19 April 2005
Dr. Henry: I move amendment No. 1:
In page 3, line 9, to delete "INSANITY" and substitute "MENTAL DISORDER".
I welcome the Minister of State, Deputy Brian Lenihan. I spoke at length on this issue on Committee Stage so I will spare the House a long explanation. I am anxious that the word "insanity" be removed from the Bill. During the Committee Stage debate, the Minister for Justice, Equality and Law Reform, Deputy McDowell, said he wanted to use the word "insanity" because everybody understood its meaning.
There are many words the meaning of which we understand but which we nevertheless do not use because they are considered politically incorrect, to use a phrase I dislike. In a recent radio discussion on racism and immigration, the Minister was asked by the interviewer about the type of phraseology he considered unacceptable. As an example, he replied that he would not use the "N" word because everybody understands it is a racist slur. We all remember the fuss created when Mr. Kevin Myers used some very inappropriate language in a newspaper article about children born out of wedlock. Incidentally, I found the phrase "cash crop whelping" far more offensive.
There are phrases it is unacceptable to use, therefore. One of the most important issues in regard to mental illness is ensuring that people seek treatment early. In this context, we would do well to avoid the stigma around the word "insanity". The Minister of State has progressed a little way, but I am a bit confused as to what he proposes to do with the title of the Bill. The title of the Bill is what will be out there in public. It is important that we make the Bill look as relevant as possible to the general public. "Mental disorder" and "mental illness" are the phrases that are used nowadays. They were the words used in the Mental Health Act 2001. They are also the words used in the Henchy report, which was written more than 25 years ago. I would hope the Minister and his advisers can see their way to do something about the title, and I would like the Minister of State to say how he sees the matter proceeding.
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Dr. Henry: When he was here, the Minister for Justice, Equality and Law Reform said how much he admired Mr. Justice Henchy, whom he described as the greatest legal brain of the last century. Mr. Justice Henchy stressed that the prisoner could become a patient. That is one of the reasons I feel so strongly about the matter. I want the prisoner to be treated as a patient once it is recognised that he or she is a patient.
The Minister of State talked about tradition. For goodness' sake, if traditional practices are wrong, they should change. I am sorry about Deputy Lenihan's remarks. The Bill is entirely Deputy McDowell's. When he was here, he did not say a word about tradition. All that he said was that he liked the word "insanity" because everyone knows what it means. The Minister did not say anything about tradition.
Amendment, by leave, withdrawn.
An Cathaoirleach: Amendments Nos. 2, 3, 6, 8, 9, 48 to 57, inclusive, 59 to 74, inclusive, 76 to 78, inclusive, 81 to 88, inclusive, 90 to 93, inclusive, 96, 98 to 106, inclusive, 108, 109, 111, 112, 118, 119, 124, 125, 128 to 130, inclusive, 132, 133 and 136 are related and may be discussed together by agreement.
Dr. Henry: I move amendment No. 2:
In page 3, lines 14 to 16, to delete "TO PROVIDE FOR THE ESTABLISHMENT OF A MENTAL HEALTH REVIEW BOARD" and substitute "TO PROVIDE SUCH PERSONS WITH THE SAME PROTECTIONS AS ARE PROVIDED IN THE MENTAL HEALTH ACT 2001".
My intention with this amendment is to save the taxpayer money. One interesting aspect of the explanatory memorandum is its statement that there are no financial implications to the legislation. I have never heard anything so ridiculous. There is no Bill without financial implications and if people are to be given proper treatment or care there will be financial implications. The explanatory memorandum states:
It is not anticipated that the proposals in the Bill will have significant financial or staffing implications. There will be some extra costs associated with the work of the new Mental Health Review Board because its responsibilities as set out in the Bill are more extensive and onerous than those of the ad hoc Advisory Committee which it replaces.
There will be expenses, not just with the review board, but also if there is to be any kind of semi-adequate care and treatment given to those who are at present not getting treatment.
The purpose of the amendment is to save some money for the taxpayer by providing that members of the mental health tribunals, established under the Mental Health Act, act in this manner and that the chair should comprise a judge or a lawyer of at least ten years' standing.
Is there a problem, a Chathaoirligh?
Mr. B. Lenihan: Which amendment are we discussing?
An Cathaoirleach: Amendment No. 2. We are taking a number of amendments together.
Dr. Henry: I have only seen these amendments myself so I can understand the Minister of State's confusion.
An Cathaoirleach: There is a grouping of amendments.
Dr. Henry: I only saw the groupings when I got here, so I will rely on the Clerk and the Clerk's assistant. If there is something the Minister of State objects to I hope he will allow me to remove it. This has been a bit of a rush despite it being over two years--
An Cathaoirleach: Would Senator Henry please repeat what she said?
