Mental Health (Involuntary Procedures) (Amendment) Bill 2008: Committee Stage (Resumed)

Question again proposed: "That section 1 be deleted."

I welcome the Minister of State at the Department of Health and Children, Deputy Kathleen Lynch, and congratulate her on her appointment and wish her well for the future.


Hear, hear.

I move the amendment, as the sponsor of the Bill.

The Senator is opposing the section.

I will explain my opposition to section 1. The Bill was originally envisaged as dealing with two involuntary procedures in the area of mental health, one of which is known as psycho-surgery or, more popularly, lobotomy. This practice has not been carried out in Ireland for several decades and to give more focus to the Bill its sponsors have decided to concentrate on the aspects dealing with electroconvulsive therapy. For this reason, we argue that section 1 is no longer required and our debate should be concentrated on the remainder of the Bill.

I welcome the Minister of State, Deputy Kathleen Lynch. I am delighted for her and wish her well in her new position. I know she will work to the best of her ability. I have full confidence that she will give her best judgment as she goes along.

I am pleased to be discussing this Bill. It is important that state exactly what we are talking about. Senator Boyle's proposal, with which I agree, is to eliminate section 58 of the Mental Health Act 2001. I would like to be completely clear that this is what he is proposing.

It is not being deleted now, but yes.

The Senator is opposing the section.

If section 1 is deleted, the effect will be that section 58 of the Mental Health Act 2001 will be deleted.

Section 1 proposes to delete section 58 of the Act. That is what is being proposed. As there are some conflicting amendments, I want to be absolutely clear.

We have moved well beyond psycho-surgery, lobotomy and so on. There are many who are concerned about such procedures and this has a negative impact on the perception of mental health issues. We, therefore, need to be seen to take a clear and supportive line. I will be saying later on other sections of the Bill that people will be able to find various flaws and faults with the legislation, but no one can argue that what is contained in this legislation is not an advance on where we are. It may well be argued that there are other changes that should be made and that a major review should take place — I will support such a review — but these should happen after the Bill is passed.

The other House passed a motion this morning reinstating Bills that had fallen prior to the general election. If we pass this Bill today, it will form a basis on which to build change. The Bill can be changed completely when it goes to the Dáil and when it is brought back here and can be improved with additional bells and whistles. As of now, however, it represents a move forward and takes us from a place in which we do not want to be. Therefore, we should support it.

I agree with other speakers and will not repeat what they said. The Bill is important and I am glad it is being introduced by Senator Boyle. I congratulate the Minister of State on her appointment and welcome her to the House. I would like to hear her comments on the various issues raised. This is a particularly interesting Bill for the Seanad to deal with as it has received cross-party support. The Seanad is good at introducing such measures.

I personally believe electroconvulsive therapy is absolutely barbaric and that it is time we got rid of it completely. However, I accept the premise of the Bill, which is that at this stage we should abolish involuntary or forced administration of ECT specifically. This is a good Bill and I will join my colleague in opposing the section under discussion.

I have only just come back to the House, but I spoke on the previous Bill. It gives me great pleasure to welcome my old friend and colleague to the House as Minister of State. Long may she have the opportunity to come to this august Chamber.

This is an important Bill which was introduced by Senator Boyle and his former colleague Déirdre de Búrca. I have spoken with a number of people, several of whom I see in the House today, who take a particular view in this regard. There is a clear principle involved. The first question is that of the use of ECT on patients who do not give their consent. I feel passionately about this because I am old enough to have dealt with people within the gay community who were subjected to it.

On a point of order, I wish to explain my confusion at the start of the debate. The list we were given by the Seanad Office indicated that amendments Nos. 1 to 3, inclusive, would be discussed together.

We are discussing section 1.

I see. I understand this is the section which deals with lobotomy.

The proposal is that section 1 be deleted from the Bill. That is what is in front of me.

In that case, I will reserve my position until we get to that point. I thank the Cathaoirleach for his guidance, as there was some slight confusion.

Does anyone else wish to speak to section 1?

I am not clear. Are we discussing the issue of ECT?

We are discussing the deletion of section 1.

Is that the issue on which Senator Norris reserved his position?

I thank the Cathaoirleach.

The proposal is to delete section 1. The effect is to delete section 58 of the Mental Health Act 2001.

I thank Senators for their kind words. Like Senator Boyle, I was under the impression that we would be discussing amendments Nos. 1 to 3, inclusive, together.

We will come to them in section 2.

I am in favour of amendment No. 1.

What I am looking for is agreement to delete section 1 from the Bill.

Question put and agreed to.

Amendments Nos. 1 to 3, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 3, before section 2, to insert the following new section:

"2.—Section 59 of the Mental Health Act 2001 is amended in subsection (1)(b) by the deletion of “or unwilling”.”.

It gives me great pleasure to welcome the Minister of State, Deputy Kathleen Lynch, to the House; it is a great honour to do so. I wish her well in her tenure as Minister of State and I am sure she will do well in her brief.

I welcome the opportunity to contribute to the debate. Section 59(1)(b) of the Mental Health Act 2001 allows for the administering of ECT in cases in which a person is either unwilling or unable to consent. I am cognisant of the human rights issues involved. In preparing for this debate I referred to many submissions made in this regard. In addition, I must declare an interest in that I have a close relative who works in the psychiatric services and has done so for over 30 years.

The statement made by the College of Psychiatry in Ireland contains a strong proposal that rather than deleting section 59(1)(b), we amend it to delete the words “or unwilling” in order that the other aspects of the provision will be retained in the legislation. Section 59(1) states a detained person can be given ECT with his or her written consent, or, if the person is unable or unwilling to give consent, if his or her consultant psychiatrist jointly approves, with a second opinion from another psychiatrist, a programme of ECT.

There are many diverse views on ECT and it is possible to hear arguments on each side. In my professional career I have met people who have benefited greatly from it and, therefore, consider it to be a positive option in a very limited number of cases. It is important for me to say I have seen the outcomes. I understand there are situations where people do not have full information, a person is perceived to have received the treatment without consent, or a person is not able to consent. There are diverse opinions in this regard.

