Mental Treatment Bill, 1944—Committee (Resumed).
Question proposed: "That Section 65 stand part of the Bill."
Under sub-section (2) of this section, a mental hospital authority is required to keep affixed in a conspicuous position a list of names of the officers and servants employed in the institution whose names are entered in the register maintained under this section. I was wondering whether, as a matter of practice, it will be convenient to have a list of that kind maintained in a conspicuous position in an institution. I imagine that the number of persons in Grangegorman or Portrane to whom the section would apply would be very considerable. I have no objection to the list being kept in a conspicuous place.
The question is whether it would not be better to make an arrangement whereby the list would be available in convenient form for anybody who wished to see it. It might be better if the Parliamentary Secretary would consider placing an obligation on the committee to conform to any regulations he may make in regard to that matter. In the case of a smaller institution, where the number of persons employed would not be great, it might be convenient to have the whole list exhibited in a particular place, but, if the list is very large, I can see difficulties in doing that. I notice that, in certain factories where the proprietor is required to keep exhibited extracts from certain Acts of Parliament, these extracts are not exhibited in such a manner as to convey any meaning to anybody. The type is very small, and the abstract is in a frame, hanging high on a wall, where nobody could read it. I want to avoid that in this case. The intention is that the persons interested shall have access to the list or document, so that they will know what names are inscribed on it. Having regard to the practical difficulties, I suggest that it might be better to have the names entered on a register which would be available to everybody interested.
I do not anticipate any difficulty of the nature referred to by Senator Duffy. It ought to be possible to have a list of the registered officers exhibited in a convenient. place in the institution, where any interested officer can scrutinise it, so as to ensure that his name appears on it. It is rather important that officers and servants should have every facility to assure themselves that they are registered. In the event of an officer or servant not being registered by a mental hospital authority, and claiming that he ought to be so registered, the Bill provides for appeal to the Minister. I realise that Senator Duffy is concerned only with simplifying the machinery, but if we simplify it too much, it may have the effect of depriving an officer or servant of the fullest facility for ascertaining whether he is or is not registered.
I am satisfied that the Parliamentary Secretary is doing what I should like him to do, but I was wondering whether the compilation of a list in the case of a big institution, with 1,500 or more employees, is likely to be the most effective way of making his intention of use to the employees. I suggest that he might amend the sub-section by requiring the committee to comply in this respect with any regulations he thinks fit to make.
I cannot conceive of any more perfect arrangement than that provided for in the section.
Question put and agreed to.
Section 66 agreed to.
SECTION 67.
I move amendment No. 7:—
In sub-section (2), page 29, line 41, to delete the word "one-eightieth" and substitute the word "two-eightieths"; and to delete subparagraph (ii) in paragraph (a), lines 44, 45 and 46.
This amendment and the amendment which follows deal with the same type of person but they cover separate groups. This section provides for the payment of pensions to registered officers and servants who are incapacitated. The effective provision is sub-section (2), which states that an officer or servant of a mental hospital authority to whom the section applies who ceases to hold office or employment on account of having sustained or contracted physical or mental injury, otherwise than through his own misconduct, will be entitled to certain compensation provided that the appropriate medical officer certifies that his incapacity is permanent in so far as it incapacitates him from taking care of patients. The compensation provided is a life pension of one-eightieth of his annual salary and emoluments, plus a lump sum calculated at the rate of one-thirtieth of his yearly salary or wages in respect of each completed year of service. The persons concerned will be what might be described as short-term employees—those who are less than 55 years of age and who have less than 20 years of service with the institution. Had they 20 years' service and attained the age of 55, compensation would be a pension at the rate of two-eightieths of the yearly salary in respect of each completed year of service and a lump sum in addition. The persons concerned will be comparatively young. They will be incapacitated in respect of the work they are employed to do. They may be mentally affected. It is not uncommon to find that people engaged in mental institutions themselves become mentally affected under certain conditions.
I feel in that case it is a mistake to pay a lump sum and that it is a far better plan to pay the maximum which in reason one would suggest by way of an annual allowance. Take the particular case I have in mind, a person who has, let us say, 12 years' service. That person may be 32, 33 or 35 years of age, but he is no longer capable of performing the work on which he was employed. He retired within the meaning of, and under the conditions prescribed in, this section. Assuming his salary and emoluments were £120 a year he would be entitled to a lump sum under the section of I think £48, and to an annual payment of £18— a shilling a day. What I am proposing here in respect of that kind of case, the person with a short service, is that no lump sum would be paid, but that instead the annual pension would be increased so that taking the case I have given as an illustration, the person of 12 years' service receiving £120 a year and retiring permanently incapacitated, would retire with a pension of £36 a year or approximately 2/- a day and there would be no lump sum whatever.
I want to make it clear to the Parliamentary Secretary that in this case I am not representing any interests whatever. It is not my function. There are people, members of this House, who have the function of representing interests in that regard. The fact that they do not think it necessary to attend to make these representations does not concern me. I am making this case as a citizen who takes a particular view as to the conditions which should prevail when people retire from their employment. I agree that the principle of the Bill should be that when a person comes to the full retiring age—in one case here it would be 60 years of age and in another 55—after they have served a long term, that they should get a lump sum and that they should get a pension. I think on the whole, the proposals in the Bill, which approximate very closely to those applied in the Civil Service, are reasonable, but I am putting up what is my own view in regard to short-term employees, people who retire, let us say, under 40 years of age. In my view it is better that they should get a reasonably good pension than they should get a small pension, plus a lump sum.
Senator Duffy made it very clear that the viewpoint he has expressed is his own view. I should like to make it clear that the fullest consideration has been given to the financial framework of the pensions scheme incorporated in the Bill and that the fullest consultation has taken place with the interests concerned. I do not suggest that every employee in the mental hospital service is satisfied that the scheme under which a certain annual allowance will be provided, plus a lump sum, is a better scheme than a larger annual allowance without any lump sum. Clearly if we were to adopt the plan of giving an annual allowance without any lump sum, we could give a larger annual allowance than we can give if a lump sum is to accompany that annual allowance.
Senator Duffy has suggested that in the case of certain registered officers retiring owing to ill-health who have less than 20 years' service, we should abandon the lump sum idea. Certain people may agree with him, but from the amount of consideration I have given to the matter, and the amount of consultation I have had, I am satisfied that the majority of the employees at any rate would prefer an annual allowance, plus a lump sum.
Furthermore, Senator Duffy's plan would not work out equitably. It would upset the entire relationship of the finances of the pension scheme. If we were to abandon the lump sum and give an annual allowance at the rate of 2/80ths a year for each year of service under 20, you would find that an employee with 19 years' service would get 38/80ths of an annual allowance. When we turn to the person with 20 years' service, we find that under the scheme in the Bill, the man with 20 years' service receives an annual allowance of 20/80ths plus 20/30ths of a lump sum. In this whole matter of the value of the lump sum, the persons concerned have to take a certain amount of risk. If the employee who receives a lump sum lives for a very long time, he probably would have fared better if he did not get a lump sum, and if he had got a larger allowance, but should he die within a short time of retiring, the lump sum will go to the benefit of his dependents. That, at least, would be saved out of the social wreck caused by his death.
It is like a life insurance.
Yes. There is one other consideration of vital importance in relation to this matter to which Senator Duffy has not adverted. That is that in Section 71 of the Bill, provision is made for an addition of years if a person retires permanently incapacitated, so that we can in fact within the limits laid down in the Bill, a ten years' limit, add years to his service. Suppose a person retires after nine years' service, under the terms of the Bill that person, if permanently incapacitated, can receive a pension and a lump sum calculated at the rate of 18 years, not at the rate of nine, as suggested by Senator Duffy. The same applies, of course, to the higher rates of service. Under 20 years, the maximum addition would be ten years, so that a person with 18 years of service who becomes permanently incapacitated can be pensioned as having 28 years' service. That is coming up very closely to full pension. Full pension can be acquired after 30 years' service, and the full pension and lump sum payment after 33 years' service.
That is subject to the sanction of the Minister.
It is, of course, but the practice has been and the practice always will be where the breadwinner in such circumstances is permanently incapacitated, to grant an addition of years. There is another radical change. We cannot very well discuss any one item of the whole pension scheme without adverting to the general scheme, and there is a very far-reaching change in the whole outlay of the superannuation scheme provided in the Bill inasmuch as under the law as it stands at the present time, in order to secure an addition of years it was necessary that the incapacity should be shown to be due to the nature of the employment. Now, in fact it was very difficult to establish, and rarely did a claimant succeed in establishing, that the incapacity, or the illness that caused the incapacity, was in fact due to the nature of the employment. Take, for example, pulmonary tuberculosis. When the responsible medical officer came to certify, it was very difficult definitely to certify that such person might not have contracted pulmonary tuberculosis had he never been in the service. That is the type of administrative difficulty with which we were faced. Under the terms of the Bill, there is no such restriction at all. If the incapacity is contracted in the service, it does not matter whether or not it is attributable to the nature of the service; the person gets the full benefit of the scope of the Bill. In the light of those considerations, I think Senator Duffy and every other member of the House should feel satisfied that the superannuation code embodied in this Bill is in fact a very generous one. There is no doubt that it is the most comprehensive and most generous superannuation code that operates in this State today.
