Dáil Éireann - Volume 418 - 29 April, 1992

Private Members' Business. - Mental Treatment (Amendment) Bill, 1992: Second Stage (Resumed).

[2075] Question again proposed: “That the Bill be now read a Second Time.”

Mr. Moynihan: Before I moved the adjournment of the debate last night I was referring to the dramatic reduction in the institutionalised population and the move to community treatment. We should not take it that mental illness will be eliminated when we close large institutions. Mental illness will remain with us but, because of the immense progress made in the therapeutic area, a substantial number of cases can be treated in the community. That brings its own problems. A substantially increased investment in psychiatric community nursing care is of vital importance.

I am sure the Minister is aware of the degree of concern among responsible organisations and individuals about the discharge of numbers of long-stay institutionalised patients. It is true that many of those patients have made remarkable progress. Many of them are extremely happy in the community or living with relatives, but there are signs that a number of them, especially those in our cities, live in unsatisfactory accommodation and have a level of security well short of the required standard. In preparing new proposals supervision and the standard of care for discharged patients are of vital importance.

There must be increased resources to provide for a massive expansion in community psychiatric care services. At present the general level of that community care is restricted to a five-day week. Mental illness cannot generally be controlled or treated on the basis of a five-day week nursing structure. I appeal to the Minister to keep that in mind when drafting the new proposals, which will take our services for the mentally ill into the 21st century.

The points made by Deputy Fennell in calling for an appeal board will, in accordance with the programme set out last night by the Minister, remain valid [2076] for some time because it is predicted that involuntary admissions will remain a feature of our service. While that is the case we need to ensure that every psychiatric patient has recourse to an independent body if he or she feels the detention is unreasonable.

Minister of State at the Department of Health (Mr. Flood): I welcome the consensus expressed here last night about the need for new mental treatment legislation and a review generally of our mental health services. I join with the Minister for Health in welcoming this opportunity to debate the issues which must be addressed in new legislation. I commend Deputy Fennell for her interest in the welfare of the mentally ill. I respect her wish to provide greater legal safeguards for mentally ill patients in psychiatric hospitals. Unfortunately, the Government cannot accept this Bill as drafted because it does not deal in a comprehensive way with mental treatment issues and because some of its provisions are outdated.

New legislation should provide comprehensive safeguards for detained patients which reflect our society's concern for the welfare of the mentally ill. A mental treatment Act must conform with our obligations under the European Convention on Human Rights and Fundamental Freedoms and accord with the United Nations principles on the care of the mentally ill. It should also provide a firm foundation for the development of psychiatric services into the next century. Deputy Fennell's Bill, I am afraid, falls short of the comprehensive safeguards we would all wish to see for the mentally ill. The provisions would not conform with our international obligations under the European Convention nor implement the recommendations of the UN principles. It does not provide a new legal framework for the management of the psychiatric services.

I appreciate that the Deputy's objective may not be a comprehensive overhaul of the legislation in this area and that she is primarily concerned with remedying the most obvious and serious [2077] defects as she sees them. I can sympathise with this view but there are so many strands to this whole complex matter that it is extremely difficult to look at one or two specific aspects of it without considering the matter in the whole.

Deputy Fennell's Bill deals with just four issues in relation to the detention of persons in psychiatric hospitals. These are: the number of doctors signatures on a detention order, review of detention orders, information to be given to patients on being detained and the right of detained patients to take civil proceedings against any person involved in their detention care under the 1945 Act. I would like to examine the provisions of this Bill under each of those headings to explain why it cannot be accepted by the Government.

First I shall take the number of doctors' signatures required on an order. Section 3 provides that two registered medical practitioners shall sign every reception order detaining a person in a psychiatric hospital. The explanatory memorandum to the Act says that the purpose of this section is to remove the disparity of treatment as between public and private patients in detention procedures.

I wonder whether Deputy Fennell is confusing the different stages in the procedure for detaining a mentally ill patient. The first stage is the application by a relative or interested person to the medical officer of a psychiatric hospital to have a person detained. The second stage is the recommendation by one or two medical practitioners, who are usually general practitioners, that the person should or should not be admitted. The number of doctors who must give a recommendation depends on whether the patient is a public or private patient. The third stage is the decision by the medical officer of the psychiatric hospital to detain the patient. All these stages must be completed before a person can be detained under existing law.

What Deputy Fennell's Bill is proposing is that the distinction between public and private patients at the second stage of medical recommendation would remain but that two doctors would be [2078] involved in signing the detention or reception order at stage three. Most public concern has been expressed not about the number of doctors who sign the detention order but about the number of doctors who should recommend that a person be admitted to a psychiatric hospital.

The next item I wish to refer to is the review of detention orders. The issue of safeguards for detained patients has, however, moved much further than the number of doctors who recommend detention or sign the orders. It is no longer acceptable that the decision to detain is an exclusively medical one. In most European countries, the decision to detain a person in a psychiatric hospital is either a function of the courts or each medical decision is subject to review by an independent administrative body. The European Convention obliges that when a court is not involved in the decision to detain there should be review of each order by a judicial or review body. This obligation has been elaborated in judgments of the European Court of Justice during the eighties, after the passing of the Health (Mental Services) Act, 1981. Any new mental treatment legislation will have to provide for a review of every detention order. This review will provide an essential safeguard for all persons who are detained. It will ensure that psychiatrists who sign detention orders are accountable for the decisions they take. The experience of countries with review procedures is that very few decisions of psychiatrists to detain patients are overturned. However, it is perhaps significant that the proportion of people who are detained is lower in these countries than in Ireland.

