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

NEW SECTION
Debate resumed on 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”.”.
—(Senator Phil Prendergast).

Amendments Nos. 1 to 3, inclusive, are related and being discussed together.

I wish to finish my brief comments before we make decisions on the amendments being discussed. The effect of the Bill is not to change the use of electroconvulsive therapy or even the law as it results in involuntary treatment but to pass a Bill in this House that needs further consideration in the other House. Reconsideration will also give the Minister of State time to come up with adequate legislative measures either by following this Bill through should the House approve it or by introducing a new mental health Bill. I hope the decisions today, with the debates that have preceded it, will help to inform the Minister of State in that process.

I welcome the Bill and I am very glad it has been given extra time today. I pay tribute to Senator Boyle and former Senator Déirdre de Búrca who were both responsible for promoting the Bill. I also pay tribute to the campaigners who have highlighted the abuse of human rights as a result of the existing wording of section 59 of the 2001 Act. We are all on the same side and I am delighted the Minister of State has committed to changing the wording. We are all agreed that section 59 denies the right of a competent patient to refuse ECT and we all want to change that position. I am grateful to Amnesty International for its briefings, proposing that this needed to be changed and expressing the view that a comprehensive package of reforms needed to be introduced. The Bill represents an opportunity for the Minister of State and the other House to consider what needs to be done to provide for proper safeguards in the administration of ECT in the very rare and exceptional cases in which it continues to be performed. I believe most such occasions take place on a voluntary basis.

I welcome the Minister of State and express my delight that she has been appointed to her role, in which she will be excellent.

We are all keen to ensure anyone who is able to refuse consent is not denied his or her right of refusal. It is a critical point which is addressed in the amendment. The deletion of the words "or unwilling" from section 59(1)(b) of the Mental Health Act 2001 is critical and will ensure competent patients will have the right to refuse ECT, as they should be able to do under international human rights law and the Constitution. However, their mere deletion is not enough. As Senator Boyle acknowledged, the provisions of the Bill are not enough to ensure adequate safeguards for mental health patients. The other human rights concerns raised by organisations such as Amnesty International about section 60 of the Act, the need for comprehensive capacity legislation, the right of appeal and the provision of a ban on the administration of ECT in the case of minors all need to be dealt with in more comprehensive legislation aimed at protecting the rights of patients and ensuring we will be in compliance with international standards and best practice.

All of these issues have to inform the debate. We are all trying to strike a better balance than that struck in the 2001 Act and all accept that there are flaws in the Bill we are debating. The best we can do today is to accept the amendment. Senator Boyle accepts that the wording of amendment No. 2 is flawed, but I am happy to accept amendment No. 3 and withdraw my opposition to section 2. I understand he is happy to accept amendment No. 4. In a spirit of co-operation, therefore, we can proceed to accept the Bill and I am very happy to support it. We all want to see more comprehensive legislation put in place to protect the human rights of psychiatric patients.

I thank all those who contributed to the debate. When I watched it again last night, I must admit it was most comprehensive, one which could not possibly have taken place with the same fluidity in the other Chamber. There is a different structure in this House and a great deal more freedom which allows different opinions to be expressed, sometimes in a very calm manner and at other times with great passion. It is the type of debate we should have at all times.

As I said previously, we are all agreed that we should act in the best interests of the patient. There are times, however, when a person will not agree that he or she is a patient. This debate has informed me a great deal and we need to have more debates on the issue which is not black and white. There are definite views on either side which are passionately held, but each side is acting in the interests of the patient.

I am glad that we have come to an arrangement and I hope that when the Government produces additional legislation, this issue will form a major part of it. The views expressed will be taken into account and we will produce a Bill which will be rights-based and driven very much by our human rights obligations in regard to mental health issues. As I said yesterday, I still maintain there is very little between us on the subject.

Amendment put and declared carried.
SECTION 2
Amendment No. 2 not moved.

I move amendment No. 3:

In page 3, lines 12 to 21, to delete all words from and including "and" in line 12 down to and including "rules" in line 21.

Amendment put and declared carried.
Section 2, as amended, agreed to.
NEW SECTION

I move amendment No. 4:

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

"3.—(1) This Act may be cited as the Mental Health (Amendment) Act 2011.