The College of Psychiatry in Ireland also recommends enhanced oversight of ECT by the Mental Health Commission. It is of benefit for bodies such as the Mental Health Commission to be involved in procedural issues.

I welcome the opportunity to consider the issue of psychiatric services and treatments. There is controversy over measures that seem to help in some ways but about which negative effects have been reported. I realise this is a difficult subject, but I am delighted to speak about it today.

ECT is very much the nub of the matter and there are differing views on it. The College of Psychiatry in Ireland has made its views plain. As a matter of principle, forced medical treatment must be approached very carefully. I know there are particular cases, for example children whose parents are members of certain religious groups that do not permit blood transfusions. In those circumstances it seems to me to be absolutely clear that the courts have a right to intervene, but we are not dealing with that here. We are dealing with a situation that can be put within the broad context of the medicalisation of mental illness. That is something I feel very strongly about, as I believe do some of the people here who support this legislation which was introduced by the Green Party with my support on behalf of the Independents. I believe we understand this situation.

I have received extensive briefing documents but I shall not read them all. However, I would like to summarise them. With regard to the question of forcing this upon unwilling patients, I believe this is a very dangerous thing to do. As I indicated, I am old enough to have dealt with people who were subjected to this treatment simply because of their sexual orientation, and it did enormous damage. I have had to cope with the wreckage of that system.

The previous amendment, about which there was some confusion, dealt with lobotomy in some way. That was a very dangerous thing and it showed the medical profession in a very poor light. Within my lifetime doctors were actually, in an uninformed way, removing sections of brain just to see what the result was. One of the classic cases of this was Rose Williams, the beloved sister of the playwright, Tennessee Williams. She was rendered into permanent infantilism by that operation. It was a tragic mistake that was consented to on her behalf by her parents because of an ignorant medical system in the United States at that point which thought that by brutal physical intervention, they could rectify the situation. Perhaps there would be a certain pacification, but they did not even address the real human problem underneath it. That is what is wrong, very often, with medicalisation. I have visited a facility in Cork and seen some of the results of this, and we need to be very careful when we introduce compulsory medication of any type, and certainly compulsory electroconvulsive therapy.

I was briefed at the introduction of the Bill by Senator Boyle and former Senator de Búrca by a man who has, sadly, since died, Dr. Michael Corry. He was passionate that this was wrong in virtually all circumstances. He produced a large body of evidence to this effect, which I read. I am not going to quote from it, as anybody who wants it can get it. To pass an electric shock through the brain tissue of a human being is a very blunt instrument, and no one actually knows how it works. They do not understand the neurochemistry or the neurophysics of it, nor can they guarantee it will be successful, and it damages memory, about which there is no doubt. It can have more serious complications, and no one who has witnessed it, as I have on video — never in person, I am glad to say — can have any view other than it has a very brutal impact on a human patient.

However, I have also been spoken to by people who have said, in effect that they did not want or welcome this, but it brought them out of a very dark place. These are the facts and I am sorry to disappoint any of those who have lobbied me, but I have to tell what I see as the truth. However, I understand that the situation can be addressed by reverting, simply, to common law. Two psychiatrists can decide that this treatment must be inflicted on a patient without his or her consent. They are protected in some reputational and legal sense from any recourse afterwards by the patient if the treatment is negative. My understanding is that this is already covered under common law. If this is the best practice or treatment, then that acts as a common law defence; therefore, what may be behind the briefings of my esteemed friends in the Royal College of Psychiatrists is protecting a patch. Perhaps I am wrong about this and in the event I apologise to them, as I do not mean to misconstrue the motivation. That seems to be the position, however, as borne out by quite a number of doctors who have said this to me. The chief psychiatrist responsible for mental health services in west Cork said that holding on to section 59(1)(b) was not really about medical practice, more about medical power. I do not believe that in 2011 this is, can or should be justifiable.

I am a layperson and if a doctor says this, I have to take that into the balance when I am speaking on this issue. Dr. Richard Lakeman of Dublin City University says: "Forcing or otherwise compelling people to receive an electric shock to the head is an anathema to the notion of personal recovery and an affront to all citizens who value personal autonomy and freedom." The last quote I shall give is from Dr. Agnes Higgins, partly for the sake of gender balance, because it is important we respect the different understandings that sometimes women may have, or even those of us who develop the feminine side of the brain, as I like to believe that I have. She says:

I am aware that people are making the argument that to remove 59(1)(b) is to leave some patients vulnerable if they require it as a last resort. This is not the case, as doctors can still give ECT and resort to ‘duty to care’ argument and common law.

Perhaps the Minister of State will be able to tell the House whether that is the case. I would be concerned if it was not, because people can be nasty. In fact, patients can be nasty. Not all patients are grateful.

I remember being profoundly shocked at hearing of a woman in Miami on a cruise who developed a sudden onset of appendicitis that was leading towards peritonitis, which could very easily have been fatal. The captain appealed for a doctor and one came and operated on her with a penknife. He saved her life and she successfully sued him because the scar reached above her bikini line. I believe it was an appalling affront to decency to sue the person who had saved her life, but it shows that it can be done. I have always believed in equal treatment in trying to reach a proper understanding of situations. I believe in equal and fair treatment for patients, but I also believe that doctors who act honourably and decently should be protected.

My understanding is that the removal of this section still leaves open the possibility in an extraordinary situation when, for example, a patient is refusing food, not communicating or refusing liquids. That is a threat to the patient's life and if in the opinion of the attending doctor there is a possibility that life may be saved by the administration of this very uncertain procedure, then, if it were someone we loved, would we not try every last resort? I believe that doctors are protected under law if they do this, but if my understanding is wrong, perhaps we shall have to look again. For that reason I strongly approve of the more radical approach to this situation.

