Deputy T.J. Fitzpatrick was in possession on amendment No. 5a. Amendments Nos. 5a and 7c may be discussed together.
Estimates, 1981. - Health (Mental Services) Bill, 1980; Committee Stage (Resumed).
Debate resumed on amendment No. 5a:
In page 4, between lines 25 and 26, to insert the following:
"voluntary patient' means a person who, acting by himself or, in the case of a person less than sixteen years of age, by his parent or guardian, submits himself voluntarily for treatment for illness of a mental or kindred nature,"
(Cavan Monaghan): This amendment proposes to amend the definition sections of the Bill. This is a very important and necessary amendment because the Bill as it stands does not define a voluntary patient, although the Bill is structured on the treatment of patients as voluntary patients rather than as committed or detained patients. I made the case fairly fully that we should have a definition of “voluntary patient” in the Bill. The Minister has refused to accept the amendment without giving a good reason. We last discussed this Bill on 3 March, almost a month ago. Perhaps in the intervening time the Minister has taken time away from his other problems to consider this matter and I suggest that he now accept the amendment.
In relation to the point raised by Deputy Fitzpatrick on the question of defining the status of a voluntary patient, this Bill does not and was not intended to provide legal definitions of what constitutes the status of a voluntary patient. It is obvious that any patient in a psychiatric centre who is not detained in accordance with the provisions of this Bill is by definition a voluntary patient. A patient is either a voluntary patient or a detained patient; there is no question of an uncertain intermediate status. The provision in this Bill essentially relates to those problematical legal situations that may arise when persons have to be detained against their will for care and treatment. The Bill seeks to resolve these matters in the light of the enlightened views now prevailing with regard to the civil rights of persons detained in psychiatric institutions.
To define a voluntary patient in section 3 is to afford legal identity to a patient with whose admission to hospital this Bill is not concerned. I am determined that the person who voluntarily avails of the services form now on will be regarded in the same light as a voluntary patient in the general hospital setting. The preservation of this concept of the voluntary psychiatric patient is all the more essential given the increasing encouragement of people to undergo treatment in a non-institutional setting.
As the Deputy will realise, psychiatric treatment is associated increasingly with normal general hospitals. We do not want to define people in any way, other than those who come under the requirements of this Bill, as requiring detention. All patients will be similar to other patients in general hospitals and they will be voluntary in the same way as any other patient is voluntary in a general hospital. That is the position as I see it and I consider it would be undesirable to make a change.
(Cavan-Monaghan): There is provision in the Bill for making a detention order in respect of a patient who has entered the hospital as a voluntary patient should that necessity arise. A patient who has entered a hospital for treatment as a voluntary patient would, in those circumstances, become a detained patient. Does the Minister not agree that in that case it would be necessary to define a voluntary patient and to spell out the difference between a voluntary patient and a detained patient? There is also the situation where a person's state of health deteriorates or where a patient insists on discharging himself or herself before the consultants think it wise to do so and where it is decided to make a detention order. Surely it is desirable that these two categories of patient be separated in records, in definition and in language. That is all I am asking.
Perhaps the Minister will use this argument against me. There are two categories of patients involved. There is the person who goes for treatment voluntarily and there is the more seriously afflicted person who may have to be brought to the hospital under compulsory arrangements, who is detained there and who cannot leave. There is a difference between the two categories. Why not spell it out?
I am not quite adamant on this point. I see no difference between a patient attending for psychiatric care and a patient attending for any other care. Does the Deputy realise that 183,000 people are involved? He wants me to file all of them separately and to make them different.
(Cavan-Monaghan): They are filed already.
They are not different. They are ordinary people like anybody else and that is the whole point of the Bill.
(Cavan-Monaghan): There is a file on everyone.
There is a file on everyone in the ordinary way for hospital treatment. I am not prepared to do what the Deputy has suggested and that is the end of it. It is fundamental to the Bill and to the development of our psychiatric services and that is why I feel so strongly on this point.
The question of detaining a person who has entered the hospital voluntarily applies to everyone whether he or she is inside or outside the hospital. Any patient who develops a problem that requires detention can be detained in any circumstances, whether he or she is there as a voluntary patient or not. I do not see any relationship there. In the light of modern psychiatric care it is important that people who are now receiving care, as they should always have been receiving it, as normal health care, should not be stigmatised or branded in any way. I am not prepared to do that.
(Cavan-Monaghan): I do not propose to press the matter further. The Minister is not prepared to listen to arguments. He says he regards this section as fundamental to the Bill. It is a fact that as the Bill stood when it came before the House a patient could go into one of these institutions and, regardless of his condition or of his capacity to look after himself, he was at liberty to walk out at one minute's notice. However, public and medical opinion forced the Minister to yield on that. There is not much use in having a debate in this House if the Minister tells us that his mind is closed on the matter and he is not prepared to yield an inch. I merely point out another matter on which he has had to yield because of expert opinion. In that instance he brought in an amendment.
Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.
SECTION 4.
I move amendment No. 5b:
In page 4, line 28, after "being" to add "save in the case of a person who has previously received treatment at a psychiatric centre who shall be regarded, where it is deemed appropriate, as being ordinarily resident there".
(Cavan-Monaghan): Section 4 reads as follows:
For the purposes of this Act, a person of no fixed residence shall be regarded as being ordinarily resident at the place where he is for the time being.
This may have a bearing on the psychiatric institution a person would be admitted to if he needed psychiatric care. The section provides that where a person had recently been a patient in a psychiatric institution but who left that institution of his own accord — perhaps before he should have left it or before he was medically ready to leave it — and wandered into an adjoining health board area, he would then be brought to another psychiatric institution.
I do not think that is desirable. The purpose of our amendment is to add to the section, as drafted, the following: "...save in the case of a person who has previously received treatment at a psychiatric centre who shall be regarded, where it is deemed appropriate, as being ordinarily resident there." I think that is a helpful amendment and one that would mean that a person would then be treated in the institution where he or she was last treated. It improves the section.
This deals with a person of no fixed residence. It deems that person, for the purposes of the Bill, to be ordinarily resident at the place where they are for the time being. I do not accept the amendment and do not think it would effect an improvement in the Bill. It would be far too complicated to administer. Further it has implications — presumably not intended by the Deputy — of requiring that a person of no fixed abode should disclose where he or she had last been treated. Such people are often secretive by disposition and through force of circumstances and may not readily disclose such information. Apart from that, there is no time limit envisaged. If such a person was treated in a psychiatric hospital 20 years ago there would be little point in applying this requirement to him.
The real danger in this amendment is that one would be making the itinerant or traveller a citizen of the last psychiatric centre he or she had attended. Certainly, I would not like to do that.
(Cavan-Monaghan): With respect, I suggest that the Minister is going from one extreme to the other. It may well be that our amendment, as drafted, could be tightened up. I am not a parliamentary draftsman, neither is the Minister. First of all, regarding the Minister's argument that we would be making a person disclose, if you would not mind, that he or she has been in a psychiatric institution, surely there will be some records in the institution that the patient had been there. Surely he or she will not go in as a number and disappear as a number without there being any record of any description. As the Bill is drafted if, say, a person is a patient in St. Davnet's Hospital in Monaghan — suppose he happens to come from the Carrickmacross area of County Monaghan — and wanders out of the hospital, as he would be entitled to do, going back to his own locality, crosses into County Louth and it is then found that he requires further psychiatric treatment, he will then be brought off to the hospital in Ardee instead of being brought back to the hospital where he had been probably a week earlier. I do not think that is in the best interests of the patient. I do not think it is commonsense.
If the Minister thinks about it again he can tighten up our amendment if he thinks it goes back too far. If he wants to include the word "recently", or indeed "in the last 12 months", let him to so. But here the Minister took an extreme example and I have taken another one, that is, that the patient who has been in Monaghan, perhaps for quite a long time, is found, within a week of leaving, to be in need of further psychiatric treatment. But he happens to be in County Louth and is then brought off to another institution.
Then the Minister had the other bright suggestion that I was making such a person a citizen of the psychiatric hospital. I am doing no such thing. We are talking about this Bill only; we are not talking about citizenship, residential qualifications or anything else. We are talking about his place of residence for the purposes of this Bill.
We are talking here about persons of no fixed abode. We are talking also about the rights of persons of no fixed abode. I think the rights of such persons are similar to those of other people. Of course considerable administrative difficulty can arise. I appreciate that. For instance, especially if such persons are to be referred to the last psychiatric centre at which they received treatment, they may well change their name at that stage in order to avoid that association. I do not see any difficulty in treating people where they take ill. We do that for the population generally. Where people take ill they are treated within that catchment area. If it is necessary that they be moved to a regional hospital or in order to receive other specialist services, then such arrangements are made in their interest. The provision whereby a person of no fixed residence will be regarded for administrative purposes as being resident at the place where he or she is for the time being is the most suitable one all round.
