Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I understand perfectly the concerns of Senators. We are always under the impression that restraint is physical, but chemical restraint is much more subtle and, probably, far more effective. Apart from in this Bill, there are other areas that are protected in terms of chemical restraint. For example, HIQA always insists on reading patients' records to ensure that medication is appropriate for people and that the amount and frequency of medication administered is registered. This provision is always part of HIQA's reporting process. This is one of the mechanisms we have as a safeguard. Mention was made of Áras Attracta and that example shows we are human and things do go wrong. However, we must accept that the majority of people working in the care industry and medical professionals take this issue seriously and do not administer drugs that are of no benefit to the health of patients.

Amendments Nos. 5 and 245 would introduce a definition of chemical restraint into the Bill and would insert a new section stipulating that persons would not be authorised by this Bill to use chemical restraint. We are all in agreement that chemical restraint should be used as little as possible. I have already responded to this concern and this is not the first time it has been raised. I am sure the Senators proposing the amendment have been lobbied on this area. I have already responded to this concern through the amendments I introduced in the Dáil on Report Stage. I introduced an amendment which stipulates that chemical restraint can be used or authorised only by decision-making representatives or by attorneys. This is a significant safeguard. They can use chemical restraint only in very limited circumstances, where there is an exceptional emergency situation which involves an imminent risk of serious harm to the relevant person or to another person. The use of such restraint must be proportionate to the likelihood of harm. Where chemical restraint is used or authorised, decision-making representatives and attorneys must include details of the use of restraint in their reports to the director of the decision support service.

My amendments give the strong message that chemical restraint should be used only as an exceptional measure. They are focused on instances in which individuals take decisions on behalf of a person with capacity difficulties as that is the focus of this Bill. The Bill is not intended to address all issues that may affect vulnerable people. Both HIQA and the medical profession have a role to play also.

On the issue of chemical restraint more broadly, the position is that chemical restraint is not currently defined in health legislation although, as previously stated, a definition is given in the national policy on the use of restraint in designated centres for older people - nursing homes. Regulations on designated centres for older people require that restraint only be used in accordance with that policy.

The Mental Health Act requires rules for the use of restraint to be drawn up by the Mental Health Commission. Rules have been in place since 2009. The recent review of the Mental Health Act has recommended that revised mental health legislation should be broadened to include all forms of seclusion and restraint, similar to in the capacity legislation. The group was satisfied that the details of how such policy should operate is best left to be provided for in rules and guidelines, which are to be revised by the Mental Health Commission when primary legislation is revised. At this point, it is intended that secondary legislation should include a provision ensuring that approved centres are obliged by law to follow national policy where seclusion and restraint are concerned.

Detailed provisions regarding the use of chemical restraint and other types of restraint are best set down in national policies and underpinned by secondary legislation. This has the advantage of allowing for changes to be made, such as to improve safeguards, without the necessity of having to amend primary legislation. For this reason, while I sympathise with what the Senators are seeking to achieve and have considered the issues, I cannot accept the amendments. Again, we have included safeguards in this Bill in the context of who can authorise the administration of drugs and a reporting mechanism that should provide greater protection. There are times when that protection is needed.

The Mental Health Commission is also very active in this area. It is the HIQA of mental health services. In the context of older people and disability, HIQA is equally active in this area. I believe we have sufficient safeguards in the Bill and further agreed definitions will be introduced in the revised Mental Health Act.