Dr. Henry: I do not wish to continue until the Minister of State is ready. Is it all right to continue?
An Cathaoirleach: The Minister of State is ready.
Dr. Henry: As no one will take any notice of what I say I wonder why I bother. The mental health tribunals will have the advantage that the people comprising them, who would be much the same type of person as those on the Minister's review board, will get some experience as they deal with ordinary cases. When they come to criminal cases they can have as much advice and as many lawyers as they like, but I would like something already established to be used because those involved will have some experience. I hope there will not be people appealing to the review boards too often.
This is a practical initiative and my intention is not to be difficult. I wish the matter could have been examined more seriously. On Committee Stage, the Minister, Deputy McDowell, indicated he did not think much of the idea although a few people thought it was well worthwhile. I know it would involve extra work for the mental health commission but psychiatrists deal with the same kind of people.
The people who will be seen before the review boards will be serious cases. We have had people who committed murder come before the ad hoc review board. They were in the Central Mental Hospital or another mental institution and were deemed fit to be released. Then they committed another murder and there was more trouble. In England recently someone who murdered two people was brought back to a high-security designated centre and managed to murder another person inside the institution. We are dealing with serious issues and dangerous people. If we place more legal emphasis on the mental health tribunal review boards, they at least would have some experience of assessing cases, whereas we are going to have boards set up de novo for these cases. This is disappointing.
Mr. Cummins: I second the amendment.
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Dr. Henry: This raises an issue that displeases me. According to the terms of the Bill, the review body is under the control of the Minister for Justice, Equality and Law Reform, and must report to him.
I draw attention to the advice given by Mr. Justice Henchy in the third interim report of the interdepartmental committee on mentally ill and maladjusted persons. This was the basis from which we thought we were starting. The mental care review body in this legislation, referred to as the review body, shall consist of a chairman and deputy chairman appointed by the Minister for Health and Children after consultation with the Minister for Justice, Equality and Law Reform, one member and one substitute member appointed by the Minister for Health and Children, one member and one substitute member appointed by the Minister for Justice, Equality and Law Reform and two members appointed by the Minister for Health and Children from a panel of five psychiatrists nominated by the executive council of the Irish division of the Royal College of Psychiatrists.
This seems more concerned with the issue of health and the prisoner becoming a patient as opposed to what we have now.
Amendment, by leave, withdrawn.
Government amendment No. 3:
In page 3, line 16, after "HEALTH" to insert "(CRIMINAL LAW)".
Amendment agreed to.
Amendments Nos. 4 to 6, inclusive, not moved.
Government amendment No. 7:
In page 4, between lines 10 and 11, to insert the following:
"'prison' means a place of custody administered by the Minister;
'prisoner' means a person who is in prison on foot of a sentence of imprisonment, on committal awaiting trial, on remand or otherwise;".
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Dr. Henry: I look forward to hearing how helpful I have been. I appreciate how important it was to include these explanations.
Amendment agreed to.
Government amendment No. 8:
In page 4, line 11, after "Health" to insert "(Criminal Law)".
Amendment agreed to.
Amendment No. 9 not moved.
Dr. Henry: I move amendment No. 10:
In page 4, line 27, after "may" to insert ", on the advice of the Inspector of Mental Health Services".
It is suggested that the Mental Health Commission should be consulted. I tabled this amendment because the Minister for Health and Children has a great deal to do and far more than she expected. It would be extraordinarily difficult to be in position to identify a designated centre without getting advice from somebody in the area of mental health. We must delete the phrase "prison or any part thereof".
Mr. Justice Henchy does not recommend sending prisoners who become patients to prison. It is not ideal because there is no therapeutic environment. Prisoners who are psychiatric patients are being treated in prison. We should ensure they are in suitable institutions. I cannot accept a prison as a suitable institution and neither does Mr. Justice Henchy, the various international bodies or the European Convention on Human Rights. We are putting something into legislation which is considered unsuitable by an extremely experienced judge as well as international bodies. Prison is not a therapeutic environment.
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Dr. Henry: I move amendment No. 18:
In page 5, line 5, after "if" to insert "having obtained the opinions of two approved medical officers, one of whom is the clinical director of a designated centre, the court finds that".
The reason I tabled this amendment is that a judge in a court who has no experience of psychiatric matters is being asked to make a decision as to whether a person is mentally ill.
Mr. Cummins: I second the amendment.