I do not question one view which has been expressed by the Parliamentary Secretary, and I accept entirely the statement that the superannuation code is a generous one and is fair to the employees of those institutions. My amendment, as the Parliamentary Secretary recognises, is related to a particular group of people. I should like to know what proportion of the staffs of mental hospitals retire prematurely owing to ill-health. In other words, is there a very big proportion concerned, or is it merely a small number that retire before completing their full pensionable period in the institution? I was approaching this matter from the point of view of deciding whether it is better that a person retiring, let us say at 30 or 35 years of age, should have the largest sum by way of annual payment we can afford to give, or whether it is better that he or she should have a smaller annual sum and take the difference as a lump sum payment on retirement.
That is a matter of opinion. The Parliamentary Secretary has a view about it. I have a view which differs from his, but I am not so sure that he quarrels entirely with my view. I think he bases his argument largely on the fact that a scheme covering the whole field of superannuation in relation to this service has been prepared, and that all parts of the scheme must fit into one another. I think that is his argument. I did not hear him argue that it is better in the case of young people who retire to give them the lump sum and the smaller annual payment as an alternative to my suggestion.
As I am on the subject, perhaps I should say—the Parliamentary Secretary probably knows this too—that so far as the two institutions in Dublin City and County are concerned, the staff are not likely to avail of this scheme. I made some inquiries, after the Bill passed the Dáil, as to what were the reactions of the staff in Grangegorman and Portrane. I happen to know a number of them, as I served some years as a member of the committee of management, and while I do not feel any obligation to take instructions or even to take advice on a matter of this kind from the persons immediately concerned, I was anxious to find out their views. Two or three of them to whom I spoke said that, so far as they knew, none of the staff intended to come under this Bill; that they intended to continue under the Act of 1909. I cannot say whether that is a fact or not, but I would regret it, because this is an infinitely better scheme than the scheme which existed heretofore under the Act of 1909. I mention that as a matter of interest. I realise that people sometimes do not recognise what is best in their own interests; that, for one reason or another, people often make serious mistakes of judgment in relation to their own interests, and I should be sorry if it were to happen that the persons concerned would not avail of the provisions of this Bill.
Ba mhaith liom cúpla focal a rá. I did not intend to intervene in this matter at all, although I happen to be a member of a responsible board. In connection with the statements made by Senator Duffy, that he interviewed some of the employees in both Grangegorman and Portrane, employees in both institutions may, naturally, have different views, but we here ought to apply to the matter whatever little common sense we have. In my opinion, the common sense view is that the small lump sum plus the larger pension would be the ideal thing, because as the employees get on in years they will, naturally, be more in need of the higher annual income which would be available if the lump sum were small. That is the only point I want to make.
Amendment, by leave, withdrawn.
Sections 67 and 68 put and agreed to.
SECTION 69.
I do not propose to move amendment No. 8. It is the same principle applied to a different group.
Sections 69 to 71, inclusive, put and agreed to.
SECTION 72.
Question proposed: "That Section 72 stand part of the Bill."
In this case, the mental hospital authorities have a certain discretion in relation to the awarding of pensions or gratuities. The only point I want to raise is this: whether, in the event of the employees being dissatisfied, there is the right of appeal to the Minister under Section 92?
Question put and agreed to.
Sections 73 to 75, inclusive, put and agreed to.
SECTION 76.
I move amendment No. 9.
In page 34, line 7, to delete the word "three" and substitute the word "six".
There is not much argument about this amendment. It is a question of whether the time prescribed for making the application is reasonable or otherwise. It applies to the position of a female officer or servant of a mental hospital authority who leaves the service of the authority to get married. The section provides that she is entitled to a gratuity if, within three months after so leaving, she produces to the mental hospital authority whose service she has left a marriage certificate showing that she has been married within that period. I am just wondering whether that is a reasonable interval. I can appreciate that a girl from some rural part of Ireland who is employed as a nurse in Portrane might very reasonably leave the institution three months in advance of her marriage, and that, in fact, it would not be practicable for her, therefore, to produce a marriage certificate within three months. The proposal I am making is that she will come within the provision of the section if she produces the marriage certificate within six months of having left the institution.
I would support that amendment. I am trying to tax my memory for details of a certain case, but I cannot recall it just at the moment. It appears to me, however, that there was submitted to me the case of a person who was not aware of her rights, or who was unable to exercise them, within some such short period as this and, as a consequence, was deprived of her rights. I think that the laying down of such a short period as this causes hardship sometimes, and I would press this on the Parliamentary Secretary.
I have no rooted objection to the principle of the amendment, otherwise, this provision would not have been made in the Bill at all. We are anxious that gratuities will be made available to female nurses who retire on marriage, but there is one aspect of this to which I should like to draw the attention of the House. Senator Duffy's amendment might not work out so much to the advantage of the female attendant, who desires to retire on marriage, as appears on the surface. If the time within which she must produce the marriage certificate is reasonably short, it assures, at any rate, that she will be sure of the marriage arrangements before she leaves the service, which is a very important point.
If, on the other hand, she is given a long time to make the arrangements, the nurse concerned may find herself in the position that she has sacrificed her employment in order to get married, and if there should be a breakdown in the marriage arrangements, she might find herself with neither a husband nor a position. That is the only aspect with which I am particularly concerned. If we retain the three months period, the nurse will be sure that there is finality about the matter before she resigns, and I would ask the House to consider that aspect of the matter before pressing this amendment. I feel that, on balance, it is more in the interest of the nurse to retain the short period than to give her a long period.
Would the Parliamentary Secretary consider giving the Minister power to extend the period in certain cases?
I am afraid that if the Minister has power to extend the period, you might as well extend it by Statute because, if there is a danger of any degree of carelessness arising out of the longer period, the giving of such a power to the Minister will not minimise it. I rather think that that is really a matter of the application of worldly wisdom. There is no other principle involved in it, but from my experience of the service I know that quite a proportion of nurses who retire in order to get married, do not get married. We know that in everyday life there is sometimes a breakdown in marriage arrangements, even within a week, and there are great disappointments resulting, and I want to make sure, if I can, that the nurse will not find herself stranded as a result of arrangements which do not materialise.
I think that, on balance, equity is on the side of extending the period. I can see the difficulty that a girl, knowing that she has a long interval in which to seek a gratuity, might not take all the precautions that are desired. On the other hand, however, if she is deprived of the gratuity by Statute, we are doing her an injustice. If the hardship is inflicted as a result of her own carelessness or undue optimism, that is her look-out, not ours.
It might not be her fault either.
Well, I am afraid we cannot guarantee perfection, on whichever side the balance falls, but I suggest that we ought at least to leave the period sufficiently long and say that she shall have some time in which to make her arrangements, and not put her in the position of making such arrangements, let us say, during her honeymoon.
Perhaps it would meet Senator Duffy and Senator Kingsmill Moore if we were all to consider this matter between now and the Report Stage. I can circulate an amendment somewhat on the lines suggested by Senator Kingsmill Moore, and then, if we in our wisdom think that it ought to be moved, we can adopt it on Report Stage, or we can refuse to accept it if we think it ought not to be accepted.
I am quite satisfied with that.
Amendment, by leave, withdrawn.
Sections 76 to 78, inclusive, put and agreed to.
SECTION 79.
I move amendment No. 10:—
In sub-section (1), line 45, to delete the word "one-half" and substitute the word "two-thirds".
This is an instance in which we are dealing with a ceiling that is imposed on all pensions and lump-sum payments. The section provides that an allowance shall not exceed, in the case of an allowance under Section 77 of this Act, one-third of the yearly salary or wages, and, in any other case one-half of the yearly salary or wages. So that, in the great majority of cases the ceiling in respect of the pension is a half of the salary and wages and, in the case of the lump sum, an amount equivalent to a year and a half's salary. I think that the merit of this amendment is in the attempt we are endeavouring to induce trained and experienced people to continue in the service of the mental hospital authority as long as possible. The Minister himself is taking power to fix a retiring age later on. He may, for instance, consider that an attendant must retire at 60 or 65, but under the Bill an attendant who has 20 years' service may retire at 55 and secure a full pension. The actual amount of the pension, of course, would depend to some extent on the age at which that attendant entered the service.
I was hoping that it might be possible, if we allowed a pension to soar somewhat above the 50 per cent., to induce people who are skilled and have been highly trained, very largely at the public expense, to remain on in the service beyond the age of 55. I know that there is a difference of opinion on that subject. I know that many of the attendants, particularly in the Dublin institutions, are disposed to think that there should be compulsory retirement, or at least some inducement to retire, at 55 or, certainly, under 60. I find that point of view, however, expressed mainly by the younger people, who are naturally anxious that their seniors should retire and make way for the younger people. That is a quite natural and understandable point of view. I remember that when I first started to work many years ago there was a strong feeling that people over the age of 40 should retire, but once you yourself reach the age of 40 you begin to take a different view of things. In that connection, I noticed some years ago that we passed special legislation in order to allow a judge to continue in office beyond the age of 70. Different points of view are pressed in connection with this matter of the proper age of retirement. What I am endeavouring to make clear is that if we permit a higher rate of pensions for a person who retires at 55 years we are doing a good thing for the public service.
Once again the House is faced with the proposition that we should combine the advantages of the 1909 Act with the advantages of the Bill as far as superannuation is concerned. Under the 1909 Act an officer or servant of a mental hospital, having given a certain number of years' service, can retire on reaching the age of 55, on a maximum pension of two-thirds of his salary plus emoluments. We cannot have that maximum pension of two-thirds of the annual salary and emoluments and have a lump sum in addition. We must have it one way or the other. I am providing for the other way in the Bill. I am providing for an annual allowance of half the annual salary, plus the value of the emoluments, and a lump sum reaching to a maximum value of a year and a half of service. I thought that we had more or less disposed of the principle involved on the previous amendment but apparently we have to continue to pursue the relative merits of the 1909 superannuation code versus the relative merits of the structure in the Bill.