I congratulate the Minister of State. I am very pleased to see she has finally achieved the office which she deserves.

I regret to have to rain on the parade of my liberal friends. To be in favour of ECT is like being for the devil or tsunamis, but nevertheless the truth is the truth. I was the first person to make a programme on mental health in Ireland that reached a mass audience and caused changes in public attitudes. To do that I was given resources by RTE which had never been given before. I did months of research and interviewed almost every psychiatrist in Ireland and Britain. I interviewed people such as Spike Milligan, particularly on the question of ECT.

Of three things I discovered, the first was that the politics of psychiatry is simply that, politics. There are a series of political fashions in psychiatry that come and go. Members will recall the notion a few years ago that we return all the mental patients to the community, with the result that people could be found urinating in the National Gallery downtown because there was no one to take them in. The notion of the hospital as a sanctuary was repudiated.

Second, I discovered that most of the notions held by the liberal left on the matter of psychiatry came from a film, "One Flew Over The Cuckoo's Nest", a real fantasy of the 1960s which seemed to believe there was no such objective condition as chemically caused mental illness. A political row has been going on ever since between the so-called medical and psychological models, whereas in fact so little is known about mental health that the best which may be done most of the time is to be empirical, to determine what works and what does not. In that regard it is quite ridiculous to say that the doctors do not really know how ECT works.

My point is that they do not have to and the empirical question is whether it works. It is all right if it works and saves people's lives and wait for the Garret FitzGerald theory to come later. Most of humanity's progress has been through trial and error.

The third thing I learned is that most of the people who believe ECT is bad news on all counts have never spent long periods in psychiatric hospitals. Nor have they suffered from serious endogenous depression, as I have. Anyone who has suffered from serious endogenous depression will be very glad to avail of ECT. The entire motor system shuts down. It was good enough for Dr. Anthony Clare and for many of the eminent psychiatrists in Britain and Ireland. If all else fails and they cannot reach patients whose lives are at stake, ECT has worked. Spike Milligan told me that he did not like it and that it damaged his memory but that if there was a trade-off between his memory and his life, he knew where he stood. ECT is not a lucid and clear theory. All we know is that it works on critical and far gone patients. We should not take that weapon out of the armoury or weaken its public standing. On cost benefit analysis for the patient, there are not many times when a patient's only resort and last call is ECT. It is a weapon in the armoury of science and medicine and it should not be laid down until a better weapon is produced.

I have read much of the literature on ECT and seen the arguments for and against it. I do not make a value judgment on ECT. I support this matter for another reason, which concerns rights and how we make decisions. The item of legislation we are proposing to remove protects doctors and ignores patients.

I do not oppose the points made by Senator Harris. ECT has worked for some people and not for others. In the same way as a tooth extraction or chemotherapy, people make decisions on all areas and that is the issue that concerns me. This is the classic example of protecting the profession and ignoring the receptor. I am a professional in a different profession. We should not allow this to become a debate for or against ECT. There is nothing in what we are discussing that comes to a value judgment on ECT. We are simply opposing the idea that it can be performed on patients unwilling to receive it. The arguments I am making are not perfect arguments. On balance, this is the best option available to me today. If I were sitting where the Minister of State is, I could come up with a more perfect solution.

There are no degrees of perfection.

This is true. Allow me to restate.

No interruptions, please.

It is a theological point.

While this is an imperfect argument that we are putting forward, I could come up with the perfect result. I will explain it shortly. We must deal with the issue raised by Senator Harris when we reach a situation that the best thing for a person is a particular treatment and the person does not want it. That happens every week in hospitals. A doctor might ask a patient to take a course of treatment but the patient may decide that, knowing the risks and making a judgment, he or she does not want the treatment. There may also be people who do not have the capacity to make that judgment. That is where the perfection and imperfection of the argument come together.

The current protection is that one can get a second opinion. We are all real people in this Chamber. I would love to know how many times a second opinion was refused. I might ask the Senator to sign a document and he will do so. That is the way it is done. I do not see it as any protection. One is asking a colleague to second-guess another colleague, with no great gain in doing so. I do not think that happens. Where is the weakness or imperfection in my argument and what is wrong with what is being proposed in this legislation? The real reason is that it does not deal with the point touched on by my previous colleagues, coming at this from different ways. A treatment may be the best for the patient but the patient may not want it or may not have the capacity to make a proper judgment. We have not dealt with this because we do not have legislation.

Senator Norris talked about the duty of care and common law, which applies to everyone in any profession. I used to have to explain to teachers that one was guilty of negligence through omission as well as commission. Doing the wrong thing or not doing the right thing is equally balanced in the law. Somebody can err in either direction. Senators on these benches have proposed the following matter a number of times over in the past 20 years. Issues concerning guardianship, mental capacity and how decisions can be taken by those not in a position to take a decision must be discussed. That is how we perfect the issue in order that we get away from the question of ECT. We should have a generalised view on how to deal with someone with a mental capacity issue and who is not in a position to make a decision. This does not only apply to ECT but to a variety of aspects of life. Governments are not keen to deal with this because it is awkward. Very conservative people, very liberal people and those of the laissez-faire view will come at it from every side on whether we should interfere. It is very difficult. A number of former colleagues dealt with this issue.

The duty of care and the common law was opened clearly on "Morning Ireland" by Mr. Hugh Kane, who was mentioned in some of our briefing documents. He has made it clear that our proposal does not rule out the use of ECT, which is important in respect of the point made by Senator Harris. If the duty of care overrides other issues or common law is the basis on which a decision is taken, it is arguable in court. However, it is not very attractive to professionals. Doctors prefer the existing legislation rather than what we propose. It leaves them swinging and they must make the arguments in favour of their professional decision. I would prefer the doctor who took a decision on the basis of common law or the duty of care to have to argue his or her position in defence of performing ECT in a court of law afterwards rather than the current situation where the patient does not have any right to argue for or against it. The patients must simply shuffle up and the procedure is carried out.