Mr. B. Lenihan: The difficulty with the amendment is that the matters set out in section 3(2) must be determined solely by a judge. As the Minister stated on Committee Stage, there is no need to hear the opinions of two doctors on an issue which will, in all likelihood, be obvious to the court. Once a determination is made that a person is unfit to be tried, the judge may proceed to hear evidence in the matter from an approved medical officer.
Dr. Henry: I had the impression on Committee Stage that the Minister did not believe it necessary for the psychiatric profession to give an opinion in many areas.
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Dr. Henry: If it is possible for me to second the amendment, I would like to do so.
Amendment agreed to.
Acting Chairman (Mr. Mooney): Amendments Nos. 21, 28, 39, 58, 80, 110, 114 to 117, inclusive, 123, 127, 131, 134, 135 and 150 to 152, inclusive, are a composite proposal and should be taken together.
Dr. Henry: I move amendment No. 21:
In page 5, line 29, to delete "or" and substitute "and".
Mr. J. Walsh: On a point of clarification, did we not take those amendments previously with amendment No. 14?
Acting Chairman: Amendment No. 14 was not moved as amendment No. 12 was agreed.
Dr. Henry: This is a very important issue to me. I pointed out during the debate on Committee State that in half the Bill, the description was "care or treatment" while in the other half it was "care and treatment". The terms appear to be randomly dispersed. However, to my horror, where I suggested we should have "care and treatment", the Minister has changed it to "care or treatment".
I looked up the meaning of "care" in legal dictionaries. They referred to matters such as reasonable care and custody and asserted that it was not limited to the physical well-being of a child in terms of the provision of meals and comfort, but also that he or she had to have proper education and so forth. However, therapeutic care of a person was not mentioned anywhere.
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Treatment is extraordinarily important, as these people are ill. We could have a situation where we are simply warehousing these people in designated institutions. In the Mental Health Act, care and treatment is applied all the times. I do not care that is a civil Act while this is criminal legislation, it is all about people. It is about prisoners who have become patients. Mr. Justice Henchy, who was much admired by the Minister for Justice, Equality and Law Reform, asks for care and treatment for people. There is no definition for either care or treatment in the Bill that we are discussing today. However, in the Mental Health Act 2001, treatment is defined as:
in relation to a patient, [which the prisoner has now become] includes the administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder.
The Act uses the word "ameliorating". It does not state that there must be a possibility of cure. This is extraordinarily important because there is no point in moving people from one institution to another if one is not going to do something to help their situation.
I have only had a brief opportunity to examine the Government amendments on the transfer of prisoners. However, it appears to me that, according to later provisions in the Bill, someone might agree to a voluntary transfer to the Central Mental Hospital or another designated institution because he or she is considered to be mentally ill in a prison. If that person does not agree to treatment, he or she can be transferred back to the prison. Care alone will not be enough. However, in the Bill we are stating that either care or treatment will suffice. What about the prisoner who then decides he or she does not want treatment? That prisoner will be obliged to have it, even though the Bill earlier includes the wording, "care or treatment". I have never seen anything so confused in my life. I cannot understand why mentally ill people are not being considered as patients who are in need of treatment.
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Dr. Henry: The basis regarding treatment appears to change daily. The Minister of State gave Alzheimer's disease as an example. Nowadays, most people would think that far more should be done for people with Alzheimer's disease than just keeping them warm and feeding them. It was not a very good example. It could be a cost-saving effort not to treat people. I would not like to see that situation arise, particularly as the explanatory memorandum made reference to there being no financial implications. Of course there will be financial implications if we are going to treat people. I do not think the Minister of State's explanation is satisfactory.
Question proposed: "That the word proposed to be deleted stand."
The Seanad divided: Tá, 27; Níl, 16.
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Amendment declared lost.
Dr. Henry: I move amendment No. 22:
In page 5, line 30, to delete "commit him or her to a specified designated centre" and substitute "commit him or her to the designated centre subject to the agreement of the clinical director of the specified designated centre".
I have tabled this amendment concerning the requirement for the agreement of the clinical director of the specified designated centre due to the possibility of people being sent to a centre incapable of dealing with them. The Minister for Justice, Equality and Law Reform on Committee Stage did not give the amendment a good reception, which should surprise the Minister of State, but it is a serious problem. There are few closed units in this country where a person can be safely kept. Not only the safety of the person to be transferred must be considered but also the safety of staff and other patients.
It concerns me that the lack of facilities within a designated centre for a seriously-ill person might not be realised. It will be easy to transfer most of these people to somewhere that is not too secure as they are persons who have caused problems or committed crimes that are nuisances rather than anything of serious consequence. We are not focusing on people who have committed serious crimes only. It is important that the people at the other end of the spectrum have a closed ward. People may be seriously ill because they have not taken their medication in recent months. This can happen and it is worthwhile considering it.