Deputy Fennell's Bill provides for the establishment of a mental health review board or boards. The function of these boards would be to review the detention or conditional discharge of a patient if the patient makes an application to the board for such a review. The board would also automatically review the detention of any person detained for more than two years. The functions of the review board are the same as in the 1981 Act. The main [2079] shortcoming with the functions of the review boards in Deputy Fennell's Bill is that, with the exception of those detained longer than two years, a board can only act on an application from the patient or other interested party. For the reasons outlined, a review board with such a limited role would not meet this country's obligations under the European Convention on Human Rights. Any future arrangements must provide for the review of every detention order, irrespective of whether the patient seeks a review.

A second problem with the review boards proposed in Deputy Fennell's Bill is the grounds on which a board can order the discharge of detained patients. The Bill provides that the board may direct the discharge of a patient if they are satisfied that detention and treatment in the hospital are no longer necessary in the interest of the person's health or safety or that, if released, the patient would not be likely to act in a manner dangerous to himself, hereself or to others. I accept that the wording of Deputy Fennell's Bill is an advance on the 1981 Act but it still has major shortcomings. Under this Bill the onus would be placed on the patient to prove that he or she no longer needs to be detained for treatmen and that if released, he or she would not act in a dangerous manner. The onus should be on the person detaining the patient to say why there is good cause for detention. This major point needs considerable analysis before any final conclusions can be reached.

I note, however, that Deputy Fennell does not specify any grounds in her Bill for a review board in reaching a decision in relation to a person who is conditionally discharged, and this is a major omission even allowing for the limited scope of the Bill.

Deputy Fennell's Bill has, with justification, not repeated the provision of the 1981 Act providing for an appeal against a decision of a review board to the Minister for Health. Under the European Convention, a decision of a review board may not be overturned by an administrative [2080] or executive body. However, Deputy Fennell does not provide any appeal in section 6 against a decision of a review board. As with the review of the detention of a person detained longer than two years and of conditional discharge, there should be an appeal to the High Court against a decision of the review board.

I would also question whether the idea of one review board per health board area is the most appropriate way to organise review of detention orders. The 1981 Act envisaged more than one such board but perhaps we need to look afresh at this issue. It is important that review procedures are consistent in every part of the country if they are to win the confidence of patients and practitioners. It would be extremely difficult for eight separate review boards to work in a consistent and coherent manner. Deputy Fennell envisages that they would not even have a common secretariat but would rely on each health board for administrative support. With eight different boards and secretariats, it might not be long before serious anomalies would emerge in the decisions of review boards.

This is an important issue that should be addressed in terms of the efficient and acceptable organisation of review boards. A national review board is probably sufficient if the personnel were drawn from the local board areas.

Because of the need for consistency and the importance of being seen to be fair, it might be better to have a single review board with a small secretariat and a panel of people in each region who would carry out the work of the board. The regional panel would ensure speedy review and the single secretariat would facilitate a consistent approach to decisions at regional level. The review provisions of this Bill are going in the right direction but they fall short of the comprehensive review procedures which are now necessary to reassure the public that no person is detained unnecessarily, and to bring out procedures into conformity with our international obligations. This is one of the reasons the Government cannot accept this Bill. On [2081] information for detained patients I would now like to deal with section 9 of the Bill which repeats the provision of section 34 of the 1981 Act requiring the medical officer in charge of a psychiatric centre to give a detained patient a copy of the detention order and to explain to the patient, both orally and in writing, his or her rights and entitlements under the Act. The patient's right to information be safeguarded by legislation, but there may be more effective ways of ensuring that the patient is informed than by the provisions in this Bill. Should it be the medical officer in charge of the hospital who is responsible for providing this information? Is there a conflict of roles for the medical officer? On the one hand, he or she may be responsible for the decision to detain a person and, on the other, the same doctor is to be responsible in this Bill for informing the patient of his or her rights. Will patients have confidence in such a system?

In the Netherlands in the early eighties the difference between formulating the rights of psychiatric patients and the practical application of these rights was recognised. To bridge the gap between theory and practice, an independent foundation of patient advocates was created in 1981, with the support of the Dutch Government. The patient advocate's main task is to assist patients in safeguarding their legal rights, in finding solutions to patients' complaints, in giving advice about their legal position and, if necessary, by offering legal advice. The work of the patient advocate is made possible through an agreement between each hospital and the national foundation. This agreement gives the patient advocate the right to visit all the wards and to talk to all patients who also have the right to contact the advocate. In 1990 the national foundation employed 36 patients' advocates, working in 47 hospitals. The work of the foundation is financed by the Dutch Government. I am not proposing this as a framework for this country, but I mention it as an example of the way in which patients' rights can be protected and the different approaches [2082] one can adopt in seeking this worthy objective.

There is a number of options for ensuring that patients are informed of their rights. Another approach would be to involve voluntary bodies active on behalf of the mentally ill in this role. A third option might be to make the health boards responsible for ensuring that patients are properly informed, with the proviso that no one who is directly involved in the procedure for detention should be assigned the task of informing patients of their rights. Health boards could make use of a variety of means to ensure that patients were informed. They might contract the responsibility to a voluntary body, appoint an information officer in the hospital or assign the responsibility to staff working in a separate service, such as community care.

While I sympathise with Deputy Fennell in the intention behind this section, it is too limited in scope and could give rise to conflicts of interest for medical staff. On civil proceedings section 10 of Deputy Fennell's Bill repeals sections 259 and 260 of the Mental Treatment Act, 1945. Section 259 of the 1945 Act put a time limit of six months on any proceedings taken by a person who has been detained in a mental institution. I am glad to say that this section is no longer on the Statute Book. It was repealed by the Public Authorities (Judicial Proceedings) Act, 1954.

Section 260 of the 1945 Act provides that a person who is or has been detained cannot bring civil proceedings against a person involved in his/her detention without the permission of the High Court. Subsection (4) of the section has been repealed by the 1954 Act to which I have just referred.