(Cavan-Monaghan): Obviously, I am not going to get anywhere with the Minister on this amendment and, it would appear, on any other. That is regrettable. The argument I am advancing here is in favour of the patient, in ease of the patient. The patient about whom I am speaking may have spent quite a time in one hospital and may have left it before he was ready to leave. Probably he has got to know the staff in that hospital, the hospital surroundings. In my opinion treatment there probably would be much better than bringing him off to another institution. The Minister is merely complicating the issue although he thinks he is simplifying it. This is a small country. If a person of no fixed address is found wandering and in need of special care, the designated officers of the health service will know perfectly well that the individual in question was in some institution a sort time ago. I venture to suggest that if that person needs further treatment it is in his or her interest to be treated in that hospital. Of course, that might mean that somebody would have to think. Under the section, as drafted, one does not have to think as long as one has a map. All that is needed is a map where one will see that the person is found at such a place within a catchment area of a certain institution and one puts him in there. One need not think anything about him. Treat him as a person with no fixed abode; treat him as an itinerant. One does not have to think at all. One just consults the map, picks him up and puts him down like a tree; that is where he was found and this is where he goes. He is picked up off the map and put down there, without any thought that he may have been being treated by a GP, as well as by the staff of the institution which he has left. The Minister is not in good humour this morning. He should have another thought about this. According to any standard his attitude to this simple amendment does not make sense.
The Deputy would certainly not be in good humour if I were to register itinerants as citizens of their last psychiatric centre. The problems which he raises are not real. Under section 29, a patient may, in his own interests, be transferred to another psychiatric centre. As the Deputy says, this is a small country and if someone had been receiving treatment and was under particular care, there would be no problem, under this Bill, in providing for such transfer. I am happy that that provision is at present in the Bill and see no problem in effecting such a transfer, if necessary or desirable in the interests of the patient. What would happen to this person under the Bill as it stands would happen to anybody else, other than a person of no fixed abode.
(Cavan-Monaghan): I am glad the Minister is changing his argument and that he does appreciate the substance and force of what I am saying. With respect, the Minister is now admitting that there are certain circumstances where it might be in the patient's interests to be treated where he was before — it almost invariably would be. We are not complicating matters. We know where he was being treated but bring him to a new place and when he is there for some time he will be uprooted and brought to another place. The sensible thing would be, in the first instance, to bring the patient to the hospital where he was previously treated and may have been getting on reasonably well. If he was discharged from there, he must have been getting on reasonably well, unless he left of his own accord. Would the Minister have a look at this matter between now and Report Stage, although it does not appear as if he will?
A point which must be borne in mind is that while the person concerned may have been well when he left the psychiatric centre any length of time before, the fact that he requires attention must mean that he is particularly unwell at that stage and needs to be detained. We are talking here about detained. He would need to be detained in a psychiatric centre which is reasonably nearby. Subsequently, the normal course of care and treatment provided under section 29 can then come into play. In that way, both aspects are covered.
(Cavan-Monaghan): Would the Minister have another think about it and give an option when we are talking about detention? I agree that if a person is a couple of hundred miles from the institution in which he last was, that is another thing. An option should be given that a patient can either be brought to the institution where he was last treated, or to the institution in the catchment area where he now is.
Under section 29, the patient would have that option to request a transfer to a particular centre.
Is the amendment withdrawn?
(Cavan-Monaghan): It is hard to know where the old dictum “Not an inch” came from.
Amendment, by leave, withdrawn.
Sections 4 and 5 agreed to.
SECTION 6.
(Cavan-Monaghan): Section 5 provides that the Minister may make regulations in relation to any matter or thing referred to as prescribed or to be prescribed or as being the subject of regulations. Some of these are quite serious.
Section 6 provides that regulations shall be laid before both Houses of the Oireachtas and if they are revoked by resolution within 21 sitting days, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
I know perfectly well that this section appears in many Acts. Another type of annulling procedure or validating procedure in respect of regulations is that they do not become law until they have been approved by both Houses of the Oireachtas. The converse applies here. These regulations become law when made by the Minister and are valid unless annulled. If annulled, they are annulled without prejudice to anything done under the regulations between the date on which they were made and the date on which they were annulled. In this Bill the Minister should provide that the regulations will not become law until resolutions by the Dáil and Seanad have been passed approving of them.
The provision here—as, indeed, applies in most Bills of this sort—that the regulations may be annulled within the next 21 sitting days of the House, gives more than ample cover in relation to any regulations that may be made by any Minister in the future. The Members would be exceptionally remiss if they did not pay attention to any such regulations which were laid before the House. There is every opportunity under this arrangement which, as I say, applies in most Bills of this sort. There is a further opportunity of challenging a regulation and having it fully debated and annulled if necessary. Certainly, one can run into very long delays otherwise, because one then depends on the time and business of the House and is subject to all stances adopted by both sides of the House in relation to the distribution of time within the House. That procedure would not be desirable in a case like this. There is more than adequate safeguard in 21 sitting days.
(Cavan-Monaghan): The Minister makes the point that my suggestion would mean that it might take a long time to have the regulations approved by resolution of the House. That is not so. The Government have control of the time of the House and could order business in such a way that a Motion to approve the regulations would come before the House virtually as they think fit. The Minister is quite right in that it could take a long time to annual the regulations, because of two things. First, 21 sitting days is quite a long time—as the Minister knows when he is waiting for an increase in salary and must wait until it lies before the Dáil for 21 sitting days. Second, in so far as an order annulling the regulations is concerned, time for that must be found in Private Members' time. Since this Dáil was elected, there have been cases where the Government refused to provide Government time, which is very wrong. The Government will not provide time and that means the matter of annulling these regulations must be taken in Private Members' time. That is most reprehensible. The Minister's argument that this would take up time unnecessarily does not really hold water because the Government orders business. The Taoiseach announces the order at the beginning of each day and there is nothing to prevent the Government ordering this particular business as and when required. It is, of course, the Opposition who would want to annual but it is not good enough that, because it is the Opposition, the work must be done in Private Members' time.
Furthermore they would be annulled without prejudice. Going through the Bill one finds quite serious things being done by regulation. I am against that in principle and I suggest the Minister introduces an amendment on Report Stage to cope with this situation.
All health legislation is based on the same principle and, if I were to do what the Deputy suggests, I might possibly be creating great administrative difficulties for future Ministers.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
(Cavan-Monaghan): This section repeals existing Acts. The Mental Treatment Act, 1945, is repealed in toto. That Act contains 284 sections. It also repeals the Mental Treatment Act, 1953, which contains six sections and two Mental Treatment Acts of 1961 one of which contains 16 sections and a Schedule and the other two sections. It is obvious we are making major alterations in our mental health treatment services by replacing a huge volume of legislation by a Bill containing 49 sections and a Schedule. I would not expect the Minister to detail the contents of the four measures being repealed but perhaps he would give us a synopsis of the differences between the 1945 Act, which he is repealing, and this measure. Would he tell us briefly the proposed changes? What was provided in the 1945 Act which is not considered necessary now? We should have that on the record.
There is one amendment relating to superannuation under the Schedule and I shall put down an amendment later. It is only in that sense that the amendment is carried forward. As the Deputy said, advances in the treatment of mental health have been spectacular and attitutes as a result have changed dramatically in recent years. That is the reason why there is need now to replace existing legislation so that regard can be had to modern developments. The new provisions can be classified under three headings: First, registration and supervision of the operation of centres for the mentally ill; secondly, the regulation of admission and discharge procedures and, thirdly, the safeguarding of patients against unnecessary detention.
(Cavan-Monaghan): I was hoping the Minister would tell us what substantially in this huge volume of 284 sections is not being reenacted.
That would really be a Second Stage debate.
(Cavan-Monaghan): I agree.
The changes are represented in the measure before the House. They lead to a considerable degree of simplification.
(Cavan-Monaghan): I do not think there is anything very new in this measure. Usually when something new is introduced there is a note to the section. As the Minister said, this might be more appropriate on Second Stage but I do not agree entirely with that because this is the section which repeals all the Acts I mentioned. If we wanted to we could go into detail as to what is being repealed but that would be very laborious and the debate could go on for days. I have no desire to delay but the Minister should be in a position to tell us briefly those parts of the 1945 Act which are not considered necessary now.
My Second Stage speech went into all that in fair detail and, if the Deputy wishes, I will read that speech for him. On the other hand, he could read it for himself. That might save him some difficulty. I said:
The impact of the various Health Acts upon the administration of the psychiatric services has been significant in the process of integrating psychiatric and general medicine, as indeed, was acknowledged in the report of the Commission of Inquiry on Mental Illness in 1966.
The provisions made in the Mental Treatment Act, 1945, in regard to the reception and treatment of patients remain basically the same as when they were introduced. I should, however, make it clear that the provisions of this Act were enlightened for their time—in particular the provision made for the reception of persons for treatment on medical certification, without the intervention of a judicial authority, was a most advanced change which has subsequently become the accepted procedure in many other countries.
In the course of the 35 years since the introduction of the Mental Treatment Act, 1945, there have been many changes in the theory and practice of psychiatric medicine. Such changes have come about in part by new therapies which have been made possible by the various chemo-therapeutical discoveries made and also by a deeper understanding of the aetiology of psychiatric illness and the needs of the mentally ill. The emphasis in treatment has shifted significantly, one might almost say dramatically, from segregation and long term detention towards a modern concept of treatment and speedy rehabilitation in informal settings which are as free and unrestricted as individual circumstances permit. Many patients are now being treated successfully while living at home. Community services such as out-patient clinics, day hospitals, hostels, family care and domiciliary consultation have been provided and developed. In addition, the psychiatric services have the capacity to provide intensive in-patient treatment, in many cases in short-term acute units in, or in association with general hospitals.
I can only refer the Deputy to various passages of the Second Stage speech.