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Dr. Henry: I see the difficulties presented by the Minister of State but there is a problem in that we are failing to establish proper psychiatric centres of use to such people. This might give some impetus to the issue.
Amendment, by leave, withdrawn.
Government amendment No. 23:
In page 5, line 30, to delete "or commit" and substitute "commit".
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Dr. Henry: I move amendment No. 30:
In page 6, line 34, after "court" to insert "only with the agreement of the relevant consultant psychiatrist from the relevant designated centre or the Central Mental Hospital".
This amendment deals with the same issue as discussed in other amendments.
Mr. B. Lenihan: Yes.
Dr. Henry: I am sure I will make as little progress with it. The significant shortage of proper places for people who may need to be detained is causing a terrible problem. I thought it wise to speak with someone in the designated centre or in the Central Mental Hospital before transferring a person in a taxi with a prison officer.
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Dr. Henry: Naturally, I will have some crib about this provision which astonishes me. The Minister of State is attached to the Departments of Health and Children and Justice, Equality and Law Reform. I keep trying to point out that the same psychiatrists will have to try to make both Bills workable. Section 18 of the Mental Health Act deals with a review by a tribunal of admission and renewal orders. I am delighted the Minister has reduced the number of days from 28 to 14 days, which is good. However, section 18(2) states that people should be reviewed not later than 21 days. Why is there no consistency? Why is it 14 days? One must remember it will need to be stuck in a psychiatric registrar's head that within 21 days, he or she will have to get going and do something, no matter what type of person is involved. We must try to make the Bill as good as possible.
I am delighted the length of time has been reduced but I would not have been unhappy if there had been some consistency. A psychiatric registrar, working in St. Patrick's Hospital up to the end of June, will be transferred to the Central Mental Hospital and he or she will be in the habit of saying, "These people have been in for 21 days, I must do something". He or she will be wrong because the length of time will have been reduced to 14 days. There is a need for some consistency.
We get into this mess again further on in the Bill where there are consultant psychiatrists and approved medical officers. Approved medical officers are described in the interpretation section as consultant psychiatrists. Why not use the same terminology in the Bill?
Mr. B. Lenihan: I take it the Senator is referring to the 2001 Act and to this legislation in referring to these inconsistencies. Of course, there is a fundamental distinction between this Bill and the 2001 Act. This Bill deals with persons who come before the courts and it provides a "regime", if I can use that somewhat sinister word, for them. The purpose of the 2001 Act is quite different and it deals with the general care and attention of such persons.
Dr. Henry: I know the people who must try to work these Acts.
Amendment agreed to.
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Dr. Henry: My amendment No. 36 is being discussed with this amendment and what the Minister has proposed goes a long way towards addressing it. I would have liked him to have gone further because it is hard enough for people who are not fit to plead to have their entire psychiatric history in the public press when perhaps they are at a stage of treatment when they know what is going on. It is also hard on families. What the Minister has done is a help. Having medical details of this nature disclosed in the press is always rather worrying. What the Minister has proposed will at least address the situation coming up to the trial. I would prefer if entire medical reports were not published in the press without the permission of the court. I would like the court to have the opportunity to give that permission if it believed it was relevant to the case. I would not like to think that a person's history over many decades would be disclosed in the press for the vicarious delight of the public.
Ms Tuffy: I thank the Minister for taking on board the amendment we proposed on Committee Stage and for tabling a version thereof. Amendment No. 34 is probably better worded than my amendment.
Mr. B. Lenihan: I thank Senator Tuffy. In regard to what Senator Henry said, this Bill was initiated in the Seanad and I am prepared to look again at the issue she raised as to whether the protection of medical records is sufficient. The Minister used the phrase "where evidence is adduced before the court" and I envisage that in the general run of cases, that is exactly what has happened to the medical report or assessment. If there is any doubt about that, or any opening where the medical profession might be exposed, it can be looked at between now and when the Bill is taken in the Dáil. I give an undertaking to that effect because I agree with the Senator that it is important the matter is safeguarded and made rock solid in the legislation.
Dr. Henry: I thank the Minister of State for his reply. My amendment No. 36 is straight from my favourite piece of light reading, the Henchy report.
Amendment agreed to.
Amendments Nos. 35 to 37, inclusive, not moved.
Dr. Henry: I move amendment No. 38:
In page 7, to delete line 26.