It is important to be clear to what section 260 refers. It does not limit a person's right to seek an order of habeas corpus against his or her detention under common law or under Article 40.2.2 of Bunreacht na hÉireann. Section 260 applies to a situation where a patient who is or has been detained wishes to take proceedings against a person involved in [2083] his or her care under the 1945 Act. Before a person can take such proceedings he or she must have the permission of the High Court. The High Court must be satisfied that the person against whom the proceedings were taken acted in bad faith or without reasonable care.

The intention behind the section was to protect staff involved in the case of psychiatric patients from civil suits in the courts which might arise from the mental instability of the patient. I agree with Deputy Fennell that this issue needs to be looked at again in the light of modern standards of justice. It is not a black and white issue. However, it is perhaps instructive that mental treatment law in a number of jurisdictions has similar provision to that of section 260.

There are a number of major issues relating to detained mentally ill persons which are not dealt with in this Bill. I accept that the Deputy may feel that the specific issues she deals with are so urgent that they cannot or could not wait for overall legislation in this area. Nevertheless, I feel that any Bill which will replace the 1945 Act must deal in a comprehensive way with all the important issues in the field of mental health. This is another reason the Government cannot accept Deputy Fennell's Bill. I would like to mention just a few more which include safeguards to protect the patient's right to consent to treatment.

Under common law the administration of medical treatment to a person without his/her consent is unlawful unless the treatment is urgently necessary. Consent may be given expressly or implied by conduct. Valid consent implies that the person has been told about the nature and purpose of the treatment, is able to understand its nature and purpose and consent must be given without coercion or unreasonable influence.

It has been widely assumed that if a person was involuntarily detained in a psychiatric hospital for treatment, he or she was not competent to decide whether he or she should be given treatment without consent. That assumption has been challenged in a number of countries with [2084] the increasing recognition of the rights of detained patients. Procedures will be required in new legislation to ensure that a detained patient gives express consent to medical treatment whenever possible or, if he/she cannot give consent or refuses to give consent, to define the conditions under which such treatment may be administered.

Another issue which needs to be addressed in new mental legislation is the position of mentally ill offenders. At present a judge has no power to remand an accused person to a psychiatric hospital for assessment or treatment; a judge cannot order that a convicted person be sent direct to a psychiatric institution for treatment. The judge may only annex a recommendation for psychiatric treatment to a sentence of imprisonment. He or she may also suspend sentence if the convicted person seeks treatment on a voluntary basis.

Psychiatric treatment is provided to prisoners by psychiatrists who visit the prisons on request or, where the illness is severe, by transfer to the Central Mental Hospital, Dundrum. The advantage of this system to the health services is that a service is provided locally to the prisons with a specialist service in Dundrum with minimal demands on the psychiatric service. Unlike most European countries, prisoners are not admitted to the psychiatric hospitals.

These issues were addressed by the Interdepartmental Committee on Mentally Ill and Maladjusted Persons, better known as the Henchy Committee, after its chairman, Mr. Justice Henchy. In their third interim report 1978, the committee commented that:

many persons are dealt with by the Courts as “normal” offenders who are either not responsible (or not fully responsible) for the conduct charged against them or who, even if fully responsible for such conduct, are in need of psychiatric or other special treatments. The inability or restricted ability, of the courts to order that convicted persons receive appropriate [2085] psychiatric treatment is a grave defect in the present state of the criminal law.

The legal issues and service implications arising from any changes in existing law in relation to mentally ill offenders are complex and will require widespread consultation. The Green Paper will provide an opportunity for consultation and debate.

The Minister for Health spoke last night about the need to provide a new legal framework for the psychiatric services as they develop on the model recommended in “Planning for the Future”. The fundamental shift which has taken place in the delivery of psychiatric services from a service based on isolated institutions to one which is integrated with other health services and based mainly in the community must be underpinned by appropriate legislation. The Bill we are debating does not address this issue.

The Mental Treatment Act, 1945, no longer provides a satisfactory legal basis for services designed to provide modern methods of care for the mentally ill. It has been amended so frequently and so extensively that it is difficult to be exact about the legal responsibilities of health boards and resident medical superintendents. New legislation is needed to clarify the responsibilities of health boards in relation to mental health illness and to safeguard the rights of detained patients in our psychiatric hospitals. The thrust of the Mental Treatment (Amendment) Bill, 1992, is to safeguard the rights of detained patients. As I have argued, however, the Bill does not provide adequate safeguards. It does not refer at all to the management of the services. New legislation will need to be introduced to embrace the full range of issues reflecting the recent transformation in the delivery of our psychiatric services.

My colleague, Deputy O'Connell, Minister for Health announced last night that the Government were examining a Green Paper on the development of services for the mentally ill and new mental treatment legislation. The purpose of the Green Paper is to review progress in [2086] relation to the implementation of “Planning for the Future” and to propose options for legislation for the psychiatric services which will promote a psychiatric service of a high quality and protect the rights of psychiatric patients. Publication of the Green Paper will allow interested parties to engage in full and open discussion on options put forward to adequately protect the rights of detained persons and measures designed to develop the psychiatric services.

The Government are determined to avoid a repetition of the unhappy experience of the Health (Mental Services) Act, 1981. They are conscious of the need to achieve a consensus on the measures needed to safeguard the rights of detained patients and the framework for future development of the psychiatric services. In relation to the former it is important to ensure that proposed legislation will fully comply with this country's obligations under the European Convention for Protection of Human Rights and Fundamental Freedoms and the International Convenant on Civil and Political Rights under the auspices of the United Nations.