(2) This Act shall be included in the citation "the Mental Health Acts 2001 to 2011", and this Act and those Acts shall be read together as one.".

I understand Senator Boyle accepts this procedural amendment to the Short Title of the Bill. It is to correct it and there is no difficulty with it.

I am happy to do so.

We are opposed to section 3. I apologise, but the wording is not correct. The amendment is uncontroversial as it refers to the Title of the Bill.

Is it agreed that amendment No. 4 will replace section 3?

Please excuse my lack of knowledge, but I want to ensure that we will not be trying to repair problems next week. Amendment No. 4 reads: "In page 3, before section 3, to insert the following new section". It will not replace section 3.

I ask Senator Bacik to explain her amendment. Will it replace section 3?

It should have been stated it would replace section 3 with a new section providing for a different Title. The explanation that should be offered to the House is that the words "involuntary procedures" in the current Title of the Bill do not actually appear in the Bill. It is more correct that it simply be referred to as the Mental Health (Amendment) Bill, as part of the series of mental health Bills. Therefore, there would be a collective citation as well. We have included the more correct citation of the Bill. I think Senator Boyle accepts the different wording of the Title.

I am happy with it.

It makes no difference whatsoever to the substance of the Bill. It simply refers to it as being part of the series of mental health legislation and it is a more correct Title.

The House agrees that amendment No. 4 involves the deletion of the existing section 3 of the Bill.

That is agreed.

Amendment agreed to.
Section 3 deleted.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

As the mover of the Bill I thank the House and Members for their co-operation. As this is probably our last business in the Seanad before the election, it is important that we have passed a Private Members' Bill and the House has been seen to act independently because questions about the future of the House will form the debate that centres around it. I am especially pleased that the House has co-operated on this important area on which their is valid public concern. It is the second such Private Members' Bill that I have had the opportunity of having passed in the House and I take some pride in that. There have been three such Bills in this Seanad. When measured against the normal parliamentary output of any chamber in any developed democracy that is something in which we can take collective pride. As we move forward in the future I thank those who have contributed not only to this Bill but to the life of the Seanad, the staff, the Cathaoirleach, representatives of the Government and successive Governments in this House. I hope when a Seanad reconvenes it will take value from the experience of not only this Seanad but the previous 22.

I welcome the passage of this Bill which is important legislation. I commend Senator Boyle and former Senator Déirdre de Búrca for promoting it. Like Senator Boyle I have two Private Members' Bills before the House, one on FGM and the other on climate change. I very much hope that versions of those Bills will be passed by the Government. It is a strength of the Seanad that we have the capacity to debate and pass this type of legislation in an environment that is conducive to the type of co-operation we have seen today where we have all agreed on the need to pass the legislation in a conciliatory and co-operative way. I thank the Minister of State and her staff for their work on this Bill. I thank also the staff of the Seanad and you, a Chathaoirligh, for your courtesy in dealing with us on the Bill.

I take the opportunity to welcome the Minister of State and wish her well. The Bill is a very significant achievement for the Green Party. The Green Party, particularly Senator Boyle and the former Senator de Búrca, deserve commendation for bringing this issue to the fore, and the Labour Party for its amendment. I listened carefully to the debate and contributed on a previous occasion when the matter came before the House. This is a difficult issue to get right. There are intersecting issues of human dignity, patient autonomy and the whole question of the duty of care of medical professionals and what precise protections they enjoy as they seek to exercise their duty of care. Progress has been made with the amendment that has been accepted by the Green Party. It is an issue on which I hope there will be further debate in the other House. It is an important issue. There are people who are personally concerned by the issues we have discussed. There has been goodwill on both sides of the various arguments made. People are united around the desire to do the right thing by vulnerable people. Certainly progress has been made in the acceptance of the principle that people cannot be treated against their express wishes. There are other issues that remain for further careful consideration. I heard the Minister of State make similar comments to those made by her predecessor, the then Minister of State, John Moloney, that we have to look carefully at this issue as it is not an easy one to get right. As long as there is goodwill and a genuine desire on the part of Government to do right by the people involved, I hope we will arrive at solutions that honour human dignity while allowing medical professionals to do the work they have to do.