This is the one place where my light reading and I fall apart. "Irresistible impulse" is a concept not known in psychiatry. Of course, one will be able to find a couple of people to come forward in the courts and there may be terrible trouble in various court cases because of this concept on which the Minister is very keen. I have been reliably informed by a wide selection of psychiatrists that "irresistible impulse" is not considered to be a diagnosis in psychiatry. I query the wisdom of keeping this concept in the Bill. As the Minister of State's officials will tell him, I raised this issue on Committee Stage and I will not go over it again. I believe it will cause terrible trouble in the future. I am thinking of barristers on this occasion.
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Dr. Henry: I thank the Minister of State for his reply. I just have to tell my psychiatric friends to remember the good fees they will get going down to the law courts to argue on this issue. That, I hope, will cheer them up.
Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
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Dr. Henry: I move amendment No. 41:
In page 7, line 43, after "may" to insert "subject to the agreement of the relevant consultant psychiatrist of the relevant designated centre or, in the case of the Central Mental Hospital, the advice of a consultant psychiatrist from that hospital".
The purpose of this amendment is to try to get advice on where the courts were sending a prisoner who would become a patient. I doubt very much if I will get anywhere with it.
Mr. B. Lenihan: Amendment No. 42 which was taken with amendment No. 31, which reduced the period of referral from 28 to 14 days, might meet the point of Senator Henry's amendment. Otherwise the Minister is opposed to the amendment for the reasons already stated in regard to amendments Nos. 22 and 30. If the consultant psychiatrist or the designated centre refuse to accept the person, what are the courts to do?
Amendment, by leave, withdrawn.
Government amendment No. 42:
In page 7, line 45, to delete "28" and substitute "14".
Dr. Henry: Does this mean the person can be an outpatient for 14 days?
Mr. B. Lenihan: Yes.
Dr. Henry: That is a very good improvement. Well done to the Minister of State.
Amendment agreed to.
Acting Chairman: Amendments Nos. 43 and 44 are related and may be discussed together by agreement.
Dr. Henry: I move amendment No. 43:
In page 7, line 49, after "so" to insert "subject to the agreement of the relevant consultant psychiatrist of the relevant designated centre or, in the case of the Central Mental Hospital, a consultant psychiatrist from that hospital".
This amendment concerns the agreement of whoever is in charge of the treatment centre.
Amendment, by leave, withdrawn.
Government amendment No. 44:
In page 7, line 49, after "so," to insert "after consultation with an approved medical officer,".
Amendment agreed to.
Dr. Henry: I move amendment No. 45:
In page 8, line 10, to delete "for murder" and substitute "for any offence which on conviction carries a sentence of imprisonment".
I could not work out why this was only for murder and thought other offences should be included. I am sure there is a good explanation for this.
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Dr. Henry: I move amendment No. 79:
In page 13, line 17, to delete "the consultant psychiatrist" and substitute "the approved medical officer".
5 o'clock
I am at a loss to understand why the term "consultant psychiatrist" is used sometimes and the term "the approved medical officer" is used other times, when the approved medical officer is in fact a consultant psychiatrist within the meaning of the Mental Health Act 2001. Does this mean we are accepting, in the situations where the term "consultant psychiatrist" is written, someone who is not a person who is described as a consultant psychiatrist under the Mental Health Act 2001?
Mr. B. Lenihan: Yes, I am trying to assist the Senator.
Dr. Henry: I am sure the Minister of State has a good explanation for it but we were very careful about the definition of a consultant psychiatrist so that people from abroad could be used. I wonder why this change is in the Bill.
Mr. B. Lenihan: Senator Henry rightly says that an "approved medical officer" is defined as someone practising in the State because it imports the conditions set out in the definition of "consultant psychiatrist" in section 2 of the Mental Health Act 2001. Those conditions include a person who is employed by a health board or by an approved centre or whose name is entered in the division of psychiatry of the register of medical specialists maintained by the Medical Council in Ireland. Where the term "approved medical officer" is used in the Bill, it means a person who complies with all of these conditions. The term "consultant psychiatrist" on the other hand, is not defined for the purposes of the Bill, hence it does not carry with it any of the conditions I have mentioned. It is not so limited. It can mean a person practising in this field outside the State.
Dr. Henry: I presume this is to cover people who may come from abroad as witnesses.
Mr. B. Lenihan: Yes.
Dr. Henry: I have the message now. Could they be involved in tribunals?
Mr. B. Lenihan: That is dealt with separately. It does not affect the Mental Health Commission whatsoever. I refer to the body being established under this legislation. Government amendment No. 155 limits membership of that body to approved medical officers. Consultant psychiatrists, therefore, cannot obtain such an appointment.
Dr. Henry: I thank the Minister of State for his explanation.
Amendment, by leave, withdrawn.
Government amendment No. 80:
In page 13, line 18, to delete "and treatment" and substitute "or treatment".