We should support the legislation before the House. At that point, the Bill will go to the other House and that is the opportunity for the Minister of State to polish the legislation. The arguments raised in this House can be dealt with. I support Senator Boyle's proposal because it is a clear and obvious improvement on the current situation although it is not a perfect solution. In that regard, we should support it and urge the Minister of State to take a wider review of mental health and capacity legislation and deal with the genuine arguments passionately put forward today.

I congratulate the Minister of State and wish her well. She is highly regarded in the area of mental health for her efforts. Speaking from my own professional and personal experience I have seen the benefits ECT has had on patients. It is important to stress that one is talking about a small number of patients and that the treatment is always used as a last resort. In such situations things are dark and bleak and the patient might not be in a position to give consent. I heard the points made by colleagues and listened with great interest to what Senator O'Toole said, that this should not be a debate about ECT, that it should be about whether someone who is unwilling to have ECT should have it. It is important that people who would benefit from ECT would not be prevented from having access to the treatment as it only ever used as an absolute last resort.

I have seen the situation at first hand. I have seen how people's lives were affected and the life that potentially lay ahead for them. I have also seen how people had an opportunity to enjoy life following treatment with ECT. Thankfully, it does not happen to many people but there is empirical evidence and clinical studies have been carried out to show that the treatment works. Senator Prendergast's amendment to delete the word "unwilling" is welcome. That will address the points made by Senator O'Toole. It is important when someone is unwilling to have ECT that his or her view is respected.

I was also struck by the comment Senator O'Toole made on second opinions. I am sure there was no intention to be disingenuous. Most people are professionals and I would hope that if someone were asked for a second opinion, his or her professional integrity would be such that he or she would give it without regard to the position taken by his or her colleague. While I cannot speak for psychiatrists, whenever I have been asked for a second opinion as a psychologist, I have always taken it seriously, regardless of who gave the first opinion, be it a colleague or someone working in another organisation. I have approached the issue with the utmost integrity and given my opinion independent of my colleague's opinion.

I welcome the press release and submissions made by the College of Psychiatry to the effect that its members would respect and support the decision of anyone who had the capacity to refuse the treatment. My concern is how we define and determine capacity. That area must be addressed as a matter of urgency. Apart from the arguments on ECT, mental capacity is an issue that has implications for basic decisions all of us take for granted, especially for those who suffer from mental health difficulties, adults with intellectual disability, adults with acquired brain injury and adults who acquire age related disorders. The issue affects people's human rights.

From the constant lobbying I was in a position to undertake in recent years, I am aware that a Mental Capacity and Guardianship Bill has been completed. It has required an enormous amount of work as it has had to link in with much existing legislation. While I support Senator Prendergast's amendment, it is of the utmost urgency that the legislation would be accompanied by the Mental Capacity and Guardianship Bill. I urge the Minister of State to take that into account.

I very much respect people's choice in these matters but it must be clear that it is their choice. I hope, if the Minister of State deals with the issue and brings the Bill to the other House, that the suggestions being made will be enacted. I hope she will take on board sufficient safeguards to ensure that ECT is clearly the choice of the patient and that he or she is in a fit state to make the choice, or if a relative or other person is making the decision that it is based on the previous known will of the patient.

ECT is interesting as a treatment in that it is not fully scientifically proven. It does have unusual effects from time to time. I wish to compare it to St. John's wort in particular. The Irish Medicines Board has examined St. John's wort, which is used for the treatment of mild depression; therefore, the matter is linked in a certain way. St. John's wort is banned on the basis that its efficacy is not completely proven, yet people all over the world use it regularly. It is possible to buy it in Northern Ireland for use in the State. It is also possible for certain practitioners to prescribe it, but it is not possible for people to buy it and use it by choice.

To return to Senator Harris's argument, he referred to Garret FitzGerald's great quote about something working in practice but asking whether it worked in theory. There is the famous argument that bumblebees should not be able to fly and that it is scientifically impossible for them to do so, yet the little blighters are flying around our heads all the time. It is important we would be consistent in the way we treat such issues. It is not acceptable that one treatment should be allowed because it suits certain vested interests but another treatment should not. Ultimately, it is about what is best for the patient. I accept that in certain cases if a patient wishes ECT to be used then it should be possible for that to happen. Likewise, the same should happen across the board. It is empirically proven that St. John's wort is of great benefit to many people who are depressed. It is a mild medicine derived from a plant one can grow in one's back garden. Certain people grow it and use the plant. It is not illegal. Certain Members who got elected to the other House have different plants growing in their back garden. This particular plant is not illegal for use but its sale is banned as a medicine in health food stores.

We should put the patient's welfare first. We should also take a consistent approach to treatments that could be of benefit to a patient if he or she wishes to use it and it is not proven to be harmful. I support the Bill in every way and commend Senator Boyle for bringing it forward.

I, too, welcome the Minister of State, Deputy Kathleen Lynch, and wish her well in her new role. As a new Minister of State at the beginning of a new term I am sure she will take on board what has been said and what must be addressed in this area. I am sure that with her enthusiasm she will deal with it.

In a sense one would want the wisdom of Solomon to deal with the issue. This is a particularly difficult issue when one is not medically qualified to make a decision about it. I was struck by many contributions but Senator Corrigan's in particular. She inquired whether people who would benefit from ECT would no longer be able to receive it. In the light of comments made by Senator Harris in particular, it would be wrong if the treatment were not made available. Despite what speakers have said about how wrong or inhuman the treatment might be, Senator Harris spoke powerfully about how it could help people. He states that if one is desperate, the negative aspects are worth it. A close relative suffers from depression, but nothing like the kind in question. It is an awful and absolutely wretched illness. There are times when it is very hard to reach a person suffering from depression as he or she may not be interested in treatment.

I, too, heard the guy on the radio some days ago. It appears that if these amendments are accepted, ECT will continue to be available. It should not be taken out of reach of people who would benefit from it, as Senator Corrigan stated. Will the Minister of State clarify this?

