I welcome the consensus expressed here last night about the need for new mental treatment legislation and a review generally of our mental health services. I join with the Minister for Health in welcoming this opportunity to debate the issues which must be addressed in new legislation. I commend Deputy Fennell for her interest in the welfare of the mentally ill. I respect her wish to provide greater legal safeguards for mentally ill patients in psychiatric hospitals. Unfortunately, the Government cannot accept this Bill as drafted because it does not deal in a comprehensive way with mental treatment issues and because some of its provisions are outdated.
New legislation should provide comprehensive safeguards for detained patients which reflect our society's concern for the welfare of the mentally ill. A mental treatment Act must conform with our obligations under the European Convention on Human Rights and Fundamental Freedoms and accord with the United Nations principles on the care of the mentally ill. It should also provide a firm foundation for the development of psychiatric services into the next century. Deputy Fennell's Bill, I am afraid, falls short of the comprehensive safeguards we would all wish to see for the mentally ill. The provisions would not conform with our international obligations under the European Convention nor implement the recommendations of the UN principles. It does not provide a new legal framework for the management of the psychiatric services.
I appreciate that the Deputy's objective may not be a comprehensive overhaul of the legislation in this area and that she is primarily concerned with remedying the most obvious and serious defects as she sees them. I can sympathise with this view but there are so many strands to this whole complex matter that it is extremely difficult to look at one or two specific aspects of it without considering the matter in the whole.
Deputy Fennell's Bill deals with just four issues in relation to the detention of persons in psychiatric hospitals. These are: the number of doctors signatures on a detention order, review of detention orders, information to be given to patients on being detained and the right of detained patients to take civil proceedings against any person involved in their detention care under the 1945 Act. I would like to examine the provisions of this Bill under each of those headings to explain why it cannot be accepted by the Government.
First I shall take the number of doctors' signatures required on an order. Section 3 provides that two registered medical practitioners shall sign every reception order detaining a person in a psychiatric hospital. The explanatory memorandum to the Act says that the purpose of this section is to remove the disparity of treatment as between public and private patients in detention procedures.
I wonder whether Deputy Fennell is confusing the different stages in the procedure for detaining a mentally ill patient. The first stage is the application by a relative or interested person to the medical officer of a psychiatric hospital to have a person detained. The second stage is the recommendation by one or two medical practitioners, who are usually general practitioners, that the person should or should not be admitted. The number of doctors who must give a recommendation depends on whether the patient is a public or private patient. The third stage is the decision by the medical officer of the psychiatric hospital to detain the patient. All these stages must be completed before a person can be detained under existing law.
What Deputy Fennell's Bill is proposing is that the distinction between public and private patients at the second stage of medical recommendation would remain but that two doctors would be involved in signing the detention or reception order at stage three. Most public concern has been expressed not about the number of doctors who sign the detention order but about the number of doctors who should recommend that a person be admitted to a psychiatric hospital.
The next item I wish to refer to is the review of detention orders. The issue of safeguards for detained patients has, however, moved much further than the number of doctors who recommend detention or sign the orders. It is no longer acceptable that the decision to detain is an exclusively medical one. In most European countries, the decision to detain a person in a psychiatric hospital is either a function of the courts or each medical decision is subject to review by an independent administrative body. The European Convention obliges that when a court is not involved in the decision to detain there should be review of each order by a judicial or review body. This obligation has been elaborated in judgments of the European Court of Justice during the eighties, after the passing of the Health (Mental Services) Act, 1981. Any new mental treatment legislation will have to provide for a review of every detention order. This review will provide an essential safeguard for all persons who are detained. It will ensure that psychiatrists who sign detention orders are accountable for the decisions they take. The experience of countries with review procedures is that very few decisions of psychiatrists to detain patients are overturned. However, it is perhaps significant that the proportion of people who are detained is lower in these countries than in Ireland.
Deputy Fennell's Bill provides for the establishment of a mental health review board or boards. The function of these boards would be to review the detention or conditional discharge of a patient if the patient makes an application to the board for such a review. The board would also automatically review the detention of any person detained for more than two years. The functions of the review board are the same as in the 1981 Act. The main shortcoming with the functions of the review boards in Deputy Fennell's Bill is that, with the exception of those detained longer than two years, a board can only act on an application from the patient or other interested party. For the reasons outlined, a review board with such a limited role would not meet this country's obligations under the European Convention on Human Rights. Any future arrangements must provide for the review of every detention order, irrespective of whether the patient seeks a review.