I pay tribute to all who contributed to the Bill. The debate reflected the strong cross-party dimension that has always been evident in this Chamber on issues such as mental health, disabilities or child protection. Given that mental health and disabilities do not get much of the spotlight, it is fitting that the last piece of business in this Seanad was on mental health. I thank the Minister of State and her staff and all the staff of the Chamber.

An essential plank to what we are all trying to achieve when it comes to very vulnerable people is the bringing forward of mental capacity legislation. Significant work has been done in that area in recent years and I ask the Minister of State to make it a priority. I welcome her comments last night on that issue.

I congratulate Senator Boyle on having this legislation passed by the Seanad. It now goes to the other House and, I hope, during the course of the next few months the Minister of State and her colleagues in government will reflect deeply on this legislation. We send forth to the other House a strong message as to how the legislation should proceed and the strong view that it is not only appropriate but humane, balanced and fair. It was interesting to listen to the Minister of State yesterday when she spoke about the possible introduction, hopefully in the near future, of mental capacity legislation. That whole area will be of significant importance in the life of the next Government. This is a mental health Bill. It is interesting that Deputy Lynch is the Minister of State with responsibility in this area because when she gets up every morning in city of Cork and looks across the brow of the hill she can see the old Cork mental hospital.

During the preliminary debate yesterday I spoke about the film "One Flew Over the Cuckoo's Nest". In the city and county of Cork when people think of mental health they think of St. Anne's and Our Lady's hospitals. We want the future of mental health care to be a million miles removed from that sad era of a different type of care and analysis of mental health and mental capacity. I hope this legislation is part of the changing trends and attitudes. I strongly commend Senator Boyle for bringing the legislation before the House. In the long-standing tradition of the Seanad it has been debated in a balanced, fair and political — with a small "p" — way. I wish the Minister of State well as she reflects on the legislation and presumably brings forward important mental health legislation during the lifetime of the new Government. I congratulate Senator Boyle on having the Bill passed.

There is nothing better than the threat of abolition to focus minds. That applies very much to the Seanad and the Green Party. It is appropriate that probably the last legislation to go through the House is Green Party legislation. I commend Senator Boyle on his huge contribution as Deputy Leader to the House and bringing the Bill forward. There are many others I wish to congratulate. Senator Cassidy who is sitting beside Senator Boyle made a great contribution as did those on the other side. I very much welcome the comments of the Minister of State in respect of this House but particularly her approach to rights-based legislation and always putting the patient first. If that is the approach the Minister of State is going to take we are in safe hands. Politics much change. We have to put aside the adversarial approach. We have a very strong Government in place. It is a time for the country to heal itself and work together for the betterment of the people. If the Minister of State's approach, a rights-based and a people focused approach, is the approach of the Government it will be a very successful time for this country.

I also thank everybody else who contributed to the considerable success of my time here in the Seanad. If this is the Cathaoirleach's last day sitting in the Chair, praise has been heaped upon him and it is well deserved. It can be looked upon as a great time in the history of this country and I hope it is looked upon as a time of new beginning, not of abolition.

I congratulate the Green Party and Senator Boyle, with whom I worked so well in the past four years as Deputy Leader for bringing this Private Members' Bill before the House and acknowledge the responsible way in which the Fine Gael Party, the Labour Party, the Independents and Fianna Fáil have worked in unison to do the right thing on this legislation. I do not want the new Minister of State, Deputy Kathleen Lynch, to believe that this will always be the case when she comes back to the House in the 24th Seanad, but it is something on which everyone feels they are making an immense contribution to help those who cannot help themselves. It typifies what the Seanad is about, what it can do and the changes it can commence.

I wish all colleagues who are standing for the election well. I thank all those who are not standing for re-election. Some colleagues have been here a long time. Senator Ellis has spent 33 years in the Oireachtas, while Senator O'Brien has spent almost 22 years here. These are considerable lengths of time, the prime of careers of individuals who have made an immense contribution to the democratic system, the community and the public service in general. I acknowledge and respect that.