I congratulate the Minister of State, Deputy Kathleen Lynch. Her down-to-earth and practical approach is and will be very important in her most important ministry. It will be welcomed by all.

I compliment the Green Party, particularly Senator Boyle, on raising this issue because it needs to be discussed. We have had very valuable contributions from all contributors to the debate this evening. There has been much public debate on the administration of ECT. While some perceive ECT as a high risk, low benefit procedure, others regard it as effective and safe, and particularly useful in the treatment of severe, resistant depression.

Senators Bacik and Prendergast have suggested that the reference to "unwilling" in section 59(1) be deleted. While theirs is a good amendment and should certainly be supported, the problem relates to the definition of the word "unable". The concern is that those who are not in a position to give informed consent may be denied what could be life-saving treatment. This relates to the point made by Senators Harris, O'Malley and Corrigan. A balance must be struck although this will be difficult. Irrespective of what happens, there will be differences of opinion. I welcome the Minister of State's opinion on this subject and await her comments.

I welcome the Minister of State, Deputy Kathleen Lynch, to the House.

Certainly and perhaps fortunately, I am not an expert on this matter. I have listened with interest to my colleagues. This is a very difficult issue on which to make a firm adjudication. It is absolutely impossible for most laypersons to determine the appropriate route to travel in regard to these amendments.

When I first saw the amendments presented by Senators Bacik and Prendergast, I believed they struck a reasonable balance and would address the issue in a fair fashion. However, having read further correspondence from those lobbying for a fundamental change, and who are supportive of the Bill produced by Senator Boyle, I must ask the Minister of State to clarify the definitions of "unable" and "unwilling". I believed initially that deleting the word "unwilling" would solve most of the problem. Where does the word "unable" come into play? In what circumstances would medical personnel deem a patient unable to make an informed choice? From the layman's perspective, it seems easy to determine whether one is willing to accept treatment. A person who breaks his leg is either willing or unwilling to have a pin inserted, and a person with pneumonia is either willing or unwilling to receive certain types of medication. However, where people with mental or psychiatric difficulties are concerned, we must ask whether they are fit to determine whether they should avail of a certain treatment. Who declares whether one is willing or unwilling? If a patient refuses to accept ECT, can a consultant or other medical personnel state that patient is unable to make that decision?

From what Senator Harris and others have said, I understand there is a weighty body of evidence suggesting ECT may be very appropriate in certain circumstances and, most important, that it does work. I am certainly not in a position to dismiss that type of medical analysis. The other side of the argument points to damage done through the use of ECT. Medicine, be it general or psychiatric, has moved on tremendously in recent years. Although laypeople may have visions of a "One Flew Over the Cuckoo's Nest" approach to medicine and mental illness, I hope we have moved well beyond it.

In the Minister of State's response, to which I am sure we will be responding, will she try to draw a line in the sand regarding the definitions of "unable" and "unwilling"? This will allow me to think further about the amendments. The Bill represents our striving to find an appropriate solution, rather than an appropriate compromise. We are trying to produce the best possible legislation and the best possible treatment for people who suffer from mental illness. While drugs, counselling and therapy have improved dramatically, there could still be a requirement in some cases for ECT. We just need a proper framework for its provision. I am sorry for being so long-winded and for adding confusion to confusion. Will the Minister of State try to explain the core argument about the difference between "unwilling" and "unable"?

One must listen with the deepest respect to anybody of the eminence of Senator Harris, who can talk so movingly from direct experience of depression. I have never had depression, except in my old drinking days. It rarely lasted more than about 12 hours and I knew it would come to an end. Therefore, I cannot actually speak from experience. However, Senator Harris's experience does not provide a complete and adequate defence. He is a sufficiently chivalrous combatant to know that, and he is a contrarian. When he implies, "If it was good enough for Anthony Clare, it is good enough for me," the argument does not wash with me at all, because I am a grown-up. I do not accept at all the contention that adults like it. Professor Clare could have been right or wrong.

He was a psychiatrist.

That did not make him anything very special in my eyes.

I would rather have gone to him than to Senator Norris.

The Senator might have recovered much quicker had he——

We are on amendment No. 1 and must move on.

When Senator Harris says it does not really matter how ECT works, I, as somebody interested in the disciplines of science, feel it does. That is not an absolute, however, because I am well aware there are effective treatments whose manner of working is not fully understood.

If one is suffering and something works then one will do it and one would be mad not to, to be quite frank. However, our experience with things such as lobotomy are so grave that one must pause. Of course, one recognises Spike Milligan. As a professional name-dropper that was not the best name drop. Senator Harris is a wonderful man but one must do it with skill. Perhaps he could have said, "The third time I spoke to Spike Milligan" or "When he wrote to me congratulating me on the programme". If I might presume to give Senator Harris some advice as a professional name-dropper, I do not think he has quite arrived at the most professional degree of name-dropping but I am sure he will be able to perfect his skill.

We are discussing amendment No. 1 to section 2.

With regard to amendment No. 1, this situation affects not only Ireland. The position with regard to human rights and ECT has been confronted at the United Nations and the World Health Organization and both bodies have stated with regard to this specific treatment that it should be administrated only with the free and informed consent of the people concerned. I take these bodies seriously; I do not always agree with them but they have to be added into the balance.

The right of a patient who has the capacity to refuse ECT has to be protected unequivocally under section 29 and at present the Act is clearly in breach of this. We have a commitment on this and should support these important principles. It is very important that we live up to our international obligations. If we look at what we have done, we adopted most of the principles of the United Nations convention on the rights of persons with disabilities five years ago in December 2006. However, we have not ratified it and this concerns me. What we need is something that goes further than this and I ask the Minister of State to take this back to her colleagues in Cabinet. We need a comprehensive review of the entire Mental Health Act and its associated Acts in order that we can come up to the standards to which we have agreed in principle, such as the UN convention on the rights of persons with disabilities. We have a further way to travel with regard to this. The administration of drugs on a long-term basis to people on an involuntary basis for a period in excess of three months is a direct analogy to the section we are examining and this also needs to be explored. We need to ventilate these issues.