While the provisions of Deputy Fennell's Mental Treatment (Amendment) Bill, 1992, are an improvement in the rights of detained patients, they are too narrow in scope and would not satisfy this country's obligations under international law. It would be very inappropriate for us to consider the introduction of amending legislation which does not meet our obligations in this respect. I regret that for these reasons the Government cannot accept this Bill.

Instead I recommend to the House that it support the approach outlined by the Minister last night — that the Government propose to publish the Green Paper on mental health to initiate wide ranging debate and consultation on the issues involved in new mental treatment legislation. Following this consultation, the Government will announce their decisions in relation to new legislation prior to publishing a new mental treatment Bill.

I should like to avail of this opportunity [2087] to comment on the remarkable changes which have taken place and are taking place in our psychiatric hospitals, changes which demand a new legal framework. Perhaps the most dramatic advance in the treatment of mental illness was the introduction in the fifties of prescribing drugs to sufferers of mental illness. This drug therapy provided psychiatrists with the resources to treat some of the most profound psychiatric conditions. This landmark development made it possible to reduce isolation as a method of treating psychiatric patients who might be a danger to themselves or to others.

These advances, particularly in European countries, provoked many to question whether large impersonal custodial regimes with a lack of privacy and a lack of social and intellectual stimuli were the most appropriate or satisfactory form of care for mentally ill patients. In 1953 the World Health Organisation envisaged the custodial role of the mental hospital changing and acting as a base for psychiatric services to a defined geographic area. The progressive developments in psychiatric medicine paved the way for patients who were formerly long term patients in psychiatric hospitals to be discharged from hospitals and led to a growing acceptance of the concept of community care for the mentally ill. The fundamental principles of comprehensive community mental health are now widely accepted internationally.

In Ireland the driving force behind the significant and systematic shift from an institutional form of care for the mentally ill to community-oriented care has been the study group on the development of the psychiatric service who published their findings in the report Planning for the Future in 1984. Their terms of reference were to examine the main components both institutional and community of the psychiatric services, to assess the existing services, to clarify their objectives and draw up planning guidelines for future development of the service with due regard to cost implications, to carry out such studies and to take part [2088] in such consultations as were necessary to assist this examination.

The study group found that the psychiatric hospital was the focal point of the psychiatric service in most parts of the country, that large numbers of patients resided permanently in these hospitals and that many of them had lived there for years in conditions which were less than adequate because of overcrowding and capital under-funding. In addition, the study group noted that staff and public attitudes had tended to concentrate effort on hospital care, as a result of which community facilities were relatively under-developed. The study group also formed the view that hospitals were designed to isolate the mentally ill from society and that this isolation still persisted. I wish to commend Deputy Fennell for bringing this Bill before the House. It has enabled us to have a good discussion and debate on the issues concerned. It comes at a time when the Green Paper on this issue is with the Government. I hope that arising out of all these debates and discussions that those of us in this House, including myself, who have had an interest in this matter will see real and lasting progress made, which I think is sought by all members of the House.

Mrs. Barnes: I join with the Minister of State in commending Deputy Nuala Fennell for introducing this Bill and raising awarness and consciousness over the past year of how certain people have been victims of inappropriate detention in mental hospitals. In her introduction to the Bill Deputy Fennell documented many heartbreaking cases which I believe appalled all of us. If this continued, patients, particularly women, who have been treated like this would feel extraordinarily vulnerable. I apologise for not starting my contribution by asking the permission of the House to share my time with Deputy John Browne.

An Ceann Comhairle: I am sure that is very satisfactory. Agreed.

[2089] Mrs. Barnes: It was because of such heart breaking cases that Deputy Fennell felt there was not only a real need for this Bill but a real urgency about it. Therefore, while the Minister of State naturally made a case for not accepting Deputy Fennell's Bill, I think all of us would agree that this Bill could stand in its own right. The Minister said that the Bill is not broad enough and does not meet all the international standards, but if the Bill is given a Second Reading we can work on the areas referred to by the Minister on Committee Stage. This would enable us to strengthen the Bill. We could even consider setting up a special committee to deal with any complex matters in the Bill.

It is appalling to think of the way in which these services have been allowed to be downgraded. As both the Minister of State and Deputy Fennell said, we are not in accord with international standards in this area or the Human Rights Declaration of the United Nations, an organisation of which we are proud to be a member. We make a very serious and generous contribution to the UN peacekeeping operations, but we need to study the UN conventions, the Declaration on Human Rights and the rights of women and children to ensure that not only do we have a high profile in terms of our peace-keeping activities, which we all fully support but that we can also stand proudly at the UN, and in Europe and say that we have introduced legislation which does not deserve any criticism.

As the Minister rightly said, this area has not been reviewed or amended for many years. Deputy Fennell pointed out that the objective of her Bill was to amend the 1945 Mental Treatment Act. Great strides have been made in medical procedures and particularly in the fields of psychology and psychiatry. Thankfully we no longer treat those who were termed “mad people” as other than human beings who are suffering a deterioration of mental and emotional faculties and, therefore, need treatment. Certainly, they should not be segregated or stigmatised for the rest of their lives. I would like to think that the changes [2090] made in these areas will be taken into consideration in the preparation of a Bill.

Deputy Fennell pointed out the loopholes in the very real injustices against people in this isolated and vulnerable position. The objective of her Bill is to provide greater safeguards against inappropriate detention in mental hospitals. Nobody could have believed that that type of enforced incarceration and total denial of a voice and of justice to a citizen could have taken place. Deputy Fennell has been raising this matter for many years. Yesterday she outlined a very dramatic and heartrending case. It shocked all of us that in 1991 what seemed to be a Dickensian case arose where a woman was not alone denied protection within her family home but was wrongly placed in detention. In such a case it is impossible to prove that you are sane and that you have been wrongly detained. That is why we must be very careful and responsible in this area. Not only are these people vulnerable but they are powerless once they are admitted to a mental hospital. It is almost a catch 22 situation because to insist that one has been unjustly and wrongly detained sometimes seems to add to the diagnosis of insanity. That is something we must guard against resolutely.