I do not need to mention to Senators who have looked over this portion of the Bill that existing officers and servants in the service of mental hospital authorities have the right to opt for the terms of the 1909 Bill. We are putting no pressure whatever on them to accept the terms of this Bill. The terms of this Bill will apply to future entrants into the service. Senator Duffy has stated that, so far as he knows, officers in Grangegorman and Portrane will opt for the terms of the 1909 Act in preference to the terms of this Bill. That remains to be seen, but I would say in regard to that matter that the officers and servants employed in Grangegorman and Portrane have been more generously treated in the matter of salary and emoluments than the officers and servants in the general service throughout the State. Consequently, the standards that can be applied to them in the consideration of this matter cannot with full propriety be applied to the general proposition that we have to face.
As I said in the Dáil when this matter was under discussion, the aspect of this whole problem that concerns me most—and I said this in this House on an earlier stage of the Bill— is the wide divergence of conditions of service in the different institutions, anomalies as to valuation of emoluments and as to salaries for corresponding services and duties and so on. My energies have been directed towards getting rid of these anomalies and towards securing uniformity of remuneration for corresponding services rather than creating any privileged class within the section of the community we are concerned about here. I mention this matter, although it is not strictly appropriate to the Bill, for the reason that such an improvement as we may bring about in the salaries and emoluments of the employees throughout the general service will be reflected in superannuation in the future. We have to turn our minds to that. For the benefit of the House I want to give Senators an idea of how that is going to be dealt with. During the past 12 months I have been in close negotiation and consultation with the Irish Transport and General Workers' Union as the representative of the vast majority of mental hospital employees in the State and directly with members of the staff. They pressed very properly for this uniformity of valuation of emoluments and for some uniformity in the matter of salaries.
We have practically reached agreement in that matter, so that we can assume that the basis of the remuneration and the consequential basis of superannuation that I intend referring to now will, in fact, operate throughout the State within the next 12 months. Taking four of the district mental hospitals in which salaries are lowest, namely, Letterkenny, Monaghan, Enniscorthy and Ennis, in order that the House may have an idea how the superannuation code embodied in this Bill will operate, we find that under the 1909 Act a male attendant in Letterkenny Mental Hospital would on 35 years' service get a retiring annual allowance of £80, in Monaghan £82 13s. 4d., in Enniscorthy £83 6s. 8d., and in Ennis £100. When the new scales become operative a male attendant in each of these institutions after 35 years' service will get an annual retiring allowance of £97 10s., plus a lump sum of £292 10s.
It is well that the House should realise that the superannuation code is not the only thing that we have to consider in relation to this matter. We have to relate it to the changed conditions of service that may be brought about when the uniform scales of salaries and emoluments come into operation. The cost of that uniform scale of salaries over the entire State, with the consequential reflection in the cost of superannuation, will amount to £80,000 per annum. That has to be raised out of the rates, for all practical purposes, because while this scheme is nominally contributory in fact the 3 per cent. that is contributed by the officers and servants towards the pension only represents about 16 per cent. of the cost of the superannuation scheme. In the light of all these considerations I think the House will be satisfied that we have dealt with this particular class of officers and servants in a very generous way. As I have already stated, there is no superannuation code in operation in the State to-day that is as generous as the code that is incorporated in the Bill. It is more generous than the Civil Service code, and it is more generous than the prison officers' code, and the prison officers include the officers in Dundrum Lunatic Asylum. People ought to be reasonable, and when the Government goes a very long way towards redressing existing grievances, and towards creating proper social conditions, they ought to get credit for what they are doing.
Amendment, by leave, withdrawn.
Sections 79 to 84, inclusive, agreed to.
SECTION 85.
I move amendment No. 11:—
In sub-section (1), line 41, before the word "amount" to insert the word "appropriate".
I am endeavouring here to cover a point which needs clarification. This is the section which makes provision for contributions to the superannuation fund to which the Parliamentary Secretary referred, and it is provided that the contribution should be at the rate of 3 per cent. of the salary or wages of the employee concerned. In sub-section (1) it is provided that the amount of such contribution shall be deducted from the salary or wages. I am endeavouring here to make it clear that the deduction will be of the appropriate amount. I am not quite sure whether the phrasing is good, but I want to make the point clear. In certain circumstances I can visualise the deduction of a substantial amount. I want to avoid that. Under the Health Insurance Acts and the Unemployment Insurance Acts, there is a specific provision that the deduction in respect of insurance must be made at the time the salaries or wages are being paid. If, for instance, an employer paying weekly wages omitted to deduct health insurance contribution he could not mend his hand in a fortnight's, a month's, or six months' time and deduct all contributions that had accrued in one lump sum. I do not imagine that mental hospital authorities are likely to do this kind of thing deliberately, but if there is provision in the Bill or in the Act making it obligatory on them to make deductions as the wages are paid there will be no risk of it being overlooked, because I take it that it would be the duty of the Department's auditors to see that the regulations are carried out.
I do not think there is any point to meet in the Senator's representation. Sub-section (1) of Section 85 states that an officer or servant of a mental hospital authority shall contribute in each year for the purposes of this Part of this Act 3 per cent. of his salary or wages for that year, and the amount of such contribution shall from time to time be deducted from his salary or wages.
Senator Duffy suggests that we should say the appropriate amount, but the amount is the appropriate amount. We have not Senator Kingsmill Moore here, but I see we have Senator Ryan and Senator O'Dea, and I see these lawyers nod acquiescence in my interpretation.
Will the Parliamentary Secretary explain why——
Perhaps I would explain if the Senator would allow me to continue. This amount for this contribution is deducted from the employees' salaries from time to time. In fact, it is not collected from the ratepaying community at all, because the mental hospital authorities do not touch this 3 per cent. It is not collected and set aside in a special superannuation fund. The superannuation is paid out of revenue from year to year.
Since we have legal assistance here I would like this point cleared up. The deduction is 3 per cent. per annum. The way I read this provision is that if an attendant is paid in salary and emoluments the sum of £150 per year his contribution which would be £4 10s. may be deducted at the end of a year. I may be entirely wrong.
Why at the end of a year if they are paid monthly? It will be deducted from time to time.
That is what I want done.
Well, that is what is being done.
My interpretation is that the deduction may be made at the end of the year, and I want to avoid that.
The amount of such contribution shall from time to time be deducted from his salary or wages. If that is not clear enough to the Senator I am afraid I cannot help him any more.
I do not think there is any necessity to insert the word "appropriate" here because the deduction will take place when the wages are being paid. The deduction is 3 per cent. of the salaries or wages and that is to be deducted from time to time. There is no necessity for the insertion of the word "appropriate" because the appropriate amount is the amount of the contribution deducted from time to time. From time to time means when the wages are being paid. Sub-section (2) deals with the case where the deduction from the wages is not made. In that case the authority may recover the amount in question by retaining it out of any sum due by them to the officer or servant or by withholding any allowance or lump sum payable by them to or in respect of the officer or servant. The whole form indicates that the deductions shall be made from time to time as each payment of wages is made. The amount to be deducted in one year is specifically stated in the Bill at 3 per cent. I do not see any necessity to insert the word "appropriate". That is my opinion.
It may not be necessary to insert the word "appropriate" but what Senator Ryan has said has not made my mind any more happy. He says that the total sum due for the year is 3 per cent. of the salaries or wages and then he turns to the provision enabling the local authorities to recover any deductions not made. If the amount is deducted why is it necessary to have the sub-section making provision for the case in which it is not deducted?
I do not know but I think that somebody would need to look at this section again.
All that is wrong with it is that it is too well drafted.
Amendment, by leave, withdrawn.
Section 85 agreed to.
Amendment No. 12 not moved.
Sections 86 to 89 agreed to.
SECTION 90.
I beg to move amendment No. 13, which is in the name of Senator Quirke:—
In page 40, to delete in line 54 the words "or refund of contributions" and substitute the words "marriage gratuity, refund of contributions or other payment"; and to delete in lines 59 and 64 the words "or refund" and substitute in each case the words "gratuity, refund or other payment".
This is a drafting amendment, consequential on an amendment made on the Report Stage in the Dáil providing for marriage gratuities.
Amendment agreed to.
Section 90, as amended, agreed to.
Section 91 agreed to.
SECTION 92.
Question proposed: "That Section 92 stand part of the Bill."
This section provides for an appeal to the Minister within six months of the resignation of the officer concerned. That may result in hardship. I know that the same provision is embodied in the Local Government Act, 1925. Before the Act of 1925, the appeal could be taken within six months of the granting of the pension or allowance. If the authority delays the granting of the pension for more than six months, then the officer will have no appeal at all. Even though the provision follows that in the 1925 Act, I think that the wording of the 1925 Act was unfortunate and that we should revert to the old system. Perhaps the Parliamentary Secretary would look into the matter before the Report Stage.
I shall look into it. I had rather thought that, in practice, the six-month period had worked out all right and that nobody had been cut out by reason of delay in determining the award, in the first instance. If there seems to be even a remote possibility that, by recalcitrance on the part of the authority or other people concerned, the six months might expire before the award, I shall be prepared to consider the question of extending the time.
There was a case on which the six months did expire by reason of delay on the part of the local authority in fixing the amount of the superannuation.
That was before democracy operated through the county managers.
Section 92 agreed to.
SECTION 93.