(Cavan-Monaghan): I do not propose to drag this out any longer, but when we have a Bill which repeals several huge Acts it is not too much to expect the Minister to say which parts of these Acts are being repealed and which parts are being retained. The Minister waffled a lot in his Second Reading speech and anybody reading the debate would not know even in a general way which Acts we are repealing, although we are repealing some substantial enactments.
There are many changes in the terms of our approach, for instance, the question of a person of unsound mind. That has disappeared. The refusing of permission has been introduced as a new measure. There are three areas which I mentioned in regard to the regulations on admission and discharge and the transfer of dangerous patients without court intervention. These are new provisions. Otherwise, the Bill principally provides for simplification of the legislation. There are the questions of registration of patients and the safeguarding of patients against unnecessary detention, which brings in the review board.
(Cavan-Monaghan): The Bill deals with the admission and discharge of certain categories of patients. What I am interested in getting, and what I am afraid I will not be given, is a review of the enactments we are scrapping.
These matters will come up on Deputy Boland's amendments and they will be dealt with individually.
(Cavan-Monaghan): That is the line we get from Deputy Lenihan.
There is the matter of the 72-hour notice which was provided for in the old Act. We propose to amend that to 24 hours—Deputy Boland wanted to keep the 72 hours. A series of Opposition amendments will come up later which in many instances would bring us back to aspects of the old Act.
(Cavan-Monaghan): If I had been here for the Second Stage and had asked all these questions I would have been told they were matters for Committee Stage.
If the Deputy wishes, I will give him a full report of the Second Stage.
(Cavan-Monaghan): Now on Committee Stage I am being told these were matters for the Second Stage. We are repealing six enactments and I am entitled to be told which. Reduced to writing, one page of foolscap would be sufficient, but I have not got it. Needless to say, I have read the Minister's Second Stage speech but I have found it does not give the information I have been looking for and that the people have been looking for.
Question put and agreed to.
SECTION 8.
Amendments Nos. 5c, 11d and 11e are related. Amendment No. 11e is consequent on 11d. Therefore these four amendments can be taken together.
(Cavan-Monaghan): I move amendment No. 5c:
In page 5, subsection (4), line 22, after "12 (5)", to insert, "18"
This is the section which deals with offences and penalties for offences. The amendment is to subsection (4) which deals with summary offences as distinct from subsection (1) which deals with indictable offences. Subsection (1) states:
A person who does anything which is declared by section 10 (1), 12(1), 17 (1) or 44 (2) to be unlawful shall be guilty of an offence under this Act and shall be liable on conviction on indictment to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both the fine and the imprisonment.
Section 10 (3) is as follows:
It shall be the duty of the person maintaining a registered psychiatric centre to ensure that any directions issued or conditions prescribed by the Minister are complied with.
Section 12 (5) states:
It shall be the duty of the person maintaining a psychiatric home to allow it to be inspected by a designated officer of the health board and to afford that officer such facilities and information as are required by him for that purpose.
Finally, Section 36 (3) states:
It shall be the duty of the person maintaining a centre or home to afford to the person making the inspection such facilities and information as he requires for the purposes of his inspection.
As the subsections stand, those are summary offences which expose the person who is guilty of a breach of the subsection to conviction in the District Court and a fine of £500. Deputy Boland's amendment proposes that in addition a person who fails to comply with sections 18 and 45 should also be guilty of an offence. Section 18 is a short section which reads as follows:
Where, after refusal of an application, a further application for a recommendation for reception is made in relation to the same person within a period of 3 months after the date of the previous application, the applicant, so far as he is aware of the facts relating to the previous application and its refusal, shall state these facts to the registered medical practitioner to whom the application is made.
The applicant may not be the patient — it could be one of a variety of other people who are mentioned. Section 45 imposes a duty to report certain matters to the Minister and reads as follows:
Immediately upon the occurrence in a district, special or registered psychiatric centre of any of the following matters the medical officer in charge of the centre shall give a report thereon to the Minister and to the chief executive officer of the health board for the area where the centre is situated—
(a) an injury, other than a minor injury, to a person undergoing care and treatment in the centre or the death of any such person otherwise than from natural causes,
(b) an alleged assault upon any such person,
(c) any other matter of serious importance to the welfare of such persons.
It is difficult to see any difference between sections 45, 10 (3) and 12 (5). Section 12 (5) states:
It shall be the duty of the person maintaining a psychiatric home to allow it to be inspected by a designated officer of the health board and to afford that officer such facilities and information as are required by him for that purpose.
As I said, the object of Deputy Boland's amendment is to include the directions in sections 18 and 45 and to declare that failure to comply with them shall be an offence carrying the same penalties as are laid down in section 8 (4).
The effect of the Deputy's proposed amendment is to equate an applicant for a recommendation for reception, who in most instances would be a member of the public, with a professional person of standing in the services and on whom a penalty would be imposed for neglect of duty. We do not want to put a member of the public who makes an application in the same position as a professional person in relation to the penalties. I would be reluctant to do so, given the difficult emotional circumstances and practical circumstances which can surround such an application in the first instance. The application is often made by a person who has the interest of the patient in mind and is only involved in the short term and has no further involvement beyond making the application. If I were to accept the Deputy's amendment it would have the effect of making it a duty on the public as well as on professional people involved to comply with the conditions and this would automatically make them liable to a penalty if they do not do so. I want to avoid this and that is why I am not prepared to accept the Deputy's amendment.
The Deputy spoke about failure to notify in section 45. I am putting an amendment down for that, amendment No. 6, which we will come to later.
(Cavan-Monaghan): There is a lot in what the Minister says. But I do not think that the person involved in section 18 would always be a member of the public. He would, in certain cases, be an authorised officer or an officer as set out in the Bill.
In most cases the initial stimulus comes from lay people. Even if that were not so I would be reluctant to make lay people liable to such penalties in any case.
(Cavan-Monaghan): Section 8, as it stands, imposes duties and provides for penalties on lay people and certainly on professional people and people who are involved in these institutions. Am I right in thinking that one of the classes of people covered by section 18 is the authorised officer, which the Minister has defined in section 3? The definition of “authorised officer”, as amended, is an officer of a health board who is of a class designated by the Minister to be an authorised officer. I cannot see any difference between the authorised officer and the people who would be affected by section 10 (3), 12 (5), and 36 (3).
The point here is that the authorised officer only becomes involved because there is someone in distress or if an urgent situation arises and arrangements have to be made in those circumstances. He would not necessarily be au fait with all the information subsequently relating to the case on the technical aspects.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 5, subsection (4), line 22, to delete "or 36 (3)" and substitute ", 36 (3) or 45".
This amendment is necessary to correct an oversight in drafting. As the Bill stands, it would not be an offence to fail to report certain matters to the Minister and the chief executive officer of the appropriate health board. These matters are specified in section 45 of the Bill. They are obviously ones in which it is necessary to make it an offence if there is failure to report matters like alleged assaults on patients.
(Cavan-Monaghan): Whose duty is it to report these matters to the Minister? Who would be covered by the section? Who would be guilty of the offence? Who would be liable to the penalties?
The medical officer in charge of the psychiatric centre would be the person responsible.
(Cavan-Monaghan): I will continue to play devil's advocate. Is this new? Is it usual to create criminal offences like this in regard to civil servants, members of health boards or semi-State bodies for failing to do their duty? I can see it applying to the Official Secrets Act and a breach of that Act should be properly dealt with. I should like to know if there is a precedent for this? Have we, in any other legislation, made it a criminal offence for a civil servant to fail to carry out his duties? That is what we are doing here.
Essentially this was in the old Act in any event. The section replaces section 272 of the Mental Treatment Act, 1945, which reads as follows:
Immediately upon the occurrence in a mental institution of any of the following matters, a report thereon shall be given to the Minister:—
(a) an injury to a patient in the institution (including an injury existing on reception),
(b) an assault or alleged assault upon a patient in the institution by a member of the staff,
(c) an outbreak of infectious or epidemic disease in the institution, whether affecting patients only, staff only, or both,
(d) an outbreak of fire in the institution,
(e) any other matter of serious importance to the welfare of the patients.
The new provisions say that a report of the matter must be sent to the chief executive officer of the health board in addition to the Minister for Health. Existing injuries on reception and minor injuries to the person while undergoing treatment are not required to be reported. Deaths, other than from natural causes, must be notified. Existing legislation requires that assaults or alleged assaults on a patient by a member of the staff be notified. The new provisions are more generalised in that respect. The requirement that the outbreaks of infectious or epidemic disease be reported has been dropped as this is covered by the law on infectious diseases.
(Cavan-Monaghan): Lest I am accused of blowing hot and cold, my amendment simply proposed to apply section 8 to everything that was in the Act and was appropriate to be applied to it or not have it there at all. I have the greatest reservations about creating criminal offences of this sort. I can simply and clearly understand section 8 (1) because it simply creates the offences of running unregistered psychiatric institutions. I call them that for want of a better word. That is quite right and should be done. These places should be controlled and the Minister is perfectly right to do so. He says that anybody who runs a psychiatric centre without the approval of the Minister or anybody who runs a registered psychiatric home without a licence from the Minister or anybody who runs a place of detention for psychiatric patients in contravention of section 17 shall be guilty of an indictable offence, which is a very serious offence. It involves trial by judge and jury and is liable to a fine of £10,000. I agree with that but I have the greatest reservations about including the type of matter which is in section 8 (4) and relates, for instance, to section 10 (3), which says it shall be the duty of the person maintaining a registered psychiatric centre to ensure that any directions issued or conditions prescribed by the Minister are complied with.