A second problem with the review boards proposed in Deputy Fennell's Bill is the grounds on which a board can order the discharge of detained patients. The Bill provides that the board may direct the discharge of a patient if they are satisfied that detention and treatment in the hospital are no longer necessary in the interest of the person's health or safety or that, if released, the patient would not be likely to act in a manner dangerous to himself, hereself or to others. I accept that the wording of Deputy Fennell's Bill is an advance on the 1981 Act but it still has major shortcomings. Under this Bill the onus would be placed on the patient to prove that he or she no longer needs to be detained for treatmen and that if released, he or she would not act in a dangerous manner. The onus should be on the person detaining the patient to say why there is good cause for detention. This major point needs considerable analysis before any final conclusions can be reached.
I note, however, that Deputy Fennell does not specify any grounds in her Bill for a review board in reaching a decision in relation to a person who is conditionally discharged, and this is a major omission even allowing for the limited scope of the Bill.
Deputy Fennell's Bill has, with justification, not repeated the provision of the 1981 Act providing for an appeal against a decision of a review board to the Minister for Health. Under the European Convention, a decision of a review board may not be overturned by an administrative or executive body. However, Deputy Fennell does not provide any appeal in section 6 against a decision of a review board. As with the review of the detention of a person detained longer than two years and of conditional discharge, there should be an appeal to the High Court against a decision of the review board.
I would also question whether the idea of one review board per health board area is the most appropriate way to organise review of detention orders. The 1981 Act envisaged more than one such board but perhaps we need to look afresh at this issue. It is important that review procedures are consistent in every part of the country if they are to win the confidence of patients and practitioners. It would be extremely difficult for eight separate review boards to work in a consistent and coherent manner. Deputy Fennell envisages that they would not even have a common secretariat but would rely on each health board for administrative support. With eight different boards and secretariats, it might not be long before serious anomalies would emerge in the decisions of review boards.
This is an important issue that should be addressed in terms of the efficient and acceptable organisation of review boards. A national review board is probably sufficient if the personnel were drawn from the local board areas.
Because of the need for consistency and the importance of being seen to be fair, it might be better to have a single review board with a small secretariat and a panel of people in each region who would carry out the work of the board. The regional panel would ensure speedy review and the single secretariat would facilitate a consistent approach to decisions at regional level. The review provisions of this Bill are going in the right direction but they fall short of the comprehensive review procedures which are now necessary to reassure the public that no person is detained unnecessarily, and to bring out procedures into conformity with our international obligations. This is one of the reasons the Government cannot accept this Bill. On information for detained patients I would now like to deal with section 9 of the Bill which repeats the provision of section 34 of the 1981 Act requiring the medical officer in charge of a psychiatric centre to give a detained patient a copy of the detention order and to explain to the patient, both orally and in writing, his or her rights and entitlements under the Act. The patient's right to information be safeguarded by legislation, but there may be more effective ways of ensuring that the patient is informed than by the provisions in this Bill. Should it be the medical officer in charge of the hospital who is responsible for providing this information? Is there a conflict of roles for the medical officer? On the one hand, he or she may be responsible for the decision to detain a person and, on the other, the same doctor is to be responsible in this Bill for informing the patient of his or her rights. Will patients have confidence in such a system?
In the Netherlands in the early eighties the difference between formulating the rights of psychiatric patients and the practical application of these rights was recognised. To bridge the gap between theory and practice, an independent foundation of patient advocates was created in 1981, with the support of the Dutch Government. The patient advocate's main task is to assist patients in safeguarding their legal rights, in finding solutions to patients' complaints, in giving advice about their legal position and, if necessary, by offering legal advice. The work of the patient advocate is made possible through an agreement between each hospital and the national foundation. This agreement gives the patient advocate the right to visit all the wards and to talk to all patients who also have the right to contact the advocate. In 1990 the national foundation employed 36 patients' advocates, working in 47 hospitals. The work of the foundation is financed by the Dutch Government. I am not proposing this as a framework for this country, but I mention it as an example of the way in which patients' rights can be protected and the different approaches one can adopt in seeking this worthy objective.
There is a number of options for ensuring that patients are informed of their rights. Another approach would be to involve voluntary bodies active on behalf of the mentally ill in this role. A third option might be to make the health boards responsible for ensuring that patients are properly informed, with the proviso that no one who is directly involved in the procedure for detention should be assigned the task of informing patients of their rights. Health boards could make use of a variety of means to ensure that patients were informed. They might contract the responsibility to a voluntary body, appoint an information officer in the hospital or assign the responsibility to staff working in a separate service, such as community care.