We must ensure that mental patients have the same rights as the rest of us. They must have full access to commital documents relating to them. Due to the precarious position in which they find themselves we must positively discriminate in favour of these people who are denied the opportunity of making a case for themselves and who, if they were not detained and cloistered would be accepted as responsible.

Deputy Fennell highlighted something we all find unacceptable. The last thing we should allow here is a two-tier health service with a difference between private and public treatment. An urgent review is needed is this area. Those who read this Bill I am sure will support the thrust of it. It provides protection and support for the people concerned. It would amount to civil rights for patients if the time bar of six months during which legal [2091] proceedings may be instituted for wrongful commital, and providing for normal access to the court for damages for false imprisonment, was eliminated. Such a time bar is not just unnecessary; it creates an injustice which, considering what the person has gone through, is intolerable. We must ensure that these people have equal rights and access to courts and documentation.

I agree with the concept of review boards and that the representation on these boards should be broadly based. They should consist not only of skilled professionals but also of compassionate lay people with experience and community care expertise. Until such a structure is set up patients who have been treated in an unjust way will feel vulnerable. It is important that there be an objective board to which these people can make their case and that they be seen to be independent.

It is hard to believe that it is only now we are attempting to amend the 1945 Act considering all the changes that have taken place and the hardship and injustice suffered by some people. It is wrong to talk about review committees, Green Papers or reports, before drafting such legislation. Legislation at the drafting stage will not include all the necessary safeguards and be free of anomalies and loopholes. That is why the debate on Second Stage and, particularly, Committee Stage is so vital. Committee and Report Stage debates are the backbone of our procedures in Parliament. In the majority of cases a Bill undergoes a great process of change in the House. I appeal to the Minister to use this Bill as a foundation on which he and the parliamentary draftsmen can build. We accept that in drafting a private Bill a Deputy cannot avail of the expertise and drafting skills that are available to a Minister. A tremendously strong arm of our democracy is that Private Members' Bills are allowed to be introduced and this allows us to debate urgent matters that may have taken a back seat because some of our most vulnerable, voiceless and powerless [2092] people are involved. This Bill sets out to represent their views.

I appeal to the Minister to consider seriously the tremendous boost it would be to the work of this House and to the rights and privileges of this House if a Private Members' Bill which was introduced in such a spirit of sincerity and which reflects a genuine need were taken on board. Deputy Fennell had not the back-up resources of the parliamentary draftsman and I commend her on the amount of work she has put into this Bill. She would be the last person to say that this Bill is perfect in every way but we can all say that it highlights the desperate injustice which can befall some of the most vulnerable people in our society unless such safeguards are written into legislation.

May I once again appeal to the Minister, whom I know to be very compassionate and who recognises the thrust of Deputy Fennell's Bill, to use the Bill as the foundation for improving and broadening mental health legislation. The Fine Gael Party and Deputy Fennell, in particular, would be agreeable to accepting amendments. We are not claiming that the Bill is perfect, but it is a great start. With the level of support in this House for the Bill and with the aid of the Department's expertise, we could produce a very fine Bill and we would not have on our conscience the terrible injustice of incarcerating people who do not need treatment but who are totally isolated and powerless to fight committal when this happens to them.

Mr. Browne (Carlow-Kilkenny): Ar an gcéad dul síos, ba mhaith liom comhghairdeas a dhéanamh leis an Teachta Nuala Fennell a thug an Bille seo os ár gcomhair agus a thug deis dúinn labhairt ar na fadhbanna a bhaineann le daoine a bhfuil galar meabharach acu. Tugann sé deis dúinn freisin a fheiceáil nach bhfuil ciall ar bith leis an chóras sa Dáil seo, mar ní féidir le haon rud tairbheach teacht ón taobh seo den Teach. Caithfidh an Rialtas na forálacha fiúntacha a thabhairt isteach. Ach nuair a bheidh na comhaltaí atá thall ansin ar an dtaobh seo taréis [2093] cúpla mí, beidh athrú ar an scéal: ní bheidh aon chiall acu nuair a thagann siad go dtí taobh an Fhreasúra.

I compliment Deputy Fennell on this very important Bill which highlights the extreme suffering that some people have to go through. While I welcome the sympathy which was expressed so ably by both Ministers, I am amazed that in 1992, we do not have a system whereby the Government will accept an Opposition Bill. The Minister of State, Deputy Flood, outlined a great many little things that need to be improved on but I ask why the Government cannot accept the Bill and table amendments on Committee Stage to make the necessary changes. What is wrong that the Government cannot improve on the Bill from their point of view?

If Deputy Fennell can bring forward this Bill on her own why will the Government not support her with all their resources? Also why do we only take on the worst aspects of the systems we copy? If Members of the British House of Commons who are lucky enough to have their Bills selected can be given all the resources available to the Government, why can we not adopt that aspect of British parliamentary procedure? It looks as if we will talk about Dáil reform forever, but do nothing about it. As an Opposition Member for the past two and a half years I find the system most unsatisfactory. As I wrote in an article in the Sunday Independent one time, it is like asking Sean Kelly to win the Tour de France on a “high nellie”. The system in this House is archaic, out of touch and not relevant to the nineties. This is not the fault of the present Government but it is time we reformed the system and allowed for common sense.