The Minister will prescribe dozens of regulations and the persons who will be responsible for carrying them out will be employees of the health boards in many, if not all, cases. Is it reasonable to make the failure to comply with those regulations a criminal offence, punishable by a fine of £500? Surely the way to deal with that is through the internal administration of the institution, to hold a departmental inquiry or, if the matter is very serious, another inquiry. Unless there is criminal negligence, there should not be a criminal prosecution. I do not have the regulations here, but if I had I am convinced I could show an absurdity where an employee of the health board could be brought before the court, prosecuted for failure to carry out a regulation and fined £500 — section 10 (3). Section 12 (5) says:
It shall be the duty of the person maintaining a psychiatric home to allow it to be inspected by a designated inspector of the health board ...
There may be something in favour of that because it applies to the person in charge of the psychiatric home. If he obstructs the inspection, that is a different thing. Section 10 (3) seems to be quite different and section 36 (3) also deals with inspections. Section 45 imposes a duty as follows:
Immediately upon the occurrence in a district, special or registered psychiatric centre of any of the following matters the medical officer in charge of the centre shall give a report thereon to the Minister and to the chief executive officer of the health board for the area where the centre is situated—
I agree that if there is an alleged assault upon any patient in the institution it should be reported to the chief executive officer of the health board and to the Minister. I am not questioning that for a second, but what is an "alleged assault"? If the medical officer in charge of the institution does not report the alleged assault or any other matter of serious importance to the welfare of the patient — and that is a discretionary matter, too—to the chief executive officer and to the Minister, he will be guilty of a criminal offence, may be brought before the criminal court and subjected to a fine of £500. In this day and age that is not reasonable. That should be dealt with by internal administration. This is very near to saying that if a surgeon does not carry out his professional duties properly he will be brought before the District Court, prosecuted and fined. That is going too far.
The Minister has inspectors who may investigate these matters, but to bring this into the realm of criminal law is wrong unless an inquiry discloses a criminal offence. Take the Whiddy disaster or the Stardust disaster. Inquiries are being held and if, in the course of those inquiries, acts involving a breach of the criminal law are disclosed then criminal prosecutions will be brought. Here all that has to happen is that somebody is assaulted and, if a report is not made to the chief executive officer and to the Minister for Health, that is a criminal offence. The doctor in charge will be prosecuted and brought before the court, the same as he would for drunken driving, larceny or any other criminal offence.
I do not think the Minister has appreciated up to now the importance of this point. As he pointed out, section 272 gives a litany of things which must be done and presumably other sections of this vast Act, about which I was unsuccessfully trying to get information, make omission an offence. The Minister took considerable pride in scrapping this Act, saying it was out of date and should be got rid of. I respectfully suggest he get rid of that particular section where through an oversight, a person could be subject to criminal law. Perhaps such a person could be removed from office or demoted, but he certainly should not be subject to criminal law.
We are dealing with the section rather than the amendment.
(Cavan-Monaghan): No. We have added sections 10 and 45.
We must dispose of the amendment first and then we can fully debate the section.
There are a number of areas in which the same kind of provisions apply. A doctor or pharmacist can be guilty of a criminal offence under the Misuse of Drugs Act. Under the Health Acts any person making a false statement for the purpose of obtaining a service could be guilty of a criminal offence and liable on conviction to a fine, which in 1970 was £100, or to imprisonment for a term not exceeding three months, or both. The figure has since been updated by other legislation.
(Cavan-Monaghan): What was that for?
For making false statements. In general this kind of provision is not unusual in legislation. Especially in the area of psychiatric illness and the control and management of a psychiatric centre where there has to be special power in the hands of those who control the centre, it is absolutely essential that the Minister be well informed and he can then decide what line should be taken. The Minister must know what is happening and the public would be ill at ease if he were not so informed. Normally there is no problem in this case. It is taken as a normal regulation which must be complied with and, to our knowledge, it is complied with. We are informed on any occasions, which are rare, when it is not complied with. It is essential that the Minister is informed and, consequently, I am proposing this amendment.
(Cavan-Monaghan): The Minister relies on certain provisions of the Misuse of Drugs Act and that is deliberate. The Minister also relies on provisions of the Health Acts in relation to the making of false statements for the purpose of getting benefit under those Acts and I can understand that. However, the Minister is invoking the criminal law to enforce conditions of employment. Over the years we have had inquiries held into the discharge of duties by various people. There are two types of inquiry, a public inquiry which is an elaborate affair and is not necessary in most cases and a departmental inquiry which is held pretty often into the failure of public servants or health board employees to carry out their duties. I do not think it is reasonable to include the amendment suggested by the Minister. Indeed, it is not reasonable to transfer section 272 into this Bill. Has section 272 ever been invoked? It is antiquated. It should not be included because it is calculated to be mischievous and to make employees and professional people unhappy. Section 45 states that the medical officer in charge shall make such reports and if he does not he shall be brought before the courts. If found guilty that person will be convicted and fined. The proper way to deal with a serious matter is to hold an inquiry and the person in question, if found to be at fault, should be removed from office but that person should certainly not be subjected to the criminal law as is proposed in section 8.
I am not aware of any instance when this provision has had to be used and that could be one of the good reasons why we should ensure it stays there. I have a duty to protect the people in our psychiatric institutions. On other occasions the Deputy, and his colleagues, would be pressing me to protect the rights of such defenceless people. This protection existed and I am proposing a minor drafting amendment. My amendment seeks to ensure that the protection continues. It is a necessary provision to protect the rights of individuals who cannot protect themselves.
(Cavan-Monaghan): Every person who goes to hospital, certainly to a surgical hospital, is, to a certain extent, a helpless individual. Every person who is put under an anaesthetic is as helpless as if he or she did not know what is going on. Is the Minister arguing that the criminal law should be extended to cover activities in all hospital theatres? I do not believe it should. It is not in keeping with the dignity of the patient or the professional people who look after patients. I do not suggest that those who do not discharge their duties properly or do not carry out regulations should be permitted to continue to hold positions of responsibility or importance. They should be removed from office. Only when they are guilty of a breach of the criminal law should they be brought before the courts. A person who misjudges the seriousness of an alleged assault or an injury or is guilty of a vague offence under section 45 (c) should not be charged. That subsection states:
any other matter of serious importance to the welfare of such persons.
That is a gloriously vague statement. It is not reasonable to include that in the criminal code. I do not wish to be misrepresented in this regard because I have absolute regard for the rights of patients in all hospitals. I have regard for the responsibilities of professional people towards their patients but I do not believe that the way to enforce those duties and responsibilities is to invoke the criminal law, making criminals out of such people.
The Minister may say that it is not the intention to do that or that it has not been done. I accept that it has not been invoked but it is possible that the Department did not realise such a provision existed.
It is right that such reports should be made and that inspections be carried out. It is right that there should be proper visiting committees. If, in the course of their visits, they gain information regarding an assault on a patient or regarding a patient being injured or any matter of serious importance to the welfare of the patient they should bring that to the attention of the Minister and the CEO of the health board concerned. If a person is found guilty of a dereliction of duty that person should be sacked. However, it is another matter to create criminal offences as proposed under the section. It is not in the interest of anybody to do that. We should not include this precious bit of nonsense.
Cases are currently reported. The measure is an effective provision and I am not prepared to remove it from the Bill because it relates to alleged assaults and injuries on defenceless people. That is all I wish to say about it. The Deputy may wander on talking ad nauseam about the situation but the essence in this is that we have a duty to protect the rights of people in such a situation. The measure is effective and I am not prepared to drop it.
(Cavan-Monaghan): If I call a vote on this, I cannot raise it on Report Stage?
That is correct.
(Cavan-Monaghan): I propose to put down an amendment on Report Stage.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
(Cavan-Monaghan): I move amendment No. 6a:
In page 5, subsection (4), line 42, after "inspection" to insert "by any member of the public".
Section 9 says:
For the purpose of this Act the Minister may, at the request of a health board, designate as a district psychiatric centre any hospital or unit....
Section 9 (4) says:
Every health board shall keep in a prescribed form a register of district psychiatric centres maintained by the board and shall make it available for inspection during office hours.
Deputy Boland's amendment is a simple amendment which says that it shall be available for inspection "by any member of the public". It could and I suppose will be argued that it is wide enough to include that, but I think that it should be put beyond doubt by writing in the words "by any member of the public" if that is what is intended, and I imagine it is because otherwise it would be valueless. Therefore, I suggest that it be amended by the inclusion of those words.
I have no objection at all to this amendment.
(Cavan-Monaghan): It is time we brought the champagne in.
We will get you more water.
There is no champagne on the menu.
Having said that, I am advised that the proposed amendment is completely unnecessary, which is what the Deputy himself is suggesting might be the case, in that the section as drafted provides implicitly for inspection by the public. It is not necessary, therefore, to express or state that. I do not mind. I have no objection at all to it. I do not think that my accepting it will cause any problems. The Deputy knows how reasonable I am and I am prepared to accept it if the Deputy wishes. I am telling him what the draftsman said about it, a view which to some extent I feel the Deputy shared.
(Cavan-Monaghan): If it does no harm we will leave it in.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
Amendment No. 6b in the name of Deputy Boland. Amendment No. 11 is related and amendments Nos. 11a and 11b in the name of Deputy Boland are alternatives to the Minister's No. 11. We will move amendment No. 6b and debate amendments Nos. 11, 11a and 11b with it, that is, four amendments together.