Amendment agreed to.
Amendments Nos. 81 to 88, inclusive, not moved.
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Dr. Henry: I second the amendment. I have supported similar amendments in respect of this issue in other legislation because members of some Christian denominations believe it is wrong to swear on the Bible. It is time to re-examine the Interpretation Act in view of the incidence of people swearing on the Bible and subsequently being found to have told a pack of lies. It is difficult for those of who are practising Christians to see the Bible so debased. It may be more apt for people merely to affirm their intention to tell the truth.
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Dr. Henry: I move amendment No. 107:
In page 14, to delete lines 29 to 34.
This amendment arises as a consequence of my conviction that prison is an unsuitable place in which to treat those with psychiatric illness. I made my views plain on this point earlier.
Mr. Cummins: I second the amendment.
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Dr. Henry: I move amendment No. 137:
In page 16, between lines 36 and 37, to insert the following:
13.-(1) In relation to any person remanded into custody or sentenced to imprisonment, the Minister shall-
(a) have the power to give a transfer direction if he or she is satisfied by reports from two registered medical practitioners, one of whom is a consultant psychiatrist on the staff of the Central Mental Hospital, that the person is suffering from a mental disorder (within the meaning of the Mental Health Act 2001) and is in need of in-patient care and treatment in the Central Mental Hospital,
(b) in the case of all remanded prisoners, the court shall be informed of the making of this order and that the person has been transferred to the Central Mental Hospital,
(c) at the request of the clinical director of the Central Mental Hospital, the Governor of the prison from which the prisoner was transferred shall provide for transport and security for court appearances or other purposes,
(d) the person shall be detained in the Central Mental Hospital for treatment and shall have the same protections and rights as are contained in the Mental Health Act 2001,
(e) if the person is a prisoner who is on remand he or she shall be detained in the Central Mental Hospital until sentenced by the court, and
(f) if the person has been sentenced by the courts he or she shall be detained until the expiry of the sentence.
(2) In both cases the person shall be detained until the relevant consultant psychiatrist forms the opinion that the person is no longer in need of in-patient treatment or care at the designated centre and the consultant psychiatrist shall forthwith notify the Minister of this opinion; and
(3) Where the remanded or sentenced prisoner appeals successfully against his or her continued detention in the Central Mental Hospital to a Mental Health Tribunal, the Mental Health Tribunal shall forthwith notify the Minister of this decision and the Minister shall then order the return of the person to the prison from which that person was transferred."
This amendment represents an improvement on the present situation, which is quite unsatisfactory. There are some parts of the Bill that I do not like, because prisoners would not get treated sufficiently as patients, although there has is a big improvement in the provisions. Part 4 of the Mental Health Act 2001 will apply, which is important as it allows for consent to treatment. If a person goes voluntarily from a prison to the Central Mental Hospital but then does not agree to treatment, he or she can be sent back to prison. I do not know who decides whether the person is being unreasonable about their treatment. I have only seen the amendments recently.
Section 4 of the Mental Health Act allows people to refuse certain kinds of treatment, and I presume that would also apply under the Bill. I refer to electro-convulsive treatment, for example. It must not simply be a matter of a refusal of treatment. The prisoner - who becomes a patient, as I keep mentioning - must have preserved for him or her the rights that patients have under the Mental Health Act regarding treatment. That is probably the most important issue.
The Central Mental Hospital functions under the Department of Health and Children rather than the Department of Justice, Equality and Law Reform. I am sorry that more of the Mental Health Act 2001 does not apply to people when they are in different institutions. That has been a serious problem for a long time regarding the transfer of prisoners. The situation has been ridiculous, with people described as relevant officers - not medical officers - declaring that someone can go to court, where they are declared insane so that they can go on to some other institution. I am pleased about the provisions of the Mental Health Act that are being applied, but I would like the whole of the Act to be applied to people once they have become patients.
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Dr. Henry: It will apply. Will this section allow someone in prison for a minor offence to be transferred as an outpatient? Suppose a person has depression--
Mr. B. Lenihan: The earlier provisions cover that issue.
Dr. Henry: The earlier provisions will continue to apply here. That is important because one does not want to place people in institutions for treatment if they would be better off being treated as outpatients, just because they had been kicking milk bottles in the street because they had not taken their medication. That is good to hear. The Minister of State has gone a long way to try to solve what was an entirely unsatisfactory situation. Let us hope it will work in practice.
Mr. B. Lenihan: The Minister wished me to thank Senator Henry for raising this matter in the first instance.
Dr. Henry: I ask the Minister of State to send my thanks back to the Minister.
Amendment, by leave, withdrawn.