While I sympathise with Deputy Fennell in the intention behind this section, it is too limited in scope and could give rise to conflicts of interest for medical staff. On civil proceedings section 10 of Deputy Fennell's Bill repeals sections 259 and 260 of the Mental Treatment Act, 1945. Section 259 of the 1945 Act put a time limit of six months on any proceedings taken by a person who has been detained in a mental institution. I am glad to say that this section is no longer on the Statute Book. It was repealed by the Public Authorities (Judicial Proceedings) Act, 1954.
Section 260 of the 1945 Act provides that a person who is or has been detained cannot bring civil proceedings against a person involved in his/her detention without the permission of the High Court. Subsection (4) of the section has been repealed by the 1954 Act to which I have just referred.
It is important to be clear to what section 260 refers. It does not limit a person's right to seek an order of habeas corpus against his or her detention under common law or under Article 40.2.2 of Bunreacht na hÉireann. Section 260 applies to a situation where a patient who is or has been detained wishes to take proceedings against a person involved in his or her care under the 1945 Act. Before a person can take such proceedings he or she must have the permission of the High Court. The High Court must be satisfied that the person against whom the proceedings were taken acted in bad faith or without reasonable care.
The intention behind the section was to protect staff involved in the case of psychiatric patients from civil suits in the courts which might arise from the mental instability of the patient. I agree with Deputy Fennell that this issue needs to be looked at again in the light of modern standards of justice. It is not a black and white issue. However, it is perhaps instructive that mental treatment law in a number of jurisdictions has similar provision to that of section 260.
There are a number of major issues relating to detained mentally ill persons which are not dealt with in this Bill. I accept that the Deputy may feel that the specific issues she deals with are so urgent that they cannot or could not wait for overall legislation in this area. Nevertheless, I feel that any Bill which will replace the 1945 Act must deal in a comprehensive way with all the important issues in the field of mental health. This is another reason the Government cannot accept Deputy Fennell's Bill. I would like to mention just a few more which include safeguards to protect the patient's right to consent to treatment.
Under common law the administration of medical treatment to a person without his/her consent is unlawful unless the treatment is urgently necessary. Consent may be given expressly or implied by conduct. Valid consent implies that the person has been told about the nature and purpose of the treatment, is able to understand its nature and purpose and consent must be given without coercion or unreasonable influence.
It has been widely assumed that if a person was involuntarily detained in a psychiatric hospital for treatment, he or she was not competent to decide whether he or she should be given treatment without consent. That assumption has been challenged in a number of countries with the increasing recognition of the rights of detained patients. Procedures will be required in new legislation to ensure that a detained patient gives express consent to medical treatment whenever possible or, if he/she cannot give consent or refuses to give consent, to define the conditions under which such treatment may be administered.
Another issue which needs to be addressed in new mental legislation is the position of mentally ill offenders. At present a judge has no power to remand an accused person to a psychiatric hospital for assessment or treatment; a judge cannot order that a convicted person be sent direct to a psychiatric institution for treatment. The judge may only annex a recommendation for psychiatric treatment to a sentence of imprisonment. He or she may also suspend sentence if the convicted person seeks treatment on a voluntary basis.
Psychiatric treatment is provided to prisoners by psychiatrists who visit the prisons on request or, where the illness is severe, by transfer to the Central Mental Hospital, Dundrum. The advantage of this system to the health services is that a service is provided locally to the prisons with a specialist service in Dundrum with minimal demands on the psychiatric service. Unlike most European countries, prisoners are not admitted to the psychiatric hospitals.
These issues were addressed by the Interdepartmental Committee on Mentally Ill and Maladjusted Persons, better known as the Henchy Committee, after its chairman, Mr. Justice Henchy. In their third interim report 1978, the committee commented that:
many persons are dealt with by the Courts as "normal" offenders who are either not responsible (or not fully responsible) for the conduct charged against them or who, even if fully responsible for such conduct, are in need of psychiatric or other special treatments. The inability or restricted ability, of the courts to order that convicted persons receive appropriate psychiatric treatment is a grave defect in the present state of the criminal law.
The legal issues and service implications arising from any changes in existing law in relation to mentally ill offenders are complex and will require widespread consultation. The Green Paper will provide an opportunity for consultation and debate.
The Minister for Health spoke last night about the need to provide a new legal framework for the psychiatric services as they develop on the model recommended in "Planning for the Future". The fundamental shift which has taken place in the delivery of psychiatric services from a service based on isolated institutions to one which is integrated with other health services and based mainly in the community must be underpinned by appropriate legislation. The Bill we are debating does not address this issue.