Amendment No. 11 is designed to meet the objective of Deputy Boland's amendments. It has been designed by the draftsman to give the flexibility necessary in designating the role private psychiatric hospitals can play.
It is only explaining the position. The one we are on at the moment is 6b, if the Deputy wishes to move it.
(Cavan-Monaghan): I move amendment No. 6b:
In page 5, after line 48, to insert the following new subsection:
"(2) Included in any registration under this section shall be a statement of the area to be served by the registered psychiatric centre.".
This is an amendment to section 10 which states:
(1) It shall not be lawful for any person other than a health board to operate any premises for the detention of persons requiring care and treatment for mental disorder or to describe or hold out any place as such unless it is approved and registered by the Minister in accordance with regulations made by the Minister under this section.
Deputy Boland's amendment No. 6b proposes to add a new subsection. I have just read section 10 (1) and the amendment proposes to add a new subsection, to be known as subsection (2), which reads:
"(2) Included in any registration under this section shall be a statement of the area to be served by the registered psychiatric centre.".
Deputy Boland thinks, and I agree with him, and indeed it would appear from discussions we have had to date, that it is necessary that the area to be served by the centre should be specified and Deputy Boland's subsection (2) does that. The Minister apparently will be moving amendment No. 11 in which he proposes to delete part of subsection (1) and to add:
‘detain a person under this Act elsewhere than in a district psychiatric centre designated for the area in which he ordinarily resides or in a registered psychiatric centre approved in respect of such an area or generally.'.
That would appear to be one way of saying the same thing as Deputy Boland has been saying. I would like to hear the Minister explain his amendment.
Basically what the Deputy says is correct. It is just the draftsman's way of covering this issue more generally. The section as drafted would preclude the detention of a person in a registered psychiatric centre that is a private psychiatric hospital unless the centre was designated for the area in which the person resides. The amendment allows for flexibility in approving the areas to be served by particular private psychiatric hospitals in that they can be approved for the treatment of persons from particular areas or from the entire country as the circumstances require. It offers, in effect, greater flexibility.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 6, subsection (5), line 10, to delete "approved order" and substitute "approval order".
This is a technical amendment and it is necessary here in subsection (5) due to an error in drafting. The reference at line 10 to an approved order should read "approval order" for the sake of consistency with section 158 of the legislation referred to.
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
(Cavan-Monaghan): Section 11 provides:
(1) The Minister may refuse to register or may cancel the registration of a psychiatric centre or part of a centre.
(2) In any case in which the Minister refuses to register or cancels the registration of a psychiatric centre or part of a centre he shall give the reasons for his refusal to register or for the cancellation of registration in writing to the person maintaining the centre or part of the centre.
The person has the right of appeal to the High Court against that decision. That is only right and proper because it could be a matter of great importance to the persons concerned. While it is very important that institutions of this sort which do not measure up to the required or acceptable standards should be closed down—I am 100 per cent in favour of that—it is also right that the persons involved by ministerial order should have the right of appeal to the highest court in the land, and that right is given here. Subsection (5) gives the occupier or the person running the institution a limited time to wind up his operations. That is reasonable too. Section 11 is acceptable to me.
Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
(Cavan-Monaghan): Section 11 deals with psychiatric centres and section 12 deals with psychiatric homes. It provides:
It shall not be lawful for any person other than a health board to carry on in the functional area of the health board a home (in this Part referred to as a psychiatric home) for the care and treatment of persons suffering from mental disorder not being a psychiatric centre or to describe or hold out any such place as such a home unless it is approved and registered by the health board in accordance with regulations made by the Minister under this section.
I accept that. The health board may refuse to register or may cancel a registration. I also agree with that. It is also provided that the health board shall give reasons for the refusal to register. In this case the person is given the right of appeal not to the court but to the Minister, as far as I can see. Subsection (6) provides:
The person maintaining or proposing to maintain a psychiatric home may appeal to the Minister from—
(a) the removal of the home from the register, or
(b) in a case to which subsection (2) applies, a refusal to register the home,
and the Minister may, if he so thinks proper, direct the health board to restore the home to the register or register the home.
I should like to know why we draw a distinction between the provision in section 11 which gives the aggrieved person the right of appeal to the High Court, and the provision in section 12 where the aggrieved person is given the right of appeal to the Minister. I would suggest that, if a person wishes to take an appeal to the High Court from the decision of the Minister, he should have that right. The appeal might go straight from the health board to the Minister. I would be quite satisfied with section 12 as it stands with the addition that the aggrieved person has the right of appeal to the court.
The differences is that, in the case of a psychiatric centre, the first appeal is directly to the Minister and to have recourse beyond that brings you to the court. In this case the first appeal is to the health board and the appeal beyond that is to the Minister. This applies generally in relation to homes and works fairly satisfactorily. Normally the Minister will give every consideration to the homes and to their complying with the existing regulations. The individual has the right to appeal directly to the Minister. First, there will be an appeal to the health board and then beyond that to the Minister. I think that is adequate.
(Cavan-Monaghan): With respect I do not agree with the Minister. The application to the health board is not an appeal. The health board are the licensing authority. They have power to say he shall or shall not operate. If we are talking in legal jargon it is a court of first evidence and the only appeal lies to the Minister.
If we are talking loosely the appeal will be to the board from the officer.
(Cavan-Monaghan): I would be happier if the right of appeal from the Minister were to the court. This would be an appeal by an individual, an ordinary member of the general public. The Minister would be advised to a large extent by the health board. The health board would already have make up their minds about the case. They would be seeking to sustain the decision already taken. A much more satisfactory method of disposing of it would be to have the appeal to the High Court as in the case of section 11.
I am familiar with operations in relation to registration of premises for food, and so on, which seem to work fairly efficiently. It is probable that people would have an appeal to the court in any event if they wished to take it that far. I have no objection to an appeal. It may not be necessary but I will look at what the Deputy suggests.
The Minister's interruption seemed to imply that a person would appeal to the health board against a decision of a health board officer. The Minister expressed himself as being familiar with the operation of regulations in relation to food and health hygiene. I am not so familiar with them, but I cannot understand how the Minister for Health could suggest that an officer of the health board carrying out an inspection with a view to recommending to his board whether or not a home should be registered would have his decision appealed against. That does not happen in practice and it is not provided for under this section. The appeal is against the health board's decision. It is rather strange that the Minister is distinguishing between the decision of the health board officer and the decision of the health board. The Minister should clarify that. On subsection (5) I should like to ask the Minister to explain to the House what is meant by "a designated officer of the health board"?
On the first point the Deputy made, Deputy Fitzpatrick and I have been discussing a number of matters and I explained that I was talking in loose non-legal terms. Deputy Fitzpatrick recognised that fact.
This is Parliament.
Now that Deputy Boland is here I will have to be more curt in my replies and I will adjust accordingly. The formal appeal is to the Minister or the High Court as the case may be. The designated officer is an officer I designate under the regulations.
The definition section does not provide for the designated officer of the health board. It provides for an authorised officer under an earlier amendment introduced by the Minister. The definition section provides that an authorised officer means an officer of a health board who is of a class designated by the Minister for the purposes of this Act. What is a designated officer? This is not defined.
It is covered under regulations which I will make under section 12 (1).
Why have the definition of an officer in the definition section and set up a new class of animal in section 12 (1) which will need to be defined in regulations made under section 12? Does it not appear to be a strange situation? Can the Minister explain if the designated officer of the health board referred to in section 12 (5) is a different person from the authorised officer referred to in the definition section?
In certain circumstances he could be.
Would the Minister like to explain what those circumstances would be?
Not really. It is just to provide flexibility for the preparation of the regulations.
(Cavan-Monaghan): Did the Minister say he will be defining “designated” in his regulations? It is doubtful if he can do that. Surely he would not have power, unless it is specifically given by regulations, to define expressions in the Act?
It is stated in section 12 (1) under "regulations made by the Minister under this section". We are advised that I will have that power.
There are two things here. The Minister has refused to explain to the House what the circumstances will be where a designated officer under section 12 (5) will be different from an approved officer as referred to in the definition section. I find it quite extraordinary that the Minister should announce to the House that he is not prepared to say what the difference is. There must be some purpose in the Bill in having the different title for this officer. There must be a reason why one officer is an authorised officer and another is a designated officer.
The Minister is being less than courteous to the House if, in response to a legitimately posed question, he merely says that he is not prepared to explain what the difference is. I urge him to make that explanation as, otherwise, we could be on the section for quite a long time. He cannot very well expect the House to go on dealing with the Committee Stage of this Bill and have discussions in relation to the activities of authorised or designated officers if he is not prepared to point out what the reason for the distinction between them is. It appears, in relation to regulations under section 12 (1), which the Minister is giving himself power to make, that they are regulations in relation to the registration of the home and are not regulation in relation to the definition of a designated officer which the Minister seems to be suggesting he will have the power to give himself under that section.
In order to register a home in the first instance it will have to be inspected. If it is inspected it will have to be inspected in relation to the conditions in the home. It is in this context that the designated officer arises. The authorised officer arises principally in relation to the admission of a patient.
(Cavan-Monaghan): The Minister should seriously consider having as few different descriptions for people as possible. He should amend section 5 by describing an authorised officer instead of a designated officer. We are prepared to give it to him.