The Minister spoke about a Green Paper on mental health but we will all be green in the face before anything will be done for the mentally ill. There is no question of a Bill being introduced during the present term of this Government. The Green Paper may be produced but if it is to be of any value a great deal of time will be spent discussing it. Then a White Paper will have to be published [2094] before the Bill is introduced. I can assure the Minister that he will not introduce a Bill on mental treatment during the lifetime of this Dáil. As I said when I spoke in Irish, after the next election we will be on opposite sides of the House and with a bit of luck we will be introducing this Bill and Deputy Roche's brains will be going to rust over here because he will be regarded as an obsolete article from Wicklow. There will be no respect for the Deputy when he is on this side of the House.

The Government have an excellent opportunity to amend this Bill introduced on Deputy Fennell's initiative, thus giving relief to the mentally ill.

It could be said that Nero fiddled while Rome burned — perhaps it would be dangerous to say that Ministers were fiddling in the present circumstances — but it can be said that the Ministers are sitting idly by when they should be dealing with the foundations of a great Bill that should be accepted. Richard Lovelace who died back in 1658 wrote lines that most people are familiar with: Stone walls do not a prison make nor iron bars a cage. That statement was put in more positive terms later by somebody else: “Beauty is in the eye of the beholder”. It all depends on how you look at things.

I am very glad that the high walls surrounding mental hospitals throughout the country were demolished many years ago. This did a great deal for the public and for the patients in the hospital. I have to admit that the high walls convinced me that the mental hospitals were prisons because you could not look in over the walls. I am quite sure also that the mentally alert who were in the hospital were convinced that they were locked up too. After the walls were demolished people outside suddenly found that there were beautiful flower beds and lawns around the hospital and they were surprised to find that the patients were occupied so well in working on the flower beds and gardens. That was the first chink of light into the mental hospitals, and I am glad that happened.

From the architectural point of view, our mental hospital buildings may be considered [2095] a thing of beauty and a joy forever but they are so intimidating I feel they are not suitable for somebody who is ill. The sooner we get people into houses which will provide some normality the better. I know that the present policy document “Planning for the Future”, provides for people going out into the community. This is helpful for the people who can live in the community. But I wonder if these huge buildings, long corridors and big rooms help people who suffer from all kinds of phobias to recover quickly. If these buildings were used for other purposes I would be happy; and if we had smaller buildings for those who are ill I would be happy, too.

I was amazed to learn people could be admitted involuntarily to hospitals, as has been outlined by Deputy Fennell. It is worrying that this can happen. I was shocked even more to find that a leading barrister found herself in the position where she could be admitted to a mental hospital at her husband's insistence. If she can be forced into hospital, what chance has the ordinary person who is not aware of his rights. If Deputy Fennell did nothing else except highlight that situation, then she has done more than her share to highlight the difficulties facing mentally ill patients or, worse still, those who are not mentally ill but who can be regarded as such and can be locked up.

At present we have a prisoner who has been pardoned, and we know how he must have felt. How must a sane person feel who has been certified and admitted to a mental hospital. If somebody from a mental hospital complains to us or talks about something that has gone wrong, we are inclined to say they would not be in the mental hospital if they were not unbalanced, but perhaps we should give more credence to what they tell us.

The document “Planning for the Future” has worked effectively so far as community care is concerned where people have been sent out into hostels. One of the difficulties is that there is not a sufficient backup service. That is no reflection on the staff of the hospitals [2096] who organise it but simply that we are living in a time of cutbacks. The idea of six or eight people who are capable of living together in houses is a good one as it gives them a more normal life and makes them feel part of a family. It must come as a shock to a person who has been in an institution for 20 years and is capable of looking after himself, to be regarded as an individual once again because institutionalisation has an appalling effect on people.

I am glad to note that in my county five, six or, perhaps, eight houses have been provided for such patients, many of whom we can meet on the street, and they are doing quite well. The staff would like more money to purchase more houses, and that is something we will have to deal with. I am glad the day has come when we no longer admit mentally handicapped people to mental hospitals. It should never have happened. The mentally handicapped should not be in mental hospitals.

There are two views on admitting people of a certain age to these hospitals. Sometimes the medical staff say their hospital is not the place for them but that the patient should be in a geriatric home; in another case a relative may say the patient should be in a mental hospital. Old people can be sick mentally as well as physically and they should be treated individually.

As I am sharing my time, I will put the rest of my notes in my pocket.

Dr. Fitzpatrick: Le cead na Dála, ba mhaith liom mo chuid ama a roinnt leis an Teachta Dick Roche.

An Leas-Cheann Comhairle: An bhfuil sé sin aontaithe? Aontaithe.

Dr. Fitzpatrick: Tá súil agam go raibh an Teachta de Brún ag magadh nuair a dúirt sé go raibh súil aige go mbeimidne ar an dtaobh sin den Teach. Tógfaidh mé é sin le gráinne salainn.

Deputy Browne complained, and rightly so, about the way we conduct our business in this House and he said it could be ordered much better. I feel — and I will [2097] not allude to it in greater detail — the problem does not lie in the House or with the Members but with our system of election. In my opinion there will be no root and branch reformation of the way we conduct our business until there is a root and branch reform of the method of election to Dáil Éireann. However, we can leave that aside for the moment.

I would like to commend Deputy Fennell for bringing forward this Bill because the treatment of the mentally ill is and has been on the lowest level of the public mind over the years and is the least fashionable area of medicine or of public health. Compared with other areas, such as surgery, implants etc. it has been relatively neglected but this is not to say there have not been and are not outstanding people working in the mental health area, in our psychiatric hospitals, psychiatric institutions and now, increasingly so, in the community. Not all mentally ill patients are ill all the time; there are remissions, improvements and some people recover completely. This will be a long road and we will have to change public attitudes towards the mentally ill, their treatment and their acceptance as people in society with the same rights as everybody else. I agree with the Minister that while Deputy Fennell has focused our attention on our relative neglect of mental health, her Bill is too narrowly focused. It deals with 10 per cent of admissions to our psychiatric hospitals; the people who are committed under the Mental Treatment Act, 1945.

