspector of Mental Hospitals deals with this issue.

He has been extremely critical of that aspect and of the review.

I am concerned about this issue. Section 59 deals to some extent with the medication issue. We all have experience of people with this problem, and it is an issue about which I am concerned. Safeguards to deal with ongoing medication are included in section 59. This aspect is probably a consequence of the instutionalising of and absence of a multi-disciplinary approach to the treatment of people with mental health illness for such a long period. That is my observation as a lay person. We must move away from this approach as quickly as possible.

I suggest that the Minister might look at this issue because it needs attention.

I intend to discuss the issue with the professionals involved.

Amendment agreed to.
Section 58, as amended, agreed to.
SECTION 59.

I move amendment No. 119:

In page 40, paragraph (a), line 22, after “consent” to insert “in writing”.

Amendment agreed to.
Amendment No. 120 not moved.
Section 59, as amended, agreed to.
Sections 60 to 64, inclusive, agreed to.
SECTION 65.
Amendment No. 121 not moved.

I move amendment No. 122:

In page 45, subsection (2), between lines 31 and 32, to insert the following:

"(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,”.

This relates to the previous debate and complies with what the Minister intends to do in relation to the issue.

This goes back to the concern about the use and review of medicines in psychiatric hospitals. This is one of the functions of the inspector of mental health services.

The Minister has just explained that he will pay close attention to this matter and that his Department will work on the issue. It is not good enough to leave it to the inspector because he has raised issues of importance and expects to get a response. He has raised in a number of reports the issue of over-prescription and inappropriate prescription of medication to patients. Surely it is the role of the Minister's Department to set out by way or regulation standards and requirements. I am surprised the Minister will not accept my amendment as part of the list——

Section 59 includes special provisions whereby long-term medication will not be prescribed to patients without several consultants reviewing the decision.

No, I am saying the Minister is getting a general power to introduce regulations.

That covers what people eat for dinner but it does not set out regulations which have a statutory authority in terms of over-prescription of medication. I would have thought, given the inspector's constant problems with this issue and the fact that there are questions about people who died prematurely in psychiatric hospitals, some of which were highlighted in the media, the Minister would want to set out by way of regulation how this aspect will be operated in the future. I do not understand his problem with this issue.

What would the regulations say?

The regulations would deal with a problem that existed——

Let us be specific. What would they say to consultants? We are dealing here with the issue of clinical practice and so forth, therefore we must be practical. We have included in the primary legislation in section 59 much stronger measures than have been in place heretofore. In fact, no measures were in place up to now. Section 59 deals with safeguards in relation to prescribing medication. I will consider this issue.

Since the issue raised by the inspector is such a serious one and since the requirement for regulations has been accepted in many areas, including accommodation, food and care for residents and codes of practice for staff working in these centres, the actual medical practice, which is clearly defective in certain instances and has been maintained by medical practitioners, is the concern of the Department. It is a role of the Department to set out regulations for this area. If the Minister does not need to use this power, that is another matter. In a modern state, it is staggering that an inspector should have to make this point at all. It is extremely worrying when we have such a high standard of professionalism among doctors. This should be treated extremely seriously by the Department. The issue should be addressed by way of regulation. The Minister has more knowledge of the Department's expertise and involvement in this area. I am surprised that this is to be excluded.

I support Deputy McManus. Over the years, the inspector has been appalled by the lack of attention paid to this area and he has highlighted the issue again and again. After the 1998 report, one journalist went so far as to ask if the possibility of a charge of manslaughter should be examined in some cases.

The 1998 report was beneficial in the end.

The report was very progressively discussed inThe Irish Times for a period by Vin-cent Browne. People were appalled by what was happening and the topic was discussed on radio phone-in programmes. Concern is again being expressed following the 1999 report. This is a very serious situation which the Minister wishes to leave to the medical profession but on which the medical profession has failed, even though it has been highlighted by the media in a sensational, and rightly sensational, way.

It was dealt with effectively rather than sensationally.

I say sensational in the best meaning of that word.

I will examine this amendment again on Report Stage.

I will withdraw the amendment on the basis that it will be introduced again on Report Stage. These regulations could be introduced in consultation with the Royal College of Psychiatrists. They are not necessarily an attack on doctors. They are intended to ensure proper standards.

These are issues I would like to tease out between now and Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 123:

In page 45, subsection (2), between lines 31 and 32, to insert the following:

"(g) prescribe requirements as to the drawing up and carrying out by centres, so far as practicable in consultation with each patient, of an individual care plan for that patient including the setting of appropriate goals,”.

The purpose of this amendment is to ensure that there is an individual care plan as far as is practicable in consultation with patients, but not necessarily in every case. This would be a better managed provision for patients. I hope the Minister will accept the amendment.

I accept the amendment. I agree with the concept of individual care plans for each patient in the mental health services. That is the position under the Child Care Regulations, 1995. Those regulations prescribe that individual care plans should be put together for children. There is no reason the mental health services should not follow suit.

Amendment agreed to.

I move amendment No. 124:

In page 45, subsection (2)(h), line 35,to delete “Inspector” and substitute “Commission”.

This is a minor amendment of a technical nature. In practice the enforcement and execution of the regulations will be carried out by the inspector. However, he or she will be acting on behalf of the Mental Health Commission which will be the legal body responsible. The amendment is being made to reflect that position.

Amendment agreed to.
Question proposed: "That section 65, as amended, stand part of the Bill."

On Report Stage I will bring forward amendments suggested by the Mental Health Commission to attach conditions to the registration of approved centres.

Question put and agreed to.
SECTION 66.

I move amendment No. 125:

In page 46, subsection (1), line 23, to delete“section 11” and substitute “sections 11 and 21”.

This is a technical amendment.

Amendment agreed to.
Section 66, as amended, agreed to.
Section 67 agreed to.
SECTION 68.

Amendment No. 126 has already been discussed with amendment No. 54.

Amendment No. 126 not moved.
Section 68 agreed to.
Sections 69 to 71, inclusive, agreed to.
SECTION 72.

I move amendment No. 127:

In page 48, subsection (1), lines 17 to 20, to delete all words from and including "granted" in line 17, down to and including "care" in line 20 and substitute "refused unless the High Court is satisfied that the proceedings are frivolous or vexatious or that there are no reasonable prospects of such proceedings being successful".

This amendment would shift the onus of proof to be fairer to the patient.

I am in sympathy with the amendment. I would like to return to it on Report Stage.

Amendment, by leave, withdrawn.
Section 72 agreed to.
Section 73 agreed to.
Schedule agreed to.
Title agreed to.