Question proposed: "That Section 93 stand part of the Bill."
Perhaps the Parliamentary Secretary would give us some indication of what he has in mind in relation to the fixing of the retiring age. There is a suspicion amongst some of the people to whom this Bill applies that the tendency is to fix an earlier retiring age. In some cases, it is thought that the retiring age will be fixed at 55. I do not know whether the Minister has that in mind or not. It would be a pity if regulations were made which would necessitate the retirement of people who have acquired a good deal of skill in their work while they were still capable of discharging their duties. I do not want to express any view as to what the age of retirement should be, because the Bill deals with many classes of people. In the case of craftsmen, the full rate of pension is payable at the age of 60. Nobody would suggest that a carpenter or plumber should be required to retire at 60 merely because he is an employee of a local authority. He certainly would not retire from active work at that age in the ordinary course. Somewhat different considerations would apply in the case of those who have constantly in their charge mental patients of a different type. Then the question of the clerical and medical staffs of those institutions arises. Different considerations would apply in each case. Therefore, I do not say what the retiring age should be, but I should like to get some indication as to what the Parliamentary Secretary had in view when inserting this section.
The House will appreciate that the section merely empowers the Minister to make regulations declaring the age at which officers and servants shall cease to hold office or employment. No firm decision has been arrived at as to what the appropriate retiring age should be. Before reaching a firm decision, I propose to take steps to ascertain the general feeling amongst the bodies of workers concerned. That may seem an unusual line of action. At the same time, I think that it is useful to know how the people concerned are thinking and feeling about these matters. It does not necessarily follow that we shall do exactly what they would wish to be done. So far as the registered officers and servants are concerned—the officers and servants who are engaged entirely in the care and treatment of patients—Senators will realise that theirs is a very trying type of employment. I do not think that any public employment is more trying or more difficult or calls for a higher degree of character or a more humane outlook. Those people have to be specially selected and they are a very special body of men and women who give tremendous service to the community and lead a very difficult life. If any of you ever went through any of these institutions—I often did in an official capacity and otherwise—I think that you would be glad to get out as quickly as possible and that, if you had any alternative, you would not stay there for any money. In fact, the people who devote their lives to that service almost require a vocation. Those who are constantly, by reason of their occupation, closely associated with the patients in these institutions ought ordinarily to be retired at an earlier age than people employed in other walks of life. When I say that, I think that common sense ought to be applied. While the Bill provides that an officer or servant can retire on full pension at the age of 55, it is, undoubtedly, true that a considerable proportion of officers and servants might, at the age of 55, be still capable of very good service.
If they were physically and mentally suited for continued employment, I personally would not be inclined to push them out of the service by sole reason of the fact that they had reached the age of 55 years. On the other hand, the usual age for retirement for officers and servants of local authorities has now been fixed at 65 years. I rather think, so far as employees in these institutions who are devoting their entire time to the care and treatment of patients are concerned, that the compulsory retiring age should be about 60. I do not want to be held up to ransom on this matter. I am not giving any firm decision; I am merely indicating my present line of thought on the matter. With the information at present at my disposal I would be disposed to fix 60 years as the upward limit for retention in the service of attendants and officers who are devoting their time to the care and charge of patients. Other officers would be in the same category as officers of other local authorities—I mean the clerical officers and the administrative staff who have nothing to do with the care and treatment of patients. The retiring age in their case would be the same as that applying to officers and servants of any other local authority.
Sections 93 to 104, inclusive, agreed to.
SECTION 105.
Question proposed: "That Section 105 stand part of the Bill."
May I inquire what is the position of members of a joint board in relation to the holding of public contracts? In the case in which the county council is the mental hospital authority, the existing law covers the holding of contracts by members of the county council, but, so far as I can discover, no provision is made here relating to members of a joint board, and the provisions applying to ordinary members of the county council do not apply to them. I agree that circumstances are not quite what they were in 1898, and that in the main the contract is placed not by the joint board, but by the county council. At the same time, I think it is worthy of note that cases will arise in which, although the contract is placed by the county council, the council is influenced by members of the committee. I have heard of one case actually in which a contract was placed by a joint committee to which the board was the successor with a member of the committee of management and was placed very largely because the person interested was a member of the committee of management. I draw the attention of the Parliamentary Secretary to this matter because I think there should be some uniformity in the law. If it is proper that the placing of contracts by the county council with members of that body should be prohibited by law, then it should be prohibited also in respect of members of the joint committee.
It is not prohibited in respect of members of the joint committee under this Bill and I am not prepared to argue about any other Bill.
I take it the Parliamentary Secretary does not propose to prohibit the placing of contracts with members of the board?
No, on the thesis that the members of a joint body have nothing to do with contracts. It is a managerial function.
It is my belief they have.
But the Senator has some extraordinary beliefs.
The Senator is speaking from experience. I shall certainly have the matter raised again on the next stage.
May I suggest that it would be better if Senator Duffy had this matter cleared up now? He says that he has had experience of this matter. Do we understand that he has had actually experience of this under the present managerial system?
I am aware of a contract placed by the body to which the joint board is successor in the last 18 months with the family of a member of the committee. The matter was raised with the people concerned, which means the manager or the clerk of the institution in this case. The contract had been placed and would not have been interfered with only for outsiders discovering this.
I have a feeling that since the County Management Act of 1940 and the Local Government Act of 1941 were brought into operation, both on the 26th August, 1942, the former enactments, relating to the prohibition of a member of a local authority entering into a contract with that local authority, have been abrogated by reason of the fact that the making of contracts was, by the County Management Act, vested in the county manager. I am not quite certain, therefore, whether the Senator is quite accurate as regards the present state of the law, which may prohibit a member of a local body such as a county councillor entering into a contract with the county council, the contract being made on behalf of the county council by the county manager. I am not quite certain of that, but I have a feeling that the position is as I have stated.
Question put and agreed to.
Sections 106 to 108, inclusive, agreed to.
SECTION 109.
Question proposed: "That Section 109 stand part of the Bill."
I should like to call attention to the provisions of sub-section (7) of this section, in which I think there is a wrong citation. I am of opinion that there is no County Management Act known as the County Management Act of 1939.
The Senator is right. It should read the County Management Act of 1940.
Senator Duffy is right in that.
He may be. It is a printer's error.
Has nobody read it since it was printed?
We were too busy reading the Senator's speeches.
I think that the preparation of this Bill must have commenced about the year 1939.
The County Management Act was introduced in 1939, and was known as a County Management Bill, 1939.
I take it this will be corrected?
Question put and agreed to.
Sections 110 to 134, inclusive, agreed to
SECTION 135.
Question proposed: "That Section 135 stand part of the Bill."
Is there by any chance a mistake in this: "It shall not be unlawful for any person to carry on a private charitable institution unless it is registered in the register and such person is the registered proprietor thereof"?
"It shall not be lawful."
But that is not what it reads.
It is clearly a printer's error, because in the copy before me it is: "It shall not be lawful".
An Leas-Chathaoirleach
In my copy it is: "It shall not be unlawful".
It might be either: "It shall not be lawful" or "It shall be unlawful".
"It shall not be lawful" is what appears in the copy before me.
A double negative has crept in here.
The printer was bewildered.
I take it that will be corrected on the Report Stage?
Question put and agreed to.
Sections 136 to 147, inclusive, put and agreed to.
SECTION 148.
Question proposed: "That Section 148 stand part of the Bill."
I suggest, for the consideration of the Parliamentary Secretary, that that should read: "No addition to or structural alteration of the premises of a private charitable institution". As it stands, this might apply to the changing of curtains, and I am perfectly certain it is not meant to do that. I take it that the idea behind the section is that, if there is to be any alteration, say, in the rooms or the heating arrangements or anything like that, the Minister should approve of it. As I have said, the section as it stands would apply to the changing of curtains.
I wonder would it? Of course, I would not take it upon myself to question the distinguished Senator's interpretation of the law, but I wonder would a court of law hold that these words: "No addition to or alteration of the premises" apply to the changing of curtains?
Courts of law are certainly extraordinary places.
It might apply to the substituting of one type of door for another. I merely raise the matter for consideration as to whether some limiting word should not be put in on the Report Stage.
I will have the matter looked into. The point I wish to make by way of explanation of the section is that we must be satisfied that there is sufficient cubic space, and so on. We want to guard against the possibility of the erection of partitions or perhaps the putting of two patients into a room which was really intended for one, but of course we do not want to interfere with the changing of the curtains.
That is why I suggest putting in the word "structural".
Should not the word "or" be "nor"?
We might insert the words: "No addition to or alteration of the premises."
An Leas-Chathaoirleach
The Parliamentary Secretary has promised to look into the matter.
It is purely a matter of drafting.
Question put and agreed to.
Sections 149 to 162, inclusive, put and agreed to.
SECTION 163.
I beg leave to move amendment No. 14:—
In sub-section (1), page 63, to insert before paragraph (a), line 31, the following paragraph:—
"(a) approve the certificate of a registered medical practitioner who has been attending the person to whom the application relates,".
After that, there is the word "or", which unfortunately is dropped out of this printing, and then it continues "visit and examine the person to whom the application relates". There is a certain amount of difficulty in presenting that, because, in distinction from the amendments presented this afternoon to this House, this touches a professional and rather technical subject—the relations between the general practitioner and the authorised medical officer. Of course, as we know, this Bill has been very carefully considered by the Parliamentary Secretary and his advisers, and I am pretty certain that this thing may have arisen already. The attitude of the House might easily be: "Here is something which really is too technical and professional for us to discuss," especially after a rather tiring afternoon. At the same time, I hope my colleagues will allow me to raise this amendment, which is really linked up with amendments Nos. 16, 17 and 18, and I do not propose to discuss each of them separately.