The Mental Treatment Act, 1945, no longer provides a satisfactory legal basis for services designed to provide modern methods of care for the mentally ill. It has been amended so frequently and so extensively that it is difficult to be exact about the legal responsibilities of health boards and resident medical superintendents. New legislation is needed to clarify the responsibilities of health boards in relation to mental health illness and to safeguard the rights of detained patients in our psychiatric hospitals. The thrust of the Mental Treatment (Amendment) Bill, 1992, is to safeguard the rights of detained patients. As I have argued, however, the Bill does not provide adequate safeguards. It does not refer at all to the management of the services. New legislation will need to be introduced to embrace the full range of issues reflecting the recent transformation in the delivery of our psychiatric services.
My colleague, Deputy O'Connell, Minister for Health announced last night that the Government were examining a Green Paper on the development of services for the mentally ill and new mental treatment legislation. The purpose of the Green Paper is to review progress in relation to the implementation of "Planning for the Future" and to propose options for legislation for the psychiatric services which will promote a psychiatric service of a high quality and protect the rights of psychiatric patients. Publication of the Green Paper will allow interested parties to engage in full and open discussion on options put forward to adequately protect the rights of detained persons and measures designed to develop the psychiatric services.
The Government are determined to avoid a repetition of the unhappy experience of the Health (Mental Services) Act, 1981. They are conscious of the need to achieve a consensus on the measures needed to safeguard the rights of detained patients and the framework for future development of the psychiatric services. In relation to the former it is important to ensure that proposed legislation will fully comply with this country's obligations under the European Convention for Protection of Human Rights and Fundamental Freedoms and the International Convenant on Civil and Political Rights under the auspices of the United Nations.
While the provisions of Deputy Fennell's Mental Treatment (Amendment) Bill, 1992, are an improvement in the rights of detained patients, they are too narrow in scope and would not satisfy this country's obligations under international law. It would be very inappropriate for us to consider the introduction of amending legislation which does not meet our obligations in this respect. I regret that for these reasons the Government cannot accept this Bill.
Instead I recommend to the House that it support the approach outlined by the Minister last night — that the Government propose to publish the Green Paper on mental health to initiate wide ranging debate and consultation on the issues involved in new mental treatment legislation. Following this consultation, the Government will announce their decisions in relation to new legislation prior to publishing a new mental treatment Bill.
I should like to avail of this opportunity to comment on the remarkable changes which have taken place and are taking place in our psychiatric hospitals, changes which demand a new legal framework. Perhaps the most dramatic advance in the treatment of mental illness was the introduction in the fifties of prescribing drugs to sufferers of mental illness. This drug therapy provided psychiatrists with the resources to treat some of the most profound psychiatric conditions. This landmark development made it possible to reduce isolation as a method of treating psychiatric patients who might be a danger to themselves or to others.
These advances, particularly in European countries, provoked many to question whether large impersonal custodial regimes with a lack of privacy and a lack of social and intellectual stimuli were the most appropriate or satisfactory form of care for mentally ill patients. In 1953 the World Health Organisation envisaged the custodial role of the mental hospital changing and acting as a base for psychiatric services to a defined geographic area. The progressive developments in psychiatric medicine paved the way for patients who were formerly long term patients in psychiatric hospitals to be discharged from hospitals and led to a growing acceptance of the concept of community care for the mentally ill. The fundamental principles of comprehensive community mental health are now widely accepted internationally.
In Ireland the driving force behind the significant and systematic shift from an institutional form of care for the mentally ill to community-oriented care has been the study group on the development of the psychiatric service who published their findings in the report Planning for the Future in 1984. Their terms of reference were to examine the main components both institutional and community of the psychiatric services, to assess the existing services, to clarify their objectives and draw up planning guidelines for future development of the service with due regard to cost implications, to carry out such studies and to take part in such consultations as were necessary to assist this examination.
The study group found that the psychiatric hospital was the focal point of the psychiatric service in most parts of the country, that large numbers of patients resided permanently in these hospitals and that many of them had lived there for years in conditions which were less than adequate because of overcrowding and capital under-funding. In addition, the study group noted that staff and public attitudes had tended to concentrate effort on hospital care, as a result of which community facilities were relatively under-developed. The study group also formed the view that hospitals were designed to isolate the mentally ill from society and that this isolation still persisted. I wish to commend Deputy Fennell for bringing this Bill before the House. It has enabled us to have a good discussion and debate on the issues concerned. It comes at a time when the Green Paper on this issue is with the Government. I hope that arising out of all these debates and discussions that those of us in this House, including myself, who have had an interest in this matter will see real and lasting progress made, which I think is sought by all members of the House.