I am informed by the draftsmen that that is not necessary.
Will the designated officer be defined in the regulations to be made under section 12, as the Minister suggested earlier, or will he not have any definition given to him? My reason for asking this question in the first place was in an effort to ascertion if this officer will be an officer with medical qualifications, an officer with medical qualifications with particular relevance to the practice of psychiatry, or will be be some other officer with administrative qualifications or an officer merely concerned with ensuring the proper physical standards of the buildings concerned? I am rather taken aback at the explosive nature of the Minister's reaction when I tried to find out what type of an officer would be carrying out this work. Could he give us some indication of the type of person he has in mind?
The purpose is to provide flexibility for the inspections. It would be quite normal that it would be a medical officer but that is not always the case. This is why an officer will be defined by regulations which will have to define the officer for those specific circumstances. The Bill will provide for such regulations and they can be looked at subsequently.
If the Minister wants to define this officer in a different way to the other definitions two things arise. It is pointless to have section 3 as a definition section. He should define all of these people in the regulations under each of those sections as they come up, but that would be a very ridiculous way to tackle legislation. That is why we have a definition section. If you have a definition section and you decide to distinguish between different officers, persons or animals, you define it in the definition section. You do not confuse the issue entirely by having a definition section, leave some of the personnel involved out of that section and say you will define them in regulations under certain sections.
I do not believe that section 12 (1) gives the Minister the power to define that officer under those regulations, because they just appear to allow him to make regulations in relation to the standards necessary for a home. It does not indicate that the Minister will have the power to define what his designated officer's qualifications ought to be. It does not define if he should be somebody with medical qualifications, somebody with knowledge and practical experience in psychiatry, somebody with experience in the minimum physical standards of the building or a person with experience in the minimum standards of fire precautions and fire safety in the home.
It is very important that this officer has clearly defined qualifications. Will he be a doctor who will say that the home cannot operate because it does not meet medical standards? Will he be a psychiatrist who will say the home cannot operate because the personnel involved do not appear to be equipped to provide proper psychiatric care? Will he be an administrative officer who says that the home does not qualify to operate because there are not sufficient minimum standards of comfort and ease of administrative operations? Will he be an officer trained and equipped to say if the home can operate safely within existing fire standards, precautions and fire prevention methods? If the Minister refuses to define what qualifications this officer is to have, the House must be very suspicious why he is refusing to give that definition or express that definition in the definition section.
I am sure the Deputy appreciates that to try, in the definition section, to specify all the designated officer's requirements would be somewhat impractical. Perhaps that is why he has not put down an amendment in the first instance. There is only one such home in the whole country and this situation puts the problem into perspective. However, the purpose here is to provide that a designated officer can be provided under the regulations and that the regulations can define that designated officer. This is very satisfactory.
(Cavan-Monaghan): There is grave doubt as to whether section 12, subsection (1) gives the Minister authority to define words appearing in other subsections of this section. Subsection (1) of section 12 provides that a home shall not be operated unless it is approved and registered by the health board in accordance with regulations made by the Minister under this section. That sets out the standards that would be required in respect of accommodation and so on but subsection (5) which is the inspection section provides that:
It shall be the duty of the person maintaining a psychiatric home to allow it to be inspected by a designated officer of the health board ...
If that becomes an issue, it will be a keenly contested issue. In most cases it will not be contested but if someone takes the attitude of relying on his rights and of not allowing a designated person to enter the premises, the matter would be likely to end up in the courts for the purpose of determining whether the designated officer has the right to enter the premises. If a designated officer insists on entering the premises but if the occupier objects, the officer's right of entry would have to be established. I am often amazed at the number of people who regard themselves as being infallible but who find later that they are mistaken. I suppose such people, after being challenged in the High Court, would take the line that the judge was wrong. In the meantime, the judge is the boss and he is the one to make the decision. Why not put the whole thing beyond doubt at this stage? Is this not what committee work is all about? There may be a major political principle about the Bill in general but there is no major political issue involved. The next general election will not be either lost or won on the basis of whether either the words "authorised" or "designated" are inserted here, but it is unfortunate that Ministers take the view that once they are given a brief, they cannot deviate in any way from it and that the people who give the advice like to stand over it and to pretend that they did not let the Minister down.
If the Deputy feels very strongly about this, perhaps he would table an amendment for Report Stage but I am advised that the subsection covers the making of these regulations.
(Cavan-Monaghan): There may be plenty of amendments to be considered on Report Stage.
Question put and agreed to.
NEW SECTION.
I move amendment No. 7a:
In page 7, before section 13, but in Part II, to insert the following new section:
"13. —(1) Every health board shall keep in a prescribed form a register of registered psychiatric centres approved and registered under section 10 and which operate within the board's administrative area and shall make it available for inspection by any member of the public during office hours.
(2) Every health board shall keep in a prescribed form a register of registered psychiatric homes approved and registered by the board under section 12 and shall make it available for inspection by any member of the public during office hours.
(3) To enable the health board to maintain the register referred to in subsection (1) the Minister shall notify the board of all decisions made by him under section 10 and under regulations made under that section and of all decisions made by him, or by the High Court as the case may be, under section 11.".
The purpose of this amendment becomes somewhat more clear in the light of the discussion we have just had on sections 10, 11 and 12 which provide for the methods of registration of psychiatric centres, for the cancellation of registrations and for the registration of psychiatric homes. In particular, as provided for in section 12, the inspection for registration purposes is to be carried out by this ill-defined or undefined designated person of a health board.
As the health boards comprise the personnel who operate the health centres at regional level, it was considered proper that each health board should maintain an up-to-date register in the form of a complete list of all psychiatric centres — those operated by the health board, those operated voluntarily, usually by religious bodies, and those operated by private individuals. It is being provided that such a register should be kept up to date and be available for inspection by the public during reasonable hours. In section 9 there is the provision that the health boards keep in prescribed form a register of the district psychiatric centres operated and maintained by the boards. From that point of view it appears to be a useful adjunct to this provision that the health board should keep also an up-to-date register of those centres and homes not operated by them but which come within their administrative area.
I do not propose to accept this amendment. Deputy Boland is confusing the respective functions of the Minister and of the health boards. The boards have no function in relation to the registration process envisaged in sections 10 and 11 which deal with private psychiatric hospitals. It would be an unnecessary duplication to have the boards do as the Deputy suggests in regard to registered psychiatric centres. However, they have functions in respect of the registration of psychiatric homes and they will carry out these functions in accordance with regulations made by the Minister and which will provide for a register of such homes and for their inspection.
Obviously, the Minister accepts the principle of keeping a register of public psychiatric hospitals.
Yes.
And admits now that he is accepting the principle of a register being kept by the health boards in respect of private psychiatric homes, because he has just told us that there will be such provision in the regulations to be made under section 12. But for some reason the Minister is not prepared to accept the principle that a register should be kept at local level of those psychiatric hospitals that are not operated by the health boards. There are quite a number of such hospitals. Therefore, I do not understand the reason for the reluctance on the part of the Minister to ensure that there is kept at health board level an up-to-date register of those psychiatric homes within the board's administrative area but which are not operated by the boards.
It would appear fair and reasonable and in line with the sort of standards we are endeavouring to ensure that such a register would be kept by the health boards and, consequently, I am surprised that the Minister is not prepared to accept this principle.
I accept that there should be such a register available and that it would be open to inspection and I am prepared to provide subsequently for this.
By way of regulation?
Yes.
Under which section?
It will be by way of undertaking from the Minister that such a register will have to be kept and that it will be made available to the public.
If Deputy Fitzpatrick tables an amendment to that effect for Report Stage, is the Minister giving an undertaking that he will accept it? We all know that ministerial undertakings in the House do not have the force of law when they reach the courts afterwards.
Amendment, by leave, withdrawn.
NEW SECTION.
I move amendment No. 7b:
In page 7, before section 13, but in Part III, to insert the following new section:
"14. — Where a person is ordinarily resident in a health board area and requires, by reason of his upset state of mind, any care or treatment, maintenance, advice or service, whether by way of hospital in-patient or out-patient or community medical facilities, it shall be the duty of that health board to provide such facilities to that person, subject to the provisions of the Health Acts as to eligibility".
The purpose of this amendment is to include at the commencement of this part of the Bill which sets out the procedure in relation to admissions, discharges, appeals, reviews, compulsory detention and so on, a restatement of the responsibility which is on the State to provide adequate psychiatric services for people who are in need of treatment. One of the complaints made both by practitioners in the field of psychiatry and by interested bodies involved in the provision of psychiatric services is that the State does not anywhere in legislation appear to assume its responsibility to provide a comprehensive level of care, treatment and maintenance for patients. I would draw the attention of the House to the fact that we choose the words "upset state of mind" so as to indicate a degree of comprehension and compassion on the part of the State towards anybody who needs treatment of this nature. One of the difficulties in relation to psychiatry has been that the stigma of psychaitric illness has been such that people are generally not prepared to say that they have been for psychiatric treatment. For that reason there should be a clear statement at the commencement of the section enunciating the duty of the State to provide care treatment, maintenance and advice for people who by reason of their upset of mind needed hospital treatment, whether in-patient or out-patient. This section as a preamble to Part III places the onus on behalf of the State on the relevant health boards to provide this service. This section would be an important addition to the Bill because it would indicate that the State was accepting its obligation to provide this service.