If this amendment falls, the other amendments fall with it. The reason why I ask your indulgence in raising the amendment is that I think it touches commonsense, and touches the interests of all of us. Whether or not this amendment be accepted by the Parliamentary Secretary, I feel that in the interests of all of us the arguments in favour of it should be put before the House and go on the record, because subsequently, when possibly the Act will be examined and analysed, somebody may say: "Have these arguments ever been brought forward? If so, why were they not accepted, or why were they accepted"?
As far as I can see, the progress of all our social developments and medical developments in legislation in this country has been to increase the functional utility of the dispensary doctor. He is now being provided with a very well organised Civil Service, and a very devoted Parliamentary Secretary, who seems prepared to take no end of pains; so he is going to be a very much more important servant of the State. But, in addition, his duties are being increased very much indeed. We are expecting a great deal more of him, and among the things we are expecting him to do is to give a decision as to whether or not a person will be certified as insane. The hope underlying this amendment is to make it easier for the authorised medical authority to avail himself of the services of such a person who is in a position to aid him in giving information about the state of his patient on examination. Mental disease is unique in many ways. It is the only disease which may be very seriously affecting a person while he is showing no physical indications of it. Secondly, it is an extraordinary disease in that there are lucid intervals, so that very often it requires a period of observation. The person who perhaps best knows the condition of the diseased person's mind is whatever medical practitioner has been looking after him. In addition, the adjudication is rendered all the more difficult because there are so many varieties of mental disease.
That point was touched on yesterday by Senator Duffy and by Senator Baxter. There is really no satisfactory definition of insanity. It is now, I believe, spoken of as a disease of behaviour, and we, thinking our behaviour is normal, regard certain deviations from that behaviour as abnormal. In other words, sanity is the madness of the majority. To acquire the power of recognising mental disorder is very often a matter of very considerable experience and very considerable training. In this case the medical officer has a terrific responsibility. It must be realised that the medical profession is the only one in which the judge is also the hangman. The medical officer is called on to make a very serious decision. By framing this amendment and presenting it to the House, I should like to make it possible for the medical officer to avail himself of whatever knowledge there may be as to the patient's welfare, which is already in the hands of his appropriate medical practitioner. I should like it so arranged that the authorised medical officer will be helped as much as possible. I think that we may save him time, I think we may save him a rather laborious examination, I think we may save him an examination which, in certain circumstances, may give ambiguous results, if we make it possible for him to have the certificate of the medical practitioner who has been attending the person to whom the application relates. I am not going in any way to relieve the authorised medical officer of any responsibility in the matter. His responsibility remains. He has to approve of the certificate. He will receive his customary fee for approving the certificate. He will do work, and he will be paid for the work he does. If he considers that that certificate is satisfactory, he can act forthwith on the certificate. If he considers that the certificate is not entirely satisfactory, he can visit and examine the person to whom the application relates. In many cases, of course, there will not be a registered medical practitioner attending the person, and, consequently, there will be no question of a certificate. In some cases there will be. I think the most important cases are those of the temporary patients.
I can quite see that, if a patient has been treated by his own practitioner, and the practitioner wishes to persuade that patient to undergo the proper institutional treatment, it would be very much easier if the registered medical practitioner, who knows the patient, is able to arrange for his reception. I can quite see conditions arising where the appearance of an outsider, however sympathetic he may be, might easily precipitate a serious disturbance in the mind of the patient.
One of the great features of this Bill is the getting of the borderline case. If I may say so, that was very effectively brought up here yesterday, on the question of those clinics which will make it possible for a person to receive treatment before his condition has become too far advanced. An exactly similar point arises in connection with cancer. The treatment of cancer is very often a question of early diagnosis. As the Parliamentary Secretary has several times rightly emphasised, the treatment of many forms of insanity is a question of early diagnosis. It would be very much easier for the early diagnosis to be effected by the practitioner who has been treating the patient, and is able to certify his case, than by the authorised medical officer who may be a complete stranger, who has to come in and make an examination, and who may possibly get rather misleading results from it. Of course, I am only making a case and taking a point of view that may be necessary, but I realise that there are very great dangers there. We are all concerned either directly or indirectly with some of those problems, and I think that the people who are mostly affected here are the relatives. Those are the views I wish to put forward, and my main lines are, first, that I believe this would be of help to the authorised medical officer by making information available to him, information which he need not necessarily act upon unless he wants to do so, but which he can act upon, if he thinks necessary. I think that it will help the medical practitioner by providing a better liaison between him and the dispensary doctor, and I am certain that it will help the patient, because, very often, people consider that the doctor they know is better qualified than the doctor they do not know. I think that this would be very important in leading the patient across that rather sinister threshold, and that it will afford him the means of fair and satisfactory treatment.
Business suspended at 6.05 p.m. and resumed at 7 p.m.
I have to ask the House to oppose the amendment put down by Senator Fearon. I do that with a certain amount of reluctance because of the convincing manner in which Senator Fearon presented his case. Unfortunately, he did not present all aspects of the matter, and it is my duty to point out to the House the flaws in his argument and the points against the amendment that, of course, Senator Fearon did not present to the House and could not be expected to present to it. Now, I would remind the House that the class of patients we are dealing with here are chargeable patients. We are not dealing with any class of patients in this particular setting, or this amendment, other than chargeable patients, and Senator Fearon asks us to presume that a chargeable patient will have a private doctor other than the dispensary medical officer of the district. It seems to me that if a patient has a private doctor in attendance, that patient is not and cannot be a chargeable patient. In the definition section, a chargeable patient means a patient who is receiving mental hospital assistance and who, with the persons, if any, liable to maintain him, is unable to provide the whole of the cost of such assistance. Now, the term "chargeable patient" is a new term in substitution for the term "person entitled to assistance under the Public Assistance Act", but the definition of "chargeable patient" is exactly the definition of the corresponding person under the Public Assistance Act.
I felt, when this Bill was being drafted, that with all the talk we have had about the stigma of being in receipt of public assistance, it was better to have a new classification. Otherwise, a term other than this would have been used in this classification. In order that we may thoroughly understand it we may refer to these people as dispensary patients. Dispensary patients are entitled to the services of the dispensary doctor, and for the purposes of this Act the dispensary doctor will be the family doctor. Senator Fearon puts a scheme before the House under which such a patient could call in a private doctor.
I cannot see how that scheme could operate at all. The dispensary doctor is under a statutory obligation to attend such patients. Suppose for a moment that we did make this concession to Senator Fearon, who, undoubtedly, is very sincere about the matter. The position might arise that the dispensary medical officer who, in fact, will also be the family doctor and may have been attending the patient over a long period without payment, perhaps, would be displaced at this critical time in the patient's history by an outside doctor, because it is inconceivable that there would be a private doctor in normal attendance on the case. If the case was a private case, the machinery for admission is different altogether. Two private practitioners recommend the patient for admission to an institution if the patient is a private patient. I do not know if it is necessary to pursue the matter any further. In fact, under the existing law—I do not know whether that is a thing that should be taken as an example of how things should be done—the dispensary medical officer is the only person who can certify what is prescribed under the existing law as "a dangerous lunatic." You know the system of committal, and we need not waste any time upon it. It may be suggested that there are borderline cases that are not altogether public assistance cases and that, on occasion, they are able to pay a doctor for attendance and that a private doctor should be permitted to recommend in such cases, under the certification of the dispensary medical officer. There are such cases, but I think it is rather unfair that we should adopt such a scheme under which a person, who ordinarily could pay for his medical attendance, as soon as it becomes a question of his being maintained in an institution, becomes a full charge on the rates. I do not think that that is logical or reasonable. If he is entitled to free maintenance in this institution at the expense of the ratepayers, well, then, he should be a person who ordinarily could not afford to pay a private medical practitioner as his family doctor.
One other point I should like to make is that the dispensary medical officer has full authority, under the Public Assistance Act, to call to his assistance any medical practitioner for consultation on any case where the patient is entitled to medical assistance. Similarly, if there is any doubt in the mind of the doctor, if the relatives are not satisfied, and if he indicates his readiness to make a recommendation or, alternatively, indicates his unwillingness to make a recommendation, there is nothing to prevent him, under the Public Assistance Act, from calling in another doctor and the local authority will pay the doctor's fee. All that is provided for in the law as it stands at the present time. I, personally, apart from these arguments which, I think, are rather overwhelming, would not take kindly to the principle of any doctor recommending a person for detention in a mental institution without having seen the patient. Of course, Senator Fearon may tell us that, under his amendment, he can either countersign or examine the patient. I do not think that under any circumstances we should recommend the admission of any patient by a doctor who has not seen the patient. While I have no doubt of Senator Fearon's sincerity in proposing this amendment, I do not think it fits into our existing scheme of things, and I think it refers more to the conditions of city life than to what obtains in the provinces.
I am very much impressed with what the Parliamentary Secretary has said in regard to this particular amendment but, of course, chargeable patients would ordinarily speaking be dispensary patients. May I ask the Parliamentary Secretary if he intends to maintain the same line of argument, and the same opposition to the later sections on which the same amendment is to be put down? One of these applies to private patients, and the other applies to patients who, so to speak, are taken up by the Gárda Síochána because they show signs of temperamental aberration and may become chargeable. I ask this question because my attitude would depend on whether the Parliamentary Secretary was confining his opposition to the case of chargeable patients.