On a very serious note — because there was a certain banter and I know Senator Harris and I both enjoy this type of thing — there is a stigma about mental illness which is completely inappropriate. Jonathan Swift was one of the first people in Europe to point out that mental illness was just that; it is not possession by devils, madness, badness, lunacy, imbecility or whatever else, it is an illness. Nobody apologises for having arthritis; why should anybody apologise for having depression? They should express it, understand it and seek assistance. One would hope that as a community we would be prepared to give that assistance.

With the greatest respect to Senator Corrigan, we should examine and find out on approximately how many occasions when second opinions are called for is the second opinion substantially different from the first and what are the reasons for this. This would be helpful because perhaps it would set people's minds at ease. Perhaps someone could do an academic study on this.

Not surprisingly, Senator O'Toole referred to the need for real capacity legislation. This is a new Government with a new programme for Government. So often when in opposition, Members of the Labour Party and Fine Gael were passionate on behalf of rights-based legislation and capacity legislation. Now we are calling in the cards and asking to see the value of their money and whether they are really committed to this. Will they act consistently on principle? We know they are now in a practical world and that can be terribly difficult and there are constraints but I appeal to them in as far as possible to examine first of all ratifying the convention I specified and, second, examining the publication of even a draft capacity Bill. This would be extremely valuable.

I have just realised that three years ago in 2008 I was the third man to put my name to the Bill. Perhaps I should have said "third person" but I said "third man" because I like the film and its music. I am very proud, pleased and honoured that my colleagues in the Green Party allowed me to put my name to the Bill. The only thing I regret is that it is not tabled on the Order Paper for all Stages. That would have been helpful. Perhaps the acting leader can see whether it is possible.

I would like to ask him whether it can be put through all Stages.

If so, perhaps we will get an indication that this can be done and then it will be left to the Dáil to decide whether it will progress it further. I hope it does so.

In tabling the amendment, we agree that when a patient who is competent to consent refuses consent that refusal should be accepted.

There is no question about that and an issue is not raised. However, and this might address the concerns expressed, where a patient is genuinely unable to consent there is no reason for an absolute legal rule prohibiting any one form of medical treatment. Someone else must make a competent decision on behalf of a person or patient who is unable to consent. This is where Senator Boyle's Bill goes too far. Our amendment, which would replace the existing section 2, strikes the right balance. The Bill, as proposed to be amended, would leave in place the power of a competent person to consent to ECT thereby recognising its potential use as a practice in psychiatry but would preclude any person receiving it who was unable to consent. This is logical and the amendment avoids this anomaly.

I am afraid it does not do so.

I believe it does.

I will argue against it.

No interruptions, please.

With regard to a second signatory or where a second opinion is sought, it is never only two psychiatrists and a person in need of the procedure involved; it always involves a multidisciplinary team and involves discussion with the family, occupational therapists, general practitioners, public health nurses, psychiatric nurses and community psychiatric nurses. It does not involve just one person.

That is not correct.

It is in the most part and I speak with some degree of authority. I agree with Senator Corrigan that if a second opinion is sought, particularly with regard to something as important as ECT, that second opinion is a genuine second opinion and is not a signature or a rubber stamp that one psychiatrist concurs with the opinion of another. This does not happen. The person is genuinely assessed.

We will have an opportunity to introduce capacity legislation in the future and it will be necessary. We are very genuine and we will continue to be passionate in speaking for people who cannot best speak for themselves and for the advocacy groups which have the welfare of every person at heart. It is also in our best interests to ensure they are best served by any legislation. Legislation should not be prohibitive, it should be at the core of giving the very best service and treatment available. We speak about cloud computing and advances in science, medical science, psychiatry and forensic science. All of these are rapidly expanding and we must keep an open mind. There is also the placebo effect whereby something cannot be explained and we have only empirical evidence that shows us this is what works or appears to work for people.

In 2009, 90% of patients who received ECT were voluntary and consenting. A total of 35 patients who were assessed by psychiatrists as requiring ECT were considered to lack capacity or were unable to give consent and were treated under section 59(1)(b) but only with the agreement of both psychiatrists. As I stated, both psychiatrists would have assessed the patients. Irish research has shown that 93% of those people benefited and for a number of people the treatment was life-saving. This is a very emotive and contentious issue. The spirit of this legislation is meant to enhance and be of benefit to those people who require ECT. I thank the Minister of State for her attention.

I wish to add to my earlier contribution. With all due respect to Senator Prendergast, whom I know is very committed, she undermined her own argument. It may well be the case that relatives and other people should be consulted but in her contribution she made it quite clear that she was only referring to two consultants. In 2007, my former colleague, Dr. Mary Henry, and I brought forward legislation entitled, the Mental Capacity and Guardianship Bill. I refer to section 4:

(a) no intervention is to take place unless it is necessary having regard to the needs and individual circumstances of the person including whether the person is likely to increase or regain capacity;

(b) any intervention must be the method of achieving the purpose of the intervention which is least restrictive of the person’s freedom;

In reference to a person who does not have the capacity, the section states:

(c) account must be taken of the person’s past and present wishes where they are ascertainable;

If it were the case that what Senator Prendergast said at the beginning of her contribution was correct I would have a slightly different view. The section further states:

(d) account must be taken of the views of the person’s relatives, primary carer, the person with whom he or she resides, any person named as someone who should be consulted [such as consultants]and any other person with an interest in the welfare of the person or the proposed decision where these views have been made known to the person responsible;

(e) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy

Those are the sections of the legislation that deal with the points that I believe Senator Prendergast also wishes to deal with but this is not in the legislation before us. There is no requirement to consult any of those people. I want such a requirement and I am supporting the legislation from the Green Party on the basis that it is the best available. I said at the beginning it is not perfect but it could be made perfect by dealing with capacity and guardianship along the lines I have just outlined and there is a lot more in the legislation introduced by former Senator Mary Henry and me at that time in order to deal properly and in a balanced way with these issues. Governments do not want to know. I appeal to the Minister of State that support for this legislation is only a first step. I would like to see the 2005 review which was referred to by Senator Norris and to deal with the issue of capacity which protects everybody, the consultant, the patient, the family, the friends. It is multidisciplinary in that regard. This is what is required of the capacity and guardianship elements and they are not in the Bill as it stands.