One of the big criticisms of the Bill is that it deals almost exclusively with procedures in relation to compulsory detention of patients in need of psychiatric treatment. Those people amount to possibly less than 5 per cent and not more than 10 per cent of the entire psychiatric patients in the country. The Bill has in many areas been represented as being merely draconian or repressive legislation dealing only with elements of compulsory detention. It is a pity that that image has gone abroad. From that point of view it is important that the obligation be on the State to provide a full comprehensive range of medical services for all people with an upset state of mind whether they were looking for treatment voluntarily or otherwise, especially emphasising that over 90 per cent of the people who get treatment get it on a voluntary basis. That obligation on the State should be clearly set out in the first section of Part III of the Bill.
This amendment is entirely unnecessary. As I made clear in the Second Stage debate on the Bill, the Health (Mental Services) Bill must be read in conjunction with the Health Acts. The obligations on the health boards are laid down in those Acts and to do as the Deputy suggests would be a duplication of, for example, sections 52 and 56 of the Health Act, 1970. I do not propose to accept this amendment. Section 52 of the Health Act, 1970 deals with the provision of in-patient services and section 56 deals with the provision of out-patient services. This Bill deals only with the detained patients and the whole purpose of the Bill is to make the vast majority of people who receive treatment similar to those who receive treatment under the Health Acts generally. Indeed the whole administration and organisation of the services goes in that direction. Our newer hospitals have psychiatric services built in as part of their normal services and that is the way in which the service will continue. The obligation is there under the Health Acts and it is clearly being met in the new facilities which are being provided. The Deputy raised the question of not wanting to separate people with mental illness. The whole purpose of the Bill is to leave them to be treated as having an illness similar to most other illnesses in a way in which other illnesses are treated except when their condition is such that they must be detained. It is only in that small percentage of cases that the legal provisions and the rights must be protected.
(Cavan-Monaghan): I am sorry that the Minister does not see his way to accepting this amendment because it is a suitable preamble to Part III of the Bill. It is clear from what the Minister says that it is his intention to have a full and adequate hospital service for the mentally ill where it is required but that the emphasis should be on community care. We agree with that. The Minister says that to accept Deputy Boland's amendment would be to duplicate some other sections of the Health Acts which already ensure adequate hospital facilities where required and guarantee necessary out-patient treatment. Those facilities are just not available at the moment. For example, the people in urgent need of dental care cannot get it. They have to wait for years and if they are in certain categories and cannot afford it they do not get it at all. This applies to a lesser extent where people require glasses and so on. I would not like to depend on the sections of the Health Act to which the Minister referred to guarantee the sort of comprehensive health services that the Minister agrees are necessary and says that this Bill will provide. It would be much better to accept Deputy Boland's amendment.
There seems to be some sort of fine distinction between mental handicap and mental illness. Does the Minister suggest for one moment that there is adequate mental service for all the unfortunate children who badly need to be institutionalised? There is no question of keeping these children at home because they are so badly afflicted. They need the help and care of constant nursing in an institution.
Is the Minister suggesting that that facility is available? My experience as a politician, meeting parents of these children and hearing their stories, convinced me long ago that no such facility is available, although it is badly needed. It may be that the Minister is afraid that by accepting Deputy Boland's amendment it would impose too serious an obligation on the State. If that is what he means he should say so. I was alarmed when I heard him relying on section 52 of the 1970 Health Act to guarantee hospitalisation facilities where necessary and also to guarantee community care where necessary.
There is a difference between legislation and the provisions set out in the Act. The requirements are met under the existing Health Acts. The question of provision of services in general and the level and quality of such services is a matter of money and administration. In that respect I am doing all I can to upgrade the services.
The Deputy referred in particular to the mentally handicapped. I have allocated £8 million in the capital budget this year for new facilities for the mentally handicapped, as compared with £6 million last year. The Deputy should accept that this is an attempt in the present circumstances to make the necessary provision. Most of what is now required for the mentally handicapped is adult residential places and workshops. It arises out of the success of the work of my predecessors during the years in relation to the mentally handicapped and it also arises because of the successful work carried out by health boards and those involved in health services. The mentally handicapped are living much longer and healthier lives and there is a need to provide services at that level. At the beginning of this week we gave the goahead for new facilities for the mentally handicapped at Drumcar, in the Deputy's health board area. The provision of the money is a separate question, but as far as the Act is concerned the requirement is there.
A large element of what the Minister has said is utter crass rubbish. It is well known that during the years the health boards have been remiss to the point of being recalcitrant in not providing services for the mentally handicapped and for the Minister to suggest as he has just done that any improvement in this area is due to the activities of the boards is misleading and false. The work done for the mentally handicapped has been undertaken almost exclusively by the voluntary agencies. The part played by the State has been unforgivably low key and it is ridiculous and misleading for the Minister to suggest otherwise. It comes back to the Minister's total failure to grasp the distinction between the mentally handicapped and the psychiatrically ill. That failure ran through his entire contribution on Second Stage and has been carried through this discussion on Committee Stage.
Were it not for the activities of the voluntary agencies — usually the religious organisations — there is no way that services for the psychiatrically ill or mentally handicapped would have existed during the years. If those voluntary agencies were to close their doors this evening the State would be unable to provide the necessary services. The State has sat back and expected the agencies to provide the services, often in such a way as virtually to abrogate its own responsibilities. The inclusion of amendment No. 7b would copperfasten the obligation of the State to provide the necessary services. It would place the onus on the health board to provide for the patient. The amendment refers to a person who is in an upset state of mind. In how many health board areas does the situation exist that there are not the necessary facilities for the proper treatment, maintenance, care and advice for such people? The simple fact is that the State has been relying on the vocational nature of the religious orders who have provided these services during the years.
This Bill is entitled the Health (Mental Services) Bill but the Minister is not prepared to include the section that accepts the State's responsibility to provide both hospital in-patient and out-patient services. It is indicative of the way the State has abrogated its responsibilities over the years and has sat back and expected the voluntary agencies to do the work. The Minister's attitude is indicative of the narrow, blinkered approach of the Government on this matter and of the way they have sought to deal with only a tiny proportion of people whom it is necessary to detain in psychiatric institutions. They have not attempted to deal with the 90 per cent who need psychiatric care and who want that care as voluntary patients. It indicates their narrow-minded, stultified approach towards this whole matter.
The contrary is the case. The Deputy has taken a narrow view of the development of the health services. I have tried to impress on him the changes that have taken and are taking place and which this Bill will assist. The Deputy referred to the work of the voluntary groups. I welcome the participation of the voluntary groups and the contribution they have made. However, I do not want to create a situation where there is any kind of State takeover — I would not like to see that happening. I am happy with the mix of the voluntary organisations and the State and wish to place on record my appreciation of the work done by them. Of course they are almost totally funded on a current basis by the State. They receive substantial grants and collect considerable funds towards the development of new facilities. As Minister I am very happy to co-operate with them in that way. In that sense they provide a good blend as part of our total services. I have a very happy working relationship with them and I have no desire to have any State takeover.
We are getting into a full scale debate on the services provided by the health boards.
(Cavan-Monaghan): This is quite a wide amendment.
It is certainly being widened very much now. We must adhere to the amendment.
(Cavan-Monaghan): Lest it be taken that I am accepting the Minister's statement, if I understand it correctly, that there are adequate facilities——
No, I did not say that in the first instance.
(Cavan-Monaghan):——for mentally handicapped children or young adults, I want to deny that straightaway. Even if the Minister wants to give the impression that such facilities are around the corner, I want to say that that is not so either. There is a great shortage of beds for severely handicapped children. There is an even worse condition prevailing, that these children have been institutionalised from the age of seven or eight up to 17 and are then discharged and there is no place for them. They are not suited to living in the community at all. There is no question of making a virtue out of community care and keeping them at home. I am speaking about young adults who are not suitable for community care at home. It is nothing short of an absolute disgrace that they are discharged from various institutions, where they were looked after from the age of perhaps six, seven or eight up to 17, with no suitable place being provided for them.
I do not want to reduce this debate to a political discussion, but the Minister had been doing that. The Minister has given the impression that he has been providing facilities over the last few weeks on a grand scale. Over the past few weeks the Minister has been giving the impression that he will build this, that and the other when he knows perfectly well that the money was not provided in the capital budget this year to meet the commitments he is giving the impression he is entering into. The amount of money provided in the capital budget is £40 million. The Minister gave the impression that he spent far more — perhaps he would like to clarify the position and say that he did not — between the west and other parts of the country. The Minister should come clean. This is not a suitable forum for that type of discussion.
We are entering into a debate which is not relevant to the Bill.
(Cavan-Monaghan): It was the Minister who introduced it.
I did not introduce it.
The Chair would ask that we get back to the amendment.
On a point of order, the Minister has accused me of introducing a discussion on the health services generally. I did not refer to anything other than the psychiatric and mentally handicapped services.
Neither did I.
Why should I be accused by the Minister of introducing extraneous matters?
There should be no accusations or anything else. The Chair believes we are now getting into a general debate on the health services not relevant to this amendment.
It is time we had such a debate. There has not been a full discussion on the Estimate for Health for several years.
That can be done on the Estimate or elsewhere but we must now deal with the amendment.