When reading Deputy Fennell's Bill today, I got worried about my own medical practice so much that I had to go back and check that what I was doing, and had been doing for the past 20 years, was correct both medically and legally. I found that two doctors are required to admit a patient to a psychiatric hospital. This has always been my practice — and of everybody else as far as I know — for admission to public psychiatric hospitals. Normally the general practitioners who should know the patient will sign what is [2098] commonly known as Form No. 6 — the pink form — and so will the patient's nearest relative. When the patient is taken to the psychiatric institution, the psychiatrist in charge or on duty will again examine the patient. It is his or her signature on the form that admits the patient to hospital. Ten per cent of all patients are admitted involuntarily.

I gather the starting point for Deputy Fennell's Bill was the inappropriate or downright malicious committal of people to psychiatric hospitals. While we should tighten our procedures, we cannot legislate for pure bad-mindedness or in-fighting in families. That is not to say that we should not build safeguards into a Bill. One of the safeguards suggested by Deputy Fennell is the establishment of a review board. That does not go far enough because the review would have to be at the instigation of named or designated people. There should be an automatic review of the condition of anybody who is admitted as a longstay patient.

Mrs. Fennell: There is provision for that in the Bill.

Dr. Fitzpatrick: I did not see that. This review should be carried out by outside people, not those working in the local health board area. The chairman of the review committee should be a person of goodwill and commonsense who is in touch with what goes on in the real world but that is only a detail that can be worked out another time.

A Bill should provide that appropriate treatment be given in proper surroundings, that the patient's rights are protected by a review committee or an outside specialist reviewing cases of long-stay patients, that patients are given access to their records and that there should be full discussion with them as to their rights. The medical profession are often not the best at explaining to patients why what is being done is in their best interests. In the area of mental [2099] health or psychiatry patients cannot be treated successfully without their full cooperation and their insight into what is being done. I do not know if this can be encompassed in a Bill. It may come down to the continuing education of the medical profession.

I note the Minister has promised us a Green Paper. In an area of such medical and social importance we should move slowly. That is not to say that the Department of Health should be allowed to sit back and do nothing until another Opposition Member or a Deputy on this side complains. This should be a starting point, and we should not put the issue on the backburner.

Mental Health affects everybody in the community and must be dealt with. There are fields like child and adolescent psychiatry and people with a mental handicap. Such people can have psychiatric problems. People with a physical handicap can have psychiatric problems. In fact, one person can have a multiplicity of problems. What we do again and again in medicine is to compartmentalise problems; we treat the disease and not the patient. We should view the patient as an individual in his own right.

There are other problems which are alcohol and drug related. There are severely disturbed patients who, under stress, can break up family homes and cause horrendous problems in neighbourhoods, not to mind their own home. There are patients who are inappropriately treated. One finds people being sent to prison who should be in a psychiatric institution and, as was mentioned by Deputy Browne, there are the elderly mentally infirm. Our knowledge of this area is only developing and treatments are changing all the time.

In the course of this contribution, Deputy Browne mentioned high walls around psychiatric hospitals all over the country. I recall when a psychiatrist was appointed by the Eastern Health Board many years ago his first job was to knock [2100] down the walls around the institution. Within a few years the health board had to put up railings to protect the people in the hospital from the depredations of people from outside. When one does one thing it often creates other problems. It is no harm to recall that the original definition of what we call a psychiatric hospital was asylum where a person could get rest from the problems of the world, faoiseamh ó fhadhbanna an tsaoil. We should never forget that part of the treatment of psychiatric patients. Sometimes they need asylum or rest for a while and not on a full-time basis or anything like it.

When we prepare a Bill we will need to beware of fashions in psychiatry. There are fashions in medicine and in psychiatry just as there are in any other walk of life. We should draft a Bill that will focus on the patient and on the community but will not allow the diktats of fashion in medicine to push one way or the other. If we are serious about this we should see that Dáil Éireann votes adequate finance for the treatment of the mentally ill and let us not be parsimonious about it. Fine words are great but money is what is required. Go raibh míle maith agat, a Cheann Comhairle.

Mr. Roche: I would like to thank Deputy Fitzpatrick for sharing time with me. I would also like to compliment Deputy Fennell on the Bill. It is very easy, when someone takes the time and trouble to put down a Bill, to identify the faults in it. That is not intended to be a hurtful reflection on the person who has taken the time and gone to the trouble to draft the Bill but to indicate why it would be wise, because of the complexities, for legislation to be produced by the Government.

I should like to put on record my wholehearted compliments to the Deputy who has taken the trouble to highlight the issue. The greatest service Deputy Fennell has done is to force us to debate this issue.

[2101] I do not have the experience Deputy Fennell has of the wrongful incarceration of people in mental treatment institutions but I do have some experience of people who have been wrongfully incarcerated in penitential institutions here and in the UK. I know from my dealings with those people the extraordinary turmoil that is caused not just because of the injustice but because of the sense that life is passing them by. How much greater that turmoil must be to some person who is wrongfully incarcerated. I acknowledge that a great service is being done in forcing us to focus on this issue. Indeed, I carried out some research on this issue and I must compliment the Deputy for forcing me to look at this important issue which clearly requires attention.

Last night the Minister for Health acknowledged that the law must be updated to keep pace with and facilitate service developments in this area. He further made the point that the law must be adjusted to conform with modern concepts in relation to the rights of the individual. The Minister of State said something similar earlier tonight in his short time in office, the Minister, Deputy O'Connell, has given clear evidence that the area of mental treatment will receive his attention. He has shown himself to be a man of compassion, he has experience in the medical field and his compassion and experience will serve us well.