We have already agreed that amendments Nos. 14, 16, 17 and 18 hang together.
When I was making my case the Parliamentary Secretary in his answer based the major portion of his argument upon the view which I have no doubt is correct, that in the section with which we are now dealing, the patient would ordinarily be the patient of a dispensary doctor, and would send to him, but to make it compulsory on the dispensary doctor to call in another doctor in regard to his own patient was a different thing. To make it optional for a patient to call in another doctor was perfectly understandable. The same argument does not apply in the case of a well-off person, with a private medical attendant who has been looking after him for perhaps a number of years. I think a great deal of harm might be done in forcing the private medical attendant to call in a dispensary doctor, and that is what I think would happen in Section 155 under which the patient may be chargeable or not.
No, Section 184 deals with the chargeable patient and Section 185 with the private patient.
I do not think these amendments apply to the private patient at all.
I beg your pardon, I misread Section 184 and read the side note, but this would apply to Section 165 where a person might or might not be chargeable.
The amendment on Section 165 is a different amendment.
Again I beg the Parliamentary Secretary's pardon, I misread the paragraph.
These amendments all hang together then?
I am grateful to the Parliamentary Secretary for the considerate way he has treated my rather clumsy presentation of this amendment, but it has been made a bit difficult owing to the relationship between the amendments. It is pretty plain that we ought to see eye to eye, because we really have the same interests at heart and are very anxious to make this Bill a success. I agree with some of the criticisms of the Parliamentary Secretary, but I am rather slow about working them out. Could I have the permission of the House to withdraw the amendment in order to consider it at leisure? There ought to be no serious difficulty in reconciling the viewpoints. I do not for a moment imagine that a chargeable patient should have a private medical attendant, but in the case of the temporary patient I want to make it easy for him to avail of the services of the doctor who has been looking after his welfare and interest.
He will if he is not a chargeable patient. We will not interfere at all in the relationship between him and his family doctor if he is not a chargeable patient.
May I inquire whether it is clear in relation to Section 163 that it applies only to a chargeable patient?
It is if you read Section 162.
I suggest the sections stand together.
The drafting is all right; the Senator need not worry about it.
Amendment, by leave, withdrawn.
Amendments Nos. 16, 17, 18 not moved.
Sections 163 and 164 agreed to.
I move amendment No. 15:—
At the end of sub-section (2), line 23, page, 64, to add the words "or should happen to be at the time of removal".
This is a very small point. It is concerned only with the suggestion that at the end of paragraph (2) there should be added the words "or should happen to be at the time of removal". It is to avoid the possibility of a person coming we will say from the south, without any criticism of the south, and having some disorder and then somebody acting according to the letter of the law and deciding that he would have to be taken back to the district mental hospital of the place in which he ordinarily resides. Section 176 I believe makes this amendment unnecessary, but I thought in the interest of clarity it might be well to extend sub-section (2) of Section 165 by the inclusion of these words so that it would read:—
".... for the reception and detention of the person as a person of unsound mind in the district mental hospital for the mental hospital district in which the person ordinarily resides or should happen to be at the time of removal".
There is no clash of principle or policy involved in this amendment, but I am advised by the draftsman that the point is fully covered by Section 176. I suggest that between this and the Report Stage, Senator Fearon might look into this and relate it to Section 176, and also read with it Section 108 that deals with the admission of persons from districts other than the district in which they ordinarily reside. Section 108 says:—
"Where a person received as a chargeable patient in a district mental hospital or other institution maintained by a mental hospital authority is not ordinarily resident in their mental hospital district, such authority shall give notice of the reception to the mental hospital authority".
and so on, and it sets out the machinery for the transfer of a patient to the appropriate district hospital and for the financial responsibility. That is where the person comes, say, to Dublin from the country. When Section 108 is read with Section 176 you will find the position covered.
Amendment, by leave, withdrawn.
Sections 165 to 204 agreed to.
SECTION 205.
Cuirim an leasú so os comhair an tSeanad ar son an Seanadóir O Coirc. I move amendment No. 19 standing in the name of Senator Quirke:—
Before Section 205, page 78, to insert a new section as follows:—
205.—A mental hospital authority, acting on the advice of the resident medical superintendent of their district mental hospital, may—
(a) transfer a patient detained in such hospital to any other institution maintained by them, and
(b) transfer a patient detained in an institution (other than such hospital) maintained by them to such hospital or to any other institution maintained by them.
This amendment is self-explanatory. In fact, it has been the practice to transfer from one institution to another a patient maintained in a mental hospital, for example, from Grangegorman to Portrane and vice versa. That has always been done, but when the code came to be examined it was discovered that while that had been the general practice there did not appear to be any statutory authority for it. The section merely provides the statutory authority to transfer a patient from one institution to another.
Amendment put and agreed to.
Section 205 agreed to.
May I call the attention of the House to the fact that there is a big gap of sections between Section 205 and Section 280 to which there are no amendments. Is it necessary in the circumstances to call sections consecutively? If Senators would indicate the sections upon which they desire to raise points, perhaps we could proceed in that way.
SECTION 206.
Question proposed: "That Section 206 stand part of the Bill."
This section deals with the case of a person detained in a country hospital who is charged with an offence. He is charged before a district justice and, as I understand it, the district justice does not determine what is to be done with him. He makes a report on his condition and following the report the Minister considers the case. After consideration of the report of the inspector of mental hospitals, if he thinks fit, he directs the removal of that person from the district mental hospital to the Dundrum Criminal Lunatic Asylum. That is a perfectly normal and natural procedure. What I am wondering is whether there is in fact a conflict of authority. I understood it was the Minister for Justice was responsible for control of Dundrum Lunatic Asylum. I wonder whether it is necessary to make provision here requiring the Minister for Justice to accept a person in Dundrum who is ordered to be sent there by the Minister for Local Government and Public Health. I am not questioning anything regarding the construction of the section, except that I am curious to know whether there is in fact a conflict between the authorities.
If there is any conflict I can assure the House that it must be a conflict of phraseology. There has not been a conflict on a matter of policy as between the Department of Justice and the Department of Local Government and Public Health. Senators are aware, and legal men particularly would be aware of the cumbersome and unhappy machinery that exists to deal with such cases. There are two matters to be considered. The Department of Justice will have to satisfy itself that the person is unfit to plead and that a prima facie case can be established against him. In the ordinary course of things an inmate of a mental hospital would be brought before a district justice. He would be returned for trial to the Circuit Court, and all that unfortunate procedure of trial would have to be gone through in the prior knowledge that the person was not responsible for his actions at the time the alleged crime was committed.
Both the interests of the Department of Justice and the Department of Local Government and Public Health would appear to be reconciled. The Department of Justice can come in and satisfy themselves from the legal point of view, that the man is unfit to plead, and a prima facie case has been established against him. Medical science comes in at that stage. We send the inspector of mental hospitals to report and, on consideration of his report, the Minister will decide whether the man in fact is a suitable case to be transferred to Dundrum Criminal Lunatic Asylum. I do not see any conflict of authority. So far from a conflict there is a desirable degree of co-operation in dealing with a delicate and unhappy problem in a more rational way than it has been dealt with before.
This section deals with the case of a person detained in a district mental hospital or in other institutions maintained by local mental hospital authorities charged with an indictable offence and brought before a justice of the District Court. There is a number of cases in which a person charged with an indictable offence before a district justice may not be detained in a district mental hospital or other institution maintained by local mental hospital authorities, and perhaps the machinery contained in this section may be extended to cover such cases. We have seen almost every year where men obviously insane from the beginning are arrested, charged before the district justice and the newspapers report that he appears to take no interest in the proceedings. He is obviously insane, of unsound mind, but he is sent back to Mountjoy or some other jail and brought before the district justice again at a later date and depositions taken. He may be liable to be indicted before a jury which involves long and tiresome proceedings taking place in the District Courts by way of depositions.
Then he is returned for trial to the Circuit Court or to the Central Criminal Court, generally to the Central Criminal Court, and a jury is empanelled to ascertain whether he is fit to plead or not. This jury may disagree and another jury has to be empanelled until some finality is reached. All this costs the State a lot of money and a lot of time is wasted. This section, therefore, is a very welcome one, because the district justice can make an order, summarily so to speak, if he is satisfied that on the evidence before him the person charged if returned for trial would be unfit to plead. Some provision should be made to cover the case of a person obviously insane, who is not detained in the district mental hospital or other institution maintained by a local mental hospital authority at the time he is charged. In most cases the person charged with an indictable offence and discovered afterwards, or at the time of the offence, to be insane has to spend a considerable time in jail before being charged. It should be possible to have such a person taken out of jail and sent to the Dundrum Criminal Lunatic Asylum without having to send him into a mental institution in order that he should come within the provisions of this section. Perhaps the Parliamentary Secretary might be able to give us some information on that point.
I do not think I can agree with Senator Ryan. Very often a person charged with murder will pretend to be insane if he has no defence and he will act in an insane manner in the prison or wherever he is. Such a person may very easily deceive the district justice and the doctors too. I have known it to be done. By making the change suggested you are cutting out the procedure already in existence whereby he must be returned for trial and then tried by a jury to know if he is fit to plead or not. It is very dangerous to take short cuts in matters of that kind.