The current choice is just two consultants who can ride roughshod — I do not say they would do so but that is the way the legislation is written — over the views of the person. Consultants tell people everyday that smoking is bad for their health and they should not smoke but people continue smoking and with the full capacity to do so. There is a lot to be said for saying we should not allow them to do so but I am not suggesting this argument for a moment. My point is that the current legislation is flawed and the legislation being proposed is not perfect but it is better. In that regard I appeal to Members to support it. I appeal to the Minister of State to take it that step further. Every one of the issues raised by Senators Corrigan, Prendergast, Harris and Bradford can be dealt with by a combination of a review and mental capacity and guardianship legislation.

I thank all Members for their good wishes and for welcoming me to the Seanad. I am not certain it is the way I would have chosen for my first visit but one must deal with the hand one has been dealt, as with everything in life. I appreciate the words of welcome. I hope that when I have finished saying the little I have to say we will realise we are not that far apart in what we all want. I hope we can come to an accommodation because the new Government intends to deal with all the issues referred to in this debate. The programme for Government as published deals with every issue raised today. I hope we can reach an arrangement whereby I can have a little more time to deal comprehensively with the issues which need to be dealt with.

In reply to Senator Norris's contribution, of a total of 44 patients sent for a second opinion, two psychiatrists disagreed with the referring consultant's opinion. It should be noted that very decent and honourable people work in the field of mental health. Because we know so little about it ourselves and because we have such a fear of becoming mentally unwell we are mistrustful and unsure of that area. This is our failing as opposed to theirs.

I have listened with much interest to the points raised in this debate and I have to admit that I have some reservations about the administration of electroconvulsive therapy, particularly in the absence of patient consent. My officials inform me that ECT is a recognised treatment for severe mental illness and is sometimes used to treat persons with severe depression who do not respond to drug treatment. In reply to Senator Bradford, I refer to people who do not interact with others, who neither sleep nor eat nor make eye contact and who are virtually catatonic, who are what the profession means by being "unable". However, I am also aware that ECT has many critics from within and without the medical profession and there is some evidence to suggest that memory loss can be a side effect. One does not need to be told by the medical profession to know there is a difference of opinion. The views expressed today show the range of opinion, from the extreme to the accepting to the in-between and this is the difficulty posed by this issue.

It is obvious that ECT is a controversial treatment and I will need some time to fully understand both sides of this very emotive debate. I want to examine the reputed benefits and reputed limitations of the treatment before I make any legislative changes. I also need time to consider if it would be feasible to simply delete the provisions relating to ECT in the Mental Health Act 2001 and allow common law to prevail. I ask the House to give me that time. My difficulty and concern is that doctors might choose not to provide the treatment under common law because they could fear being sued. If one is concerned about the medical profession protecting itself then this is an issue to be considered and about which one must take a sensible view.

I wish to make it clear that the legislation will be changed. The Government for national recovery is committed to a review of the 2001 Act which will be informed by human rights standards. In that regard I can assure all present that the promotion of the human rights of service-users will be the principle underpinning any and all mental health legislative developments in the future. For my part I believe that a patient should have the right to refuse ECT. Our laws should not allow two consultant psychiatrists to override the expressed wishes of a patient and force an unwilling person to undergo this treatment. I accept that the clinicians have the patient's best interests at heart and may consider the treatment to be life-saving. We all know of such cases. However, if a patient who has the necessary capacity to make the decision, has been given all the information about the procedure and opts to refuse treatment, it is incumbent on us to ensure that this decision is respected. I therefore readily accept that the word "unwilling" should be deleted from section 59 (1)(b) of the Mental Health Act 2001 and in that regard I am happy to support the amendment proposed by Senators Prendergast and Bacik. In the context of the administration of medicine, I am of the view that the word “unwilling” should also be deleted from section 60(b). However, I am conscious that there are patients who lack capacity and are not in position to make such an informed decision. I agree with the point about the lack of capacity legislation, which is not just about people with mental illness. It is about the elderly, people with intellectual disability and those who might not be fully informed about what the issues are. Only today I was discussing introducing capacity legislation with officials. While it is only a personal opinion that I have had for a number of years, I believe it should not be mental capacity but legal capacity and we should start to change our use of language.

I note from the activity report published by the Mental Health Commission last month that in 2009 some 35 programmes of ECT were administered to patients who were deemed by consultant psychiatrists to be unable to consent to the treatment. Should such patients have been denied treatment on the basis that they were not able to give their consent? I believe Senator Harris's contribution in this regard was well worth listening to. I also note from the report that in total, 373 programmes of ECT were administered in 2009 and in almost 88% of cases the ECT was terminated when improvement was indicated. Should patients who are unable to consent be denied that prospect of improvement?

I confess I do not have the answers to my questions and I need time to explore the issue. I do not want to rush to judgment on this; I want and need to look at the evidence base, listen to stakeholders and consult with my officials. It is important that we are now having a free and open debate in 2011 about the stakeholders. A number of years ago we would not have talked to stakeholders but would have talked to members of the profession. There are others who need to be consulted.

In the coming weeks and months, I will meet relevant people and groups who, I hope, will give me a better and fuller understanding of my brief. In this regard I will meet service user representatives. We are fortunate to have a highly developed service user movement in mental health. I will meet representatives of the National Service User Executive and listen carefully to what they have to say on ECT. I will also, of course, meet representatives of the College of Psychiatry of Ireland. I will ask the college to reassure me about the efficacy and safety of ECT, and provide the evidence to convince me that ECT should continue to have a place in a modern psychiatric service.