Bill reported without amendment.
Amendments Nos. 138 and 139 not moved.
Government amendment No. 140:
In page 17, line 14, after "Síochána" to insert "shall,".
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Dr. Henry: Is the Minister of State accepting amendment No. 141?
Mr. B. Lenihan: In substance.
Dr. Henry: I am glad of that. Some of these people may not be dangerous, others could be very dangerous. I do not like the idea of psychiatrists sending out the staff to round people up and arrest them.
Mr. B. Lenihan: The Minister is strengthening the role of gardaí but he is not entirely absolving the members of the centre. That is still there.
Dr. Henry: I understand that. If one examines the Mental Health Act, there is a provision - I am not quite sure where - that if people escape from the closed centre they were in members of that centre can search for them but those staff members should not be required to arrest someone. If that is what may happen under this Bill to get people back into hospital, that is fine but I do not like the idea of members of staff having to go and arrest anyone who may involuntarily leave a centre. Will this issue be examined again?
Mr. B. Lenihan: Under the Mental Health Act 2001 the clinical director may arrange for members of staff--
Dr. Henry: Which section?
Mr. B. Lenihan: I am referring to section 27 of the Mental Health Act. That is different legislation. The Garda Síochána is also given the power of arrest. The situation envisaged is that the officers or servants of a designated centre decide for themselves, having regard to any risks to their own safety, whether or not to carry out an arrest. Gardaí will have a positive obligation imposed upon them to arrest persons who may be unlawfully at large. That is not case under the Mental Health Act 2001. There is a stronger obligation imposed on the Garda Síochána under this legislation than under the 2001 Act.
Dr. Henry: Section 27(2) of the Mental Health Act 2001 states:
A member of the Garda Síochána may for the purposes of this section,
(a) enter if need be by force any dwelling or other premises where he or she has reasonable cause to believe that the patient may be, and
(b) take all reasonable measures necessary for the return of the patient to the approved centre including, where necessary, the detention or restraint of the patient.
Is that considered to be included in this legislation, in which case gardaí have less power? They cannot enter a premises.
Mr. B. Lenihan: Gardaí have that power under common law in any event.
Dr. Henry: Have they?
Amendment agreed to.
Amendment No. 141 not moved.
Government amendment No. 142:
In page 17, line 15, after "may" to insert ",".
Amendment agreed to.
Amendment No. 143 not moved.
Bill recommitted in respect of amendments Nos. 144 to 146, inclusive.
Government amendment No. 144:
In page 17, between lines 31 and 32, to insert the following:
14.(1) Where-
(a) a relevant officer certifies in writing that a prisoner is suffering from a mental disorder for which he or she cannot be afforded appropriate care or treatment within the prison in which the prisoner is detained, and
(b) the prisoner voluntarily consents to be transferred from the prison to a designated centre for the purpose of receiving care or treatment for the mental disorder,
then the Governor of the prison may direct in writing the transfer of the prisoner to any designated centre for that purpose.
(2) Where 2 or more relevant officers certify in writing that a prisoner is suffering from a mental disorder for which he or she cannot be afforded appropriate care or treatment within the prison in which the prisoner is detained, then the Governor of the prison may direct in writing the transfer of the prisoner to any designated centre for the purpose of the prisoner receiving care or treatment for the mental disorder notwithstanding that the prisoner is unwilling or unable to voluntarily consent to the transfer.
(3) The Governor of a prison who gives a direction under subsection (1) or (2) shall cause-
(a) the original of the direction to be sent to the clinical director of the designated centre to which the prisoner the subject of the direction is to be transferred,
(b) a copy of the direction to be given to the prisoner before the prisoner is transferred to the centre,
(c) a copy of the direction to be sent to the Minister, and
(d) where subsection (2) is applicable-
(i) the original of the certification concerned referred to in that subsection to accompany the original referred to in paragraph (a),
(ii) a copy of that certification to accompany the copy referred to in paragraph (b), and
(iii) a copy of that certification to accompany the copy referred to in paragraph (c).
(4) A direction under subsection (1) and (2) shall be sufficient authority to transfer the prisoner the subject of the direction from the prison in which the prisoner is detained to the designated centre specified in the direction.
(5) Where a prisoner who has been transferred to a designated centre pursuant to a direction under subsection (1) refuses to receive care or treatment there for a mental disorder, then-
(a) if 2 or more relevant officers certify in writing that the prisoner is suffering from a mental disorder for which the prisoner should remain in the centre for the purpose of the prisoner receiving care or treatment for the mental disorder, the prisoner shall continue to remain in the centre for that purpose,
(b) in any other case-
(i) the prisoner shall be transferred back to the prison from which he or she was transferred to the centre, or
(ii) the prisoner shall be transferred to such other prison as the Minister considers appropriate in all the circumstances of the case.