The section provides that where evidence is given which in the opinion of the justice constitutes prima facie evidence that such person has committed the offence and that he would, if placed on trial, be unfit to plead, the justice shall, by Order, certify that such person is suitable for transfer to the Dundrum Criminal Lunatic Asylum. That assumes that medical evidence would be given before the district justice to the effect that if the man was put on trial he would be unfit to plead so that the justice would in fact be acting upon the evidence tendered before him.
Prima facie evidence refers to both, first, that the person has committed the offence, and secondly, that he would be unfit to plead if placed on trial. We are getting into deep water there, and I think it is very dangerous.
Senator Ryan, as he frankly told the House, has raised a much wider issue than the issue involved in the section. He has raised an issue that cannot be dealt with in a Mental Treatment Bill. It is well worthy of consideration. The line of thought expressed is represented in our line of approach to the patient already detained in a mental hospital who is guilty of an indictable offence, perhaps guilty of assaulting another person, perhaps having caused the death of another patient or of an attendant. That is the type of case we have in mind. The machinery we have in mind to deal with this particular problem might, perhaps, with necessary modifications, be adopted to deal with the corresponding patient who has not yet been detained in a mental hospital. If it is desirable it could only be put into operation by an amendment of the criminal code. I shall bring the matter to the attention of the Minister for Justice for his consideration in the event of a Bill being brought before the Oireachtas to amend the criminal code. There is a lot to be said for Senator Ryan's views on this matter where there is no obvious doubt that the person is of unsound mind, but you get into rather dangerous waters where the person pretends to be insane in order to avoid the consequences of his actions. Senators will observe, if I am not keeping the House too long, that this section will only become operative if and when the district justice sits in a mental institution. That, I rather think, will involve an amendment of the rules of court in order to enable the district justice to sit in the institution so that we must have the full co-operation of the Department of Justice in the matter. I feel that when we are doing the thing at all it would be absurd to have to haul a person out of a mental hospital for trial in the District Court. Unless we can get the district justice to sit in a mental hospital, the section will not become operative.
In sub-section (4), provision is made for the discharge of a person from the central criminal lunatic asylum when it is certified that he has recovered from the illness for which he was committed. That is one of the few cases in which a report, on discharge, is not to be sent to the Minister. If a person in a district mental hospital dies or if he is discharged, a report has to be submitted to the Minister. In this instance, there is a departure which I do not quite understand. A person is taken out of the district mental hospital and sent to the central criminal lunatic asylum because he has been charged with an offence——
In that case, the report would go to the Minister for Justice. We come in merely to certify on the medical aspect of the case.
He was the patient of the Minister for Local Government in the district mental hospital.
He has now become an inmate of the criminal lunatic asylum and he is passed over to the Department of Justice.
Section 206 ordered to stand part of the Bill.
Sections 207 to 217 agreed to.
SECTION 218.
Question proposed: "That Section 218 stand part of the Bill."
This section makes provision in relation to persons discharged from a district mental hospital where no relatives are known or can be traced. Sub-section (3) provides that, where a person detained in a district mental hospital or other institution maintained by a mental hospital authority is discharged under this section, the authority may, if they think proper, pay to, or in respect of, him such sum as they consider reasonable towards his travelling expenses on his journey to his home. This provision seems to me to be hardly adequate. Let us assume that a person has been for a period of years in a district mental hospital. He may find it very difficult to trace his relatives, if he has any. This provision deals with cases where it is impossible to trace relatives. After such a lapse of time, when the patient has lost contact with society, he is to be put on a tram or train and sent home. No provision is made to deal with him on his arrival. That can be a very serious matter under certain circumstances for a person released from a mental hospital.
If he is fully recovered, I assume that he will be able to manage on his own behalf when he returns home.
He has no relative, but he is assumed to have a home. If he has recovered, I scarcely think that he is any longer a subject for mental treatment. He may get poor law relief or some other type of assistance, such as home assistance. But mental treatment is at an end when the person in charge of the district mental hospital is satisfied that he has recovered.
There is a provision in Section 223 to deal with the case of a person entitled to public assistance. If we may use the old expression, we are dealing there with the pauper patient—the person who is discharged from a mental hospital and who, in the past, would have been regarded as a pauper. He would have been entitled, under Section 223, to get poor law assistance. However, I have in mind a person who is actually in a mental hospital. Everything I have heard of him confirms the view that he is no longer any danger to himself or anybody else. I understand that he has an excellent time solving crossword puzzles and entertaining himself in other ways. If that person were discharged under this Bill, as he probably will be, and could get on his feet, I think that he would be comfortably off because, so far as I know, he has some property and is entitled to an income. Seeing that we have gone so far in this Bill to meet all kinds of difficult problems, I wonder if we could not empower the mental hospital authority to do something to re-establish this man on his discharge, as he would not be entitled to public assistance.
I do not think that it would be possible to make provision for the contingency envisaged by Senator Duffy. What he asks us, in effect, to do is to make provision for some form of financial assistance to a private patient. If a patient is a chargeable patient, he is entitled to public assistance. If he is entitled to public assistance, there is no difficulty whatever in obtaining it. If a patient is destitute—if he has no home to which to go—the mental hospital authority is given statutory power under Section 223 to transfer the patient to a local authority institution. When Senator Duffy asked us to go a step further and make provision for a person who does not require it and who has private means, he is asking us to do too much. He is either a private patient—a person who is maintained out of his own estate or by his relatives—or he is a person who is maintained, in whole or in part, out of the local rates. If he is maintained, in whole or in part, by the local rates, he is entitled to public assistance. I did not like the Senator's reference to paupers. There are no paupers in this country and I hope we shall never see them again. There are people of limited means and of very little means, but the State and the local authorities long ago faced up to their social and moral responsibilities in making the necessary financial provision for those people. That provision applies to mental patients as soon as they are discharged because, when discharged, they cease to be mental patients. They are either persons entitled to public assistance or not so entitled. If the patient is not entitled to public assistance, he must be in a position to lav hands on some means of living. He has either a home to which to go or property of his own or a business. He cannot be classified as a destitute person.
We have made every possible provision to cover contingencies that may arise in so far as the low-income classes are concerned and I think we cannot ask the local authority to make provision out of public funds for classes of people who are able to provide for themselves.
May I also point out that if he had no dependents during the period of his detention, his sickness benefit would be accumulating?
Sections 218 to 249 inclusive agreed to.
SECTION 250.
Question proposed: "That Section 250 stand part of the Bill."
I wonder whether this section requires attention. Looking at the latter part of paragraph (c), it occurred to me that the word "or" needs to be inserted after the word "parole" and after the word "treatment".
As a layman I would say no, but we shall ask the draftsman.
It seems to me to make very good sense as it stands. Has Senator Ryan read it?
I think it is all right as it stands.
There are plenty of "or's" in it already.
Question put and agreed to.
Sections 251 to 255, inclusive, agreed to.
SECTION 256.
Question proposed: "That Section 256 stand part of the Bill."
It seems to me that there is something wrong in the drafting of this section.
What does the Senator feel is wrong about it?
It appears to me that what is really intended is that a patient in a mental institution shall not be compelled to attend any religious service which is not a service according to the rites of the religion to which he is ascertained to belong.
What improvement would that be in the Bill?
I think the word "contrary" is a bit strong there, and I would suggest that the section should run: "A patient in a mental institution shall not be compelled to attend any religious service other than a service of the religion to which he is ascertained to belong."
According to the present wording, you are dealing with something that is contrary to religion.
The intention of the section clearly is that advantage will not be taken of the mental state of a patient to make him attend a religious service that is contrary to the religious beliefs he held when he was in full possession of his mental faculties. It is just a nice point, and I am sure the lawyers could argue for a good while as to whether "other than" is better phrasing than "contrary to", but I rather think that the draftsman will be inclined to hold to his own phrasing. It seems to convey the meaning which is intended. To compel a man to attend a service that is contrary to the religious beliefs he held when he was in possession of his normal faculties seems to be somewhat different from compelling a man to attend a religious service other than a service of the religion which he held when admitted to the institution.
Does that not contemplate that a person might be compelled to attend a service which is not contrary to the religion to which he belongs but which might be different from the services which he had been in the habit of attending?
The section as it stands would mean that he should not be compelled to attend a service contrary to the religion to which he is ascertained to belong. Persons may have different religions, but they may hold a number of religious beliefs in common. The word "contrary" would imply that they held totally distinct and different beliefs on some of these matters. I take it that the intention of the Legislature is that a patient in a mental institution should not be compelled to attend any religious service other than the services of his own religion. That is why I would suggest that the section should be amended to read "shall not be compelled to attend any religious service other than the service of the religion to which he is ascertained to belong". I would suggest to the Parliamentary Secretary that he should consider the matter between now and the Report Stage.
I must say that, so long as you undertake not to compel a patient to attend any religious service that is contrary to the religion to which he is ascertained to belong, I think you are fairly safe.
Who is to determine whether the religious service is contrary to the religion to which he is ascertained to belong?
The responsible officers.
They are not theologians. For the purposes of administration I think it would be quite simple to work the section if it were drafted in the way I suggest. He who runs may read. Everybody knows where the service of a particular religion is held. To say that one religious service is contrary to another religion is, I think, not good phrasing. At all events, I make the suggestion and I think the Parliamentary draftsman may not be so obdurate, so hard-headed or as self-satisfied as the Parliamentary Secretary seems to think.
In the long run the interpretation of this section would be decided, not here but in the courts, because unfortunately this is one of the subjects that gives rise to very frequent and bitter litigation.
It has been there for 60 years and it never gave rise to litigation. It is not an innovation.
In regard to mental hospitals?
Of course the question has arisen many times in regard to children and minors.