I wish the Cathaoirleach well. He has been impartial and we have worked with him for the past 14 years. The Seanad has been enhanced by his membership and stewardship and I join everyone here today in acknowledging that.

I thank the efficient staff, from Ms Deirdre Lane, Clerk of the Seanad, to Ms Jody Blake, the Clerk Assistant, the ushers, the Captain of the Guard, Mr. John Flaherty, who has been a great help and a great friend to me personally in my membership of the House, the Superintendent and all the staff in every part of the House who help and assist us on a daily basis. It certainly has meant a great deal and has helped us considerably.

I hope that Seanad Éireann will survive, succeed and be significantly reformed. I believe in accountability, particularly to the taxpayer, and in being the protector of the taxpayer. With the general election over the people have given a 55% mandate for change to a new Government. I wished it well yesterday, as I wish well the Minister, Deputy Fitzgerald, who was here today as its representative. I did not get an opportunity to congratulate her, the former Leader of the Opposition, whose former seat I am now in. I wholeheartedly congratulate her. How proud we are of her being appointed to the Cabinet, coming directly from the Seanad in her position as Leader of the Opposition.

Today's business exemplifies to the people of Ireland the good Seanad Éireann is doing. I certainly hope, with the wishes of the electorate, to be re-elected and be back here. If I am not, it was the highlight of my career being a Member of this House. Beidh lá eile.

Unfortunately days like this on which the work is done on an all-party basis are all too rare in the Seanad and much work that deserves a great deal of attention is not given enough attention. There have been a few occasions during the lifetime of this Seanad when we all worked together to the advancement of good, rights-based legislation. I would like to think that in the next Seanad it will be the way work is done on a regular rather than a rare basis.

I commend the Green Party for the work it has done. Rather than thank the Minister of State, Deputy Kathleen Lynch, I wish her well. The path she laid out yesterday for what she proposes to do in her area of responsibility bodes well for it.

I thank the Cathaoirleach as he is retiring. I hate the sound of valedictory speeches. I certainly hope I am not making mine here, but I wish him well and thank the staff for their time in the 23rd Seanad.

I was a little confused when I came in today. It is still the 23rd Seanad and I cannot understand why all of my colleagues have swapped sides. They are doing the House a disservice by deciding that, because an election took place in the other House, the consequences of it mean they should transform themselves here. I refuse point blank to swap sides because this is the side on which I was allocated my seat and I shall remain here for the lifetime, and the dying moments, of the 23rd Seanad.

Will Senator O'Malley be receiving a Taoiseach's nomination?

It may or may not be the last day as I do not know what the future holds. On my own behalf, as I did not do it earlier, I congratulate Senator Cummins on his appointment as Leader of the House, and Senator Coghlan on his appointment as Government Whip. I thank Senator Burke, the Leas-Chathaoirleach, for his help and co-operation and outstanding work for me here, and the many other Members who presided in the Chair to help me. I thank the Captain and the ushers for their help and co-operation in the House. I thank Senator Cassidy, the Leader for most of the time, and Senators Wilson and Glynn, the Whip and Deputy Whip, respectively, and wish them well for the future. I thank the staff of Ms Lane and Ms Blake who have shown professionalism and expertise of a high order. I wish the best of luck to Senators standing for election and also to Members of the House who are not standing, and wish them well in the future.

I had my differences with Members from time to time but I always tried to uphold the rules of the House to the best of my ability. I wish this House well in the future. Whatever the changes proposed for Seanad Éireann, they should be carefully considered and not made lightly. From my experience of almost 14 years in this House, I have found Seanad Éireann to be exemplary in the manner in which it dealt with all legislation. Unfortunately, my regret on occasions was that some really outstanding contributions on legislation, and outstanding efforts made by Members of this House in going in depth through legislation to do what was best for the legislation and the country, were not reflected in the media. I wish the Minister of State, Deputy Kathleen Lynch, well for the future. I sincerely thank the recording staff and those who keep every word on the record for the future, and wish them well.

Question put and agreed to.

When is it proposed to sit again?

The Seanad is adjourned sine die.

The Seanad adjourned at 1.10 p.m. sine die.