(6) Where subsection (5)(a) is applicable to a prisoner transferred to a designated centre, the clinical director of the centre shall cause
(a) a copy of the certification referred to in that subsection to be given to the prisoner as soon as is practicable after the statement has been made, and
(b) a copy of that certification to be sent to the Minister as soon as practicable after the statement has been made.
(7) Where a prisoner transferred to a designated centre pursuant to a direction under subsection (1) or (2) is required to appear in court, the prisoner may be transferred to and from court as so required.
(8) A prisoner transferred under this section-
(a) from a prison to a designated centre is deemed to be in lawful custody while being so transferred, while at the centre and while being transferred back to prison,
(b) from a designated centre to a court is deemed to be in lawful custody while being so transferred, while in court and while being transferred back to the centre,
(c) while being so transferred may be escorted by any members of the staff of the prison or centre, and
(d) while being so escorted by any such members is deemed to be in their lawful custody.
(9) In this section, 'relevant officer' means-
(a) an approved medical officer, or
(b) a person registered in the General Register of Medical Practitioners established under the Medical Practitioners Acts 1978 to 2002.".
Amendment agreed to.
Government amendment No. 145:
In page 17, between lines 31 and 32, to insert the following:
15. (1) Where a prisoner is detained in a designated centre pursuant to section 14, the Governor of the prison from which the prisoner was transferred to the centre shall, as soon as it is practicable to do so, give notice in writing to the clinical director of the centre of-
(a) the date, if known, on which the prisoner will cease to be a prisoner, and
(b) any change to such date.
(2) Nothing in this Act shall be construed as prohibiting or restricting, on and after the date on which a prisoner who is detained in a designated centre pursuant to section 14 ceases to be a prisoner, the voluntary or involuntary admission to or detention in any place of the former prisoner pursuant to the provisions of the Mental Health Act 2001 or any other enactment.
(3) Nothing in this Act shall be construed as prohibiting or restricting any steps being taken, before the date on which a prisoner who is detained in a designated centre pursuant to section 14 ceases to be a prisoner, to ascertain whether or not the prisoner should, on or after that date, be admitted or detained as mentioned in subsection (2).".
Amendment agreed to.
...
Dr. Henry: I move amendment No. 154:
In page 19, line 42, to delete "Insanity" and substitute "Mental Disorder".
Acting Chairman (Mr. Kitt): Due to a printing error, an asterisk appears before this amendment but it is not a Government amendment. Senator Tuffy's name was also omitted in error.
Dr. Henry: Does the Minister agree with the amendment?
Mr. B. Lenihan: No.
Acting Chairman: Is Senator Henry pressing the amendment?
Dr. Henry: I am disappointed. I thought the Government agreed with me on this, but now I find that the asterisk on the printed list of amendments is in the wrong place.
Acting Chairman: The amendment has already been discussed.
Dr. Henry: The Minister said that there would be a surprise later on in the Bill. I withdraw the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 155:
In page 20, line 7, to delete "consultant psychiatrist" and substitute "approved medical officer".
Amendment agreed to.
...
Dr. Henry: I thank the Minister and his officials for the way in which they have dealt with the Bill. I cannot say that I am happy with it. We had an opportunity to take a step forward in criminal law legislation but, in fact, this legislation could be 50 years old or more. The situation outlined in the Henchy report is much more forward-looking than anything in this Bill.
However, I am glad that Bill attempts to remedy the situation regarding the transfer of prisoners, because it has become a national disgrace and is ridiculous. I hope what has been inserted into the Bill will be effective.
The Bill outlines the law, but lawyers cannot stand alone. They need to have the assistance of other people to operate the law. My deep concern about the Bill is that it is going to be very difficult in some areas for those who want to operate the law properly for our patients. There is the possibility of hired guns emerging, people who would be delighted to give the courts the run around, which will be very disappointing if it does happen. The Minister, as a barrister, is aware that the desire to have long court cases is growing and I envisage some parts of this legislation adding to that.
I am very disappointed about care and treatment. They should not be separated and the Minister's arguments on this are weak. I had hoped that my practical suggestion of the mental health tribunals being upgraded with more lawyers might be accepted. The review boards are a good suggestion, but it would be better to have people who are working in practice, even if only with patients who have no criminal convictions and who are not dangerous. It takes some time to set up review boards and it is preferable to have an experienced group of people to call from, rather than to set up these de novo groups from time to time. However, I thank the Minister of State and his officials for their courtesy.
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