Earlier this month, the Minister commented that the legal framework in which mental treatment services are based and the services themselves are inextricably interrelated and his proposal that we move forward with a Green Paper marks a radical shift in the delivery of psychiatric services which we all welcome. It is right and proper to say, again, that these welcome moves were initiated as far back as 1984 in the report “Planning for the Future”. The Minister of the day deserves praise for that.

In shifting the emphasis, we need to update the legal basis of the services — this issue lies at the centre of Deputy [2102] Fennell's Bill. It has been recognised in relation to the mental health legislation which was introduced almost half a century ago that we have reached the point where a radical review is needed. Indeed, that legislation is well past its shelf life.

While that legislation was considered to be progressive when it was introduced, it is now outdated. Indeed, when one reads it, one can see that it is based on a different psychological approach to mental treatment. It is interesting to note also that our thinking in this area has changed dramatically over the years. We are now dealing with what is as much a human right as an issue related to the law and to care. One of the most significant changes has been the move from an institutional psychiatric service.

Tonight the Minister of State outlined some of the things that must be done in any new legislation. He suggested, for example, that a new Bill must reflect society's concern for the welfare of those who are mentally ill, it must conform with European convention obligations and UN principles relating to the care of the mentally ill, it must provide a firm basis for psychiatric services for the next 50 years and, above all else, it must provide not just for those who are in need for a service but for comprehensive safeguards, in particular for the individual who might be placed in institutional care.

I am sure Deputy Fennell will excuse me, given the shortage of time, for passing to some of the criticisms I have to make of the Bill. If time was available I would deal in more positive terms with the positive sides of the Bill, but unfortunately, the provisions of the Bill, meritorious as they are, fall short of what is needed. As the Minister of State dealt with these issues in some detail, I will avoid duplication.

The Bill has two primary points of focus. It deals with two of the primary elements, reception orders and the proposal to establish mental health review boards, which I welcome. As the Bill deals with admission proceedures only in [2103] a summary way it is less then comprehensive. I have already acknowledged the value of what is being suggested but, apart from these two areas, the Bill does not attempt to deal with a range of issues which should be dealt with in new legislation.

Any new legislation should and must acknowledge the establishment of centres of care for in-patients and deal in detail with the legal obligations of the service providers. In a short Bill, given the difficulties outlined by Deputy Barnes, it is not possible for a private Member to do this in a comprehensive way. New legislation must cover in detail such issues as the responsibility for the delivery of services, the designation of centres and the licensing and control procedures of such centres, all these issues which should be addressed in detail have not been dealt with in this Bill.

Other serious issues which require attention include the question of guardianship as we move towards community based services, and providing protection against exploitation. The question of patient advocacy groups, how they should be established, their legal basis and how they should be funded also need to be addressed. There is a great tradition of voluntarism in Ireland but in a difficult and complex area like this where medical practice and law intertwine, funding and specialist knowledge will be required which are beyond the capacity of voluntary groups.

There are other issues which require debate and examination. The fundamental question of what represents mental illness, for legislative purposes, requires consideration and debate at this time. The question of whether global terms such as “mental disorder” should be used to encompass mental illness, personality disorder and mental handicap needs to be established. Deputy Browne touched on this. The extent to which these terms should be defined for statutory purposes, if at all, needs clarification, [2104] and no further legislative provision can be proceeded with without clarification on these issues because they go to the heart of the matter.

No provision exists for the compulsory admission, detention or supervision of mentally handicapped persons. It has to be decided whether this should continue to be the case and whether mentally handicapped persons should be subject to the same legal provisions as the mentally ill and, if so, whether these conditions will be covered by the blanket term “mental disorder”. I think that would be unsuitable but only a ministerial Bill could deal with this.

The question of admission to a hospital or a psychiatric centre needs greater consideration — I do not say this as an unfair criticism of the Bill — than possibly can be provided in a Private Members' Bill; neither does the Bill address voluntary admission or its replacement by informal admission. Clearly any new legislation must incorporate this change so that patients can enter psychiatric hospitals or centres in the same way that a person can enter a general hospital.

The Bill does not deal with the question of compulsory and emergency admissions or whether people should be admitted for observation or treatment. Somewhat surprisingly, the Bill does not specify with any degree of clarity the need for a certifying doctor to spell out clearly, and the procedures involved, patients' rights or the right of a patient to have a second opinion.

I realise that in making these criticism I may be seen as nitpicking, but that is not my intention. I wish to illustrate the extraordinary span that has to be dealt with in this area. I could go on in more detail but I would like to make the following point. Deputy Browne and Deputy Barnes asked why the Government cannot accept the Bill. I do not think the Government's non-acceptance indicates that they do not care about this area — I think Deputy Fennell would accept the Government's good faith — [2105] or that they suffer from Ministerial vanity. We have had no indication from either the Minister or Minister of State yet that they have fallen into this deadly way.

The reality is that this area is so complex — I have already complimented Deputy Fennell for putting it on the political agenda — in particular for the lay-person who makes up the bulk of Members, given the medical terminology used, that the wise approach would be to introduce the Green Paper. This will allow the widest possible discussion. Because the area is so extraordinarily complex and multi-faceted, it is impossible for us to deal with one element only, important though that element may be, and it is beyond the capacity of a private Member to deal with this in a Bill. While this may be so for technical reasons, a great service has been done in bringing forward this legislation, and I do not say that in a patronising way. By highlighting the issue, as Deputy Fennell has done we have seen yet another area in which human rights can be trampled on.

The extraordinary case mentioned by Deputy Browne is hard to believe. It is incredible to think that in the nineties this kind of thing can happen. I hope that the mere highlighting of this extraordinary state of affairs will help to prevent it happening again.

Debate adjourned.