(Cavan-Monaghan): Deputy Boland introduced this very meaningful amendment and made an excellent case in support of it. When the Minister rose he reached immediately for the Health Act of 1970 and began to quote ad lib from that in regard to two sections in support of his contention that this was not necessary. Of course it is necessary for us to say that, if he is relying on the Health Act as proving that there are adequate general health services available, we must say that this is not so. If he asks us to accept that as a guarantee that adequate health services will be provided here, we must also say that that is not so. That is the turn the debate has taken. Deputy Boland's amendment, which proposed to give a charter to a mentally ill patient, is a very desirable and laudable one, something that should be written into a mental health code, as this is supposed to be.
It is unnecessary. It is covered by existing Acts and the question of the provision of resources is a separate one.
Is the amendment withdrawn?
No. Will the Minister say what part of this amendment he does not agree with? The amendment suggests that, if a person by reason of his or her upset state of mind requires care or treatment, maintenance, advice or service, whether by way of hospital in-patient or out-patient or community medical facilities, the onus should be on the health board to provide those facilities. Can the Minister say with what part of that proposed new section he disagrees? If he does not disagree with any part thereof, can he say why he is not prepared to accept it and have it enshrined in legislation?
It is purely on the grounds that it is unnecessary. I have explained that already.
The Minister is suggesting that this is provided for already in the Health Act, 1970. If that were the case would I not be a fool to be tabling this amendment? Also would the officials of the House not be rather silly to have allowed this amendment to be put forward for discussion if the facilities are already provided in existing legislation? This amendment was accepted by the officials of the Ceann Comhairle's office. Presumably they did not think this amendment was covered already by legislation and hence the House has been discussing it. Therefore it would appear that, apart from any case I might make, the staff in the House, in the Ceann Comhairle's office, appear to feel that what is provided in this proposed new section has not already been provided for comprehensively in the legislation of 1970.
I can recall that Bill going through the House. I can recall the Committee Stage discussion in 1969, quite a long time before the Minister became a Member of the House. Therefore he may not be as familiar with the nuances of that Act as those of us who were around at that time. I can recall the undertakings given by the Minister's predecessor at that time in relation to the type of services that the Act would ensure and would insist by law were to be provided. Quite a number of those services still have not been provided, as was alluded to by Deputy Fitzpatrick. Is the Minister suggesting that in all of the new general hospitals the State is taking on its responsibility to the psychiatric services by providing psychiatric wings and beds? Perhaps the Minister could give us some indication, in relation to those new general hospitals being built at present, how many psychiatric beds will be provided in each? For instance, how big will be the psychiatric wing in the new Beaumont Hospital?
We are getting into a general health debate.
Approximately 50 beds. It is quite substantial.
Is the amendment withdrawn?
No, Sir.
I am putting the amendment.
Amendment put and declared lost.
We must be three very soft-voiced people in comparison with one.
The Chair is following the usual procedure over the years.
Question proposed: "That section 13 stand part of the Bill."
This takes me to virtually all of the reservations I have had about the Bill. The Bill consists of 50 sections, 49 of which deal with the people who have to be compulsorily detained in psychiatric hospitals, or to put it in crude terms, the people who need to be forcibly restrained, the people who need to be locked up. That is what 49 of the sections of this Bill deal with. Of the people who receive psychiatric care in hospitals in this country at present, something like 97 per cent receive it in a voluntary capacity. They realise that their state of mind is upset and that they need treatment. They seek it voluntarily and receive it.
This is 97 per cent of the patients. The other 3 per cent, those who must be compulsorily detained, are, apparently, the subject of 49 or 50 sections of this Bill. The 97 per cent receiving psychiatric treatment voluntarily at this moment in our hospitals are catered for by two lines and two words in this Bill. That is the modern, comprehensive, compassionate legislation about which the Minister and his predecessor have spoken for a year and a half. All that is provided for that 97 per cent of voluntary psychiatric patients is section 13, which goes as follows: "Nothing in this Part shall be read as preventing or discouraging a person from being admitted voluntarily for care and treatment in a psychiatric centre." Full stop, forget about them.
That is not an adequate method of dealing with the vast bulk of the many thousands who annually require psychiatric treatment and who receive it on a voluntary basis. That is part of the reason for my last amendment and for my next amendment, which will be discussed. I needed to make this point in relation to section 13, to explain why we felt it necessary to enter amendment No. 7c and the other references to voluntary patients. In this one respect the Minister must be exempted. I accept that this Bill was not his creation, that he inherited it when he inherited the Department. Nonetheless, whoever conceived this Bill started from a false premise, that there was a need to produce a major piece of legislation to deal with a minor problem—the premise that the vast majority of people who require psychiatric care should be virtually ignored in modern legislation. This is wrong and that is the reason for my two amendments. This section does not adequately deal with the very real problem of providing psychiatric care, treatment and maintenance in hospitals in an in-patient and out-patient basis.
(Cavan-Monaghan): Section 13 is a very tell-tale section. It certainly recognises the impression given by the remainder of the Bill. It is a very small section, which has been read out by Deputy Boland. It is saying that, unless we clarify the position, it will be thought that this Bill deals exclusively with detained persons and excludes voluntary treatment. If it means anything, it means that. The legislators have to put a signpost on this Bill to say that it is not outlawing or excluding voluntary treatment, otherwise anybody reading the Bill would think that it did not provide for voluntary treatment. What else does it mean? This small section rears its head and says “We do treat voluntary patients.” As Deputy Boland has said, it leaves voluntary treatment to be worked out in some obscure way. I tried this morning to ascertain the position. I suppose I should have gone through the 1945 Act, section by section. Certainly, we are dumping 284 sections of the 1945 Bill and Schedule and three other Bills of 1953 and 1961. We are replacing all this by about 30 sections of the present Bill, practically all of which, as Deputy Boland says, deal with detained persons and persons who need to be compulsorily detained.
This discussion has gone on throughout the debate on the Bill. Essentially, we are endeavouring to treat them as people receiving normal, general health care. That is the basic difference.
It could be argued, and seems officially to be argued, that perhaps that was the aim of the Minister's predecessor and his officials when they set out to prepare this legislation. If that was their aim, they fell at the first hurdle. The Minister argues that this Bill suggests that the people who need to be compulsorily detained for psychiatric treatment should be represented as receiving part of the general health care. It could equally be argued that because 49 or 50 sections of this Bill deal with those who have to be locked up, the 97 per cent receiving psychiatric care voluntarily will now be regarded and represented to the general public as if they were the same as the 3 per cent needing to be locked up.
The outcome of this legislation may be to give the impression that all who go for psychiatric care need to be compulsorily detained and that they may be a danger to themselves or others. If that is what happens the entire effect created by this legislation will be regressive. It will lend an even greater stigma or taint to the image of psychiatric treatment. That is why it was so unfortunate that greater attention was not given to the provision of services for voluntary patients and to procedures for admittance and so forth in relation to them. The corollary of the Minister's argument is what is more likely to happen. That is not my suggestion, or my reaction. That is the reaction of the Royal College of Psychiatrists, of the group of psychiatrists who form part of the Irish Medical Association, the reaction of the experts, the practitioners in the field. Their fear about this legislation is that there will be a taint on all who obtain psychiatric care—the vast bulk of them in a voluntary way. That is why I was making my point, which the Minister does not appear to grasp. If he understands it, he does not appear to recognise it.
We have had discussions with those organisations.
The Minister could talk to anybody.
Question put and agreed to.
NEW SECTION.
Amendment No. 7c has already been debated in full with amendment 5a, which was withdrawn. Is amendment 7c being moved?
(Cavan-Monaghan): It is not being moved, but we have discussed it.
Amendment No. 5a relates only to the definition of a voluntary patient.
I am sorry, Deputy. Both were debated together, amendments Nos. 5a and 7c. We can have a decision now on amendment No. 7c if the Deputy wishes, but we cannot debate it.
It ought to be, because amendment No. 7c places an obligation on the chief executive officer of the Health Board to find accommodation for the applicant.
I move amendment No. 7c:
In page 7, before section 14, to insert the following new section:
"16.—(1) Where an applicant desires to be admitted voluntarily to a psychiatric centre for care and treatment he shall make application for such care and treatment in the prescribed form to the medical officer in charge of the appropriate psychiatric centre.
(2) For the purposes of this section "an applicant" means—
(a) where the person whose care and treatment is sought is less than sixteen years of age — the parent or guardian of such person.
(b) in any other case — the person himself.
(3) Where the medical officer in charge of a psychiatric centre receives an application under subsection (1) of this section, duly completed in the prescribed manner, he shall, if possible and where he considers it desirable, arrange forthwith for the admission of such applicant to that centre for appropriate care and treatment.
(4) Where the medical officer in charge of a psychiatric centre is unable, for any reason, or refuses, to provide accommodation for an applicant, whose application is duly made as prescribed under this section, he shall forthwith notify
(a) the applicant,
(b) the chief executive officer of the appropriate health board.
as to the reasons for his inability or refusal to provide such accommodation.
(5) Where the chief executive officer of a health board has been notified of the circumstances under subsection (4) of this section it shall then be the responsibility of such health board to forthwith arrange for the admission of such applicant to suitable accommodation, care and treatment, in a psychiatric centre as a voluntary patient.".
Amendment put and declared lost.
At this stage, we come to Section 14, amendment 7d.
Progress reported, Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
With your permission, a Cheann Comhairle, I propose to raise on the adjournment the following question, namely, the implementation by the Government of their commitment on ground rents.
I will communicate with the Deputy.