I am aware that the previous Administration had proposed legislative changes and that heads of a mental health Bill were at an advanced stage of preparation. While I will of course examine those proposals, I will make up my own mind on this issue. I am not simply a Minister of State who will carry on the baton. I will assess the situation for myself and ensure that we are heading in the right direction where human rights are paramount before I make my own proposals for legislative change.

As I am sure Senators are aware, the Government is committed to the introduction of a new mental capacity Bill. This new legislation will offer the possibility of assisted or substitute decision making, which may help solve the dilemma on the administration of ECT to persons who lack capacity. I will give this matter much consideration. I have a personal opinion and will be informed by people who consider themselves to be greater experts than I am. There are very few people who lack capacity if the right supports are put in place. If one takes on board how people behaved in the past, what their environment was and how they communicate, I believe there are very few people who lack capacity and with the right supports we can give them that capacity.

I thank the House for raising this important issue. In particular I thank Senator Boyle of the Green Party. It is a vital issue that needed to be ventilated. I am not certain that I appreciate it being done in the first week after my appointment as Minister of State, but these are the things that happen. I have listened closely to the comments made here this afternoon and have taken note of the very genuine concerns expressed which I believe are motivated by the desire to do right by those with mental illness. I also share Senators' concerns for people with mental illness and their comments will go a long way towards helping me understand the issues and will undoubtedly inform my deliberations.

I am sorry that I cannot be more definitive on the proposed Bill at this stage. While I can assure the House that legislative changes will be made, I cannot give any guarantees as to the extent of those changes. I want to do what is right and what is best for our vulnerable patients because they deserve no less. I will not rush to judgment, but will instead take a measured and informed approach. Any decision I make will be evidence-based and taken against the backdrop of the need to protect human rights. In this context I ask the Senators for their support. I hope that between us and with people who have a genuine interest and who speak for those who have no voice, we can come up with a body of legislation that will ensure that the nightmare scenes we saw before will not be repeated.

I thank all the Members for their detailed contributions. This is not a Bill about prohibiting ECT, which will continue in existence regardless of what the House decides today. In making any decision this House will be keeping a particular aspect of the debate alive as it relates to the involuntary use of the treatment for people who have not given informed consent. That will only mark the halfway stage in a constitutional process that needs to be visited in the other House. We are asking the House for a statement of concern on the need to address the issue. The Minister of State has given her response. In my original contribution, I forgot to welcome her as I had already done so in a personal sense. We have soldiered long and hard together in the past 20 years. I know the disagreement we may be having — narrow as it is — is based on her now being in government and me not.

Even though the Minister of State is only a week in office, her response is a standard Government response — the Government always seeks the right to move legislation.

As the Senator well knows.

I have seen it in practice and do not believe it works in theory. As one of the last acts of the 23rd Seanad, we have the opportunity to make a clear statement that the other House needs to address a particular aspect of mental health reform, which is the only effect of passing this legislation. Nothing will change about the use of ECT or even its involuntary use, but importantly the debate will be progressed. I believe the Minister of State mentioned 383 treatments — I had understood the figure to be 588. However, that related to 43 people.

The amendment proposed by Senators Prendergast and Bacik will be ineffective because it will change nothing. The distinction between "unable" and "unwilling" is just as loose as the ability of two consultants to sign forms because the ability to be considered unable rather than unwilling can be brought about through pharmaceutical circumstances. While we need to address the issue in a more comprehensive way, in the first instance we also need to say there are human rights issues regarding people who are given this treatment without their consent. Of the 43 people affected in 2009, some 80% were already listed as unable through the Mental Health Commission. However, the outgoing chief executive of the Mental Health Commission has said this is appropriate and should help to advance and inform the wider legislative change we need to make in this area. When the people who are responsible for mental health policy and its implementation, and the collation of data in that regard, are saying this Bill is the way forward, I ask Members to agree with that way of thinking.

Senator Harris made a very moving contribution and if the debate was about the prohibition of ECT, I would disagree with him on many matters. I particularly liked his use of the oversimplification of the film "One Flew Over the Cuckoo's Nest", which I found especially ironic given that the person who wrote the book on which the film is based was well known for having his cerebral make up affected by the constant use of LSD. He was hardly summoned to inform this debate. I have informed myself, as have those involved in sponsoring this Bill, including my former colleague Déirdre de Búrca who is also a psychologist. The essence of this debate is that professionals differ greatly on the effectiveness and efficacy of the treatment. Senator Harris mentioned Dr. Anthony Clare, who was well respected——

As the business of the House was ordered to conclude at 6.30 p.m. I ask the Senator to report progress.

The debate started ten minutes late. Can I ask that it be extended for 15 minutes?

No. My hands are tied. The time for the conclusion of the debate is 6.30 p.m.

Can I move that the debate be extended by 15 minutes and explain why?

No. The debate must conclude at 6.30 p.m.

Our substantive debate is on amendments Nos. 1, 2 and 3. There is a fourth amendment that as a sponsor of the Bill I am not going to oppose. Everyone has spoken at great length today. I have had an opportunity, as the person who moved the Bill, to speak. I am asking that the House sit for an extra 15 minutes to allow this to happen.

The business is ordered and agreed to conclude at 6.30 p.m. I ask the Senator in possession to report progress on the Bill.

Can I ask that the debate be adjourned until tomorrow?

I have no control over what business is ordered for another day. I will ask the Leader to state when the House will sit again. That is all I can do

Can I table a motion that extra time be given and that Members be given the right to consider it?

No. My hands are tied with a 6.30 p.m. conclusion. That is what was ordered and agreed today.

I will report progress and ask that the debate resume tomorrow.

Progress reported; Committee to sit again.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 6.35 p.m. until 10.30 a.m. on Thursday, 24 March 2011.