It is not a new principle.
Is the word "contrary" a new word?
I do not think so. I would not give a definite assurance on that, but I do not think so. I have no objection at all to the Parliamentary draftsman examining the matter, and, if he thinks it could be more elegantly phrased or more clearly expressed, I am satisfied.
Does this mean that no provision will be made for any section of a particular faith?
I remember some years ago in Grangegorman Mental Asylum, in the case of a well-known or if you like notorious Labour leader, when an application came before the board for a chaplain of the particular faith, his comment was that if that particular patient wanted that particular kind of dope he was entitled to have it.
The practice has been to provide chaplains for different religions. We had some discussion upon that. We have many chaplains attached to most of our institutions— Catholic, Protestant, Presbyterian, Methodist, etc. All we are doing in this is trying to provide that while a person is mentally unbalanced he will not be compelled to attend a religious service contrary to his religion as ascertained. Some Senators are not satisfied that this brings out the intention sufficiently clearly. I will have the matter examined by the draftsman, and see what he thinks.
Question put and agreed to.
Sections 257 to 274, inclusive, put and agreed to.
SECTION 275.
Question proposed: "That Section 275 stand part of the Bill."
This is a short section, which provides that the President of the High Court in certain cases may appoint counsel to give assistance in a visit of investigation under the Act. There is nothing wrong with the section except in relation to the qualification of the barrister. The President of the High Court is authorised to appoint a barrister of not less than six years' standing. I do not know whether it matters or not, but I should rather be inclined to think that that word should be prefaced by "practising", so that it would read "a practising barrister of not less than six years' standing".
I do not know if there is any point in Senator Duffy's argument. All I can say is that this section is 103 years' old.
It is carried forward exactly as it was enacted in 1842.
On general principles, therefore, I am against it.
Perhaps we should amend it on general principles, but it seems to have served its purpose during that 103 years. We have not heard any objection to it or any suggestion that there is a flaw in it. It is quite possible that it is too old. Perhaps we should get something newer. If anybody can show me what is wrong with it we will try to inject some new blood into it.
All I am suggesting is that the gentleman should be practising his profession. I can well believe that 103 years ago there were very good reasons for leaving out the word "practising". I do not think those reasons would apply now.
Surely a judge would not appoint a non-practising barrister to appear in court?
During the 103 years I do not think he has done so.
I remember reading of an instance in this country where somebody took a case to the Supreme Court to have the verdict of the Quarter Sessions Court set aside on the grounds that the judge had not been a practising barrister.
We can review it in another 103 years.
Question put and agreed to.
Sections 276 to 279, inclusive, put and agreed to.
SECTION 280.
I move amendment No. 20:—
In page 103, to delete sub-section (2).
This section provides in the first part for the supremacy of this Act over any other statutory enactment in force at the time this becomes law. But in the second sub-section it goes much further. It provides that the Minister may, by Order, in respect of any statutory or other enactment, introduce such adaptations and modifications as he considers necessary or expedient. I will be told that this also is not new. I am not concerned with whether it is or not. I am considering it from the point of view of what is being done by this House. What we are doing is this: we are handing over to civil servants the power to make an Order declaring according to their judgment what any Act of Parliament passed by the Oireachtas may mean in certain circumstances. The Parliamentary Secretary will tell us that he depends upon the draftsman for the meaning of legal phrases.
Oh, no—not always. I would not let the Senator away with that.
We have been told that three times to-day.
Well, three times in 280 sections is not very often.
That is not so; there were other Ministers in this House this afternoon, and all of them made the same defence.
A Minister is doing pretty well in being responsible for what he says himself.
I hope I am not hurting the sensibilities of the Senator, but I should like to point out that it is officials who will make these regulations when this Bill becomes an Act. What is being done then by the Oireachtas is to hand over to civil servants the power to adapt or amend statute law in such manner as they think fit. This Bill has been under consideration, I gather, for a very long time.
At any rate, it has been under consideration for a long time. It was very extensively amended in going through the Oireachtas. It is a very large piece of draftsmanship, and I think it must be assumed that those in charge of it discovered any adaptations that are necessary. They discovered what Acts should be amended, and what Orders should be set aside, and I think it is unreasonable that this provision should be inserted here. I have no objection to the first sub-section, but I have a distinct objection to the provisions of the second sub-section, and I ask the House to delete it.
This is a usual section included in every, what I may call, comprehensive enactment, because there may be other enactments, of course, which are not directly repealed or directly mentioned in this Bill. This section gives the Minister power to adapt or modify those other Acts so as to make this Bill, when an Act, operative and effective, and the Minister can only make an Order within the powers given to him by the section. If he exceeds his power, then the court can set his Order aside. I think myself that we would leave this Bill incomplete and unfinished if this section were not in the Act when passed, and, therefore, I would suggest that Senator Duffy should be satisfied that it is a necessary section and that the only authority who can make the necessary Order is the Minister. The Senator should have at least a little faith in the Minister. Senator Duffy said that this Order will be made or drafted by civil servants. Well, they may be civil servants, but I am also certain that they are lawyers of long experience, and that, having had sufficient practice in making all these Orders in connection with similar sections, they can be relied upon to do the work exactly as required and nothing more.
I must confess that I disagree with Senator Ryan. I do not think that in the full form, as present in the sub-section, it is the usual kind of thing in such sections. The form is usually to give the Minister power to make statutory modifications for a limited period after the Act comes into force. So far as I am concerned, I would agree that the Minister should have that power for, say 12 months, or even a longer period, if he wants to ascertain the detailed working of the Act, but I do not think it is desirable that it should remain operative there for the Minister for all time. In that connection. I must confess that, much as I complain about the Department of Local Government and Public Health in other matters, so far as the legal end of their work is concerned they are the only Department making any effort to modify and codify our legislation, and to that extent I think we can give them more credit than any other Department.
I do not want to interfere with the legal profession, but I think it is quite normal for Senator Sweetman to disagree with Senator Ryan. It seems to me that if Senator Ryan said that to-day was Christmas Day, Senator Sweetman would feel bound to say that it was Easter Sunday. I do not agree with Senator Duffy, who complained that this was drafted entirely by civil servants.
Well, I understood him to say that. Surely, the Senator does not think that the Parliamentary Secretary and the Minister got down to the actual drafting of this Bill themselves? If so, I am quite sure that we would have the Senator complaining that the Parliamentary Secretary was neglecting his duty in the House, and doing nothing else but that kind of work.
Well, of course, that is an exaggeration. I complained that when this becomes law it will confer, not on the Minister—and not for the reason Senator Quirke gave—the power to adapt, alter and amend other statutes, but on civil servants, as it is they who will be administering the Act, and they may consider that a certain enactment, perhaps 103 years old, is the kind of thing that can be amended under the section, and we shall have no redress, as this House need not know. Who is going to invoke the court? Who will go to the expense of invoking the court in order to set aside some recommendation made in that way?
Perhaps the Senator will allow me to explain. When I saw this amendment on the Order Paper I came to the conclusion that when Senator Duffy came to the end of the long journey and reached Section 280 he was either tired, or took a final kick at the Bill—that he began to celebrate when he got to the end of the journey. That is the impression it conveyed to me. Now, what, in fact, does this action do that Senator Duffy is so much concerned about? Sub-section (2) is the one that gives him particular worry, and under sub-section (2)—
"the Minister may, by Order, make, in respect of any statutory or other enactment in force at the commencement of this section and relating to any matter or thing dealt with or affected by this Act, all such adaptations of and modifications in such enactment as appear to him to be necessary or expedient for carrying into effect the provisions of this Act."
We are empowering the Minister to bring this Act into effective operation, and we are empowering him to do nothing else and nothing more.
Surely the House, if it passes this Bill, intends that the Act should become operative, and fully operative. How can it become fully operative if the Minister is not empowered to make these adaptations? Now, Senator Duffy conjures up to himself, apparently, all kinds of modifications of existing enactments by the adaptation powers that the Minister is given in sub-section (2). Bear in mind, however, that these adaptations can only be made in so far as they are necessary for bringing the Act into effect, and bear in mind also that they are essential. I shall just give a few instances of why they are essential. We have changed the terminology. We talk in this Bill that, I hope, will shortly be enacted, about "chargeable patients" that were formerly "the insane poor", and in Acts that are not repealed they are still the "insane poor". We talked formerly about "lunatics". They are now "persons of unsound mind". We talk now of "district mental hospitals", but in certain statutes they are "lunatic asylums". The Minister must have power to make the necessary adaptations in order that the terminology we have incorporated in this Bill may become effective.
Surely, we should be able to do that within 12 months.
Why tie us down? We are confined in our activities regarding adaptations to making this Bill effective. We cannot go outside that. That is our limitation. If we wait for the next 40 years, we cannot do more than make this Bill effective when it becomes an Act.
It took more than 20 years to bring about the change in the term "lunatic asylum".
Amendment, by leave, withdrawn.
Sections 280 to 283, inclusive, put and agreed to.
First, Second, Third and Fourth Schedules to the Bill put and agreed to.
Title of the Bill agreed to.
An Leas-Chathaoirleach
Let us say the next sitting day of the Seanad.
An Leas-Chathaoirleach
Next Wednesday week, probably.
I should like it to be given to me to-morrow, but I suppose you cannot do that.
An Leas-Chathaoirleach
The next sitting day will probably be Wednesday week.
I think we should finish the Bill to-night, since there is very little more to be said on it.
Bill, as amended, passed through Committee.
Report Stage fixed for next sitting.
