Oireachtas Joint and Select Committees
Tuesday, 25 May 2021
Joint Oireachtas Committee on Health
Impact of Covid-19 on Human Rights and Mental Health: Discussion
I welcome the witnesses to our meeting, the purpose of which is to discuss the impact of Covid-19 emergency powers on fundamental rights and mental health well-being. From the Mental Health Reform, we have Ms Fiona Coyle, CEO, and Ms Audry Deane, policy and research adviser. From the Irish Council for Civil Liberties, ICCL, we have Mr. Liam Herrick, executive director, and Ms Doireann Ansbro, senior research and policy officer.
Before we hear their opening statements, I need to point out to our witnesses that there is uncertainty as to whether parliamentary privilege will apply to evidence given from a location outside the parliamentary precincts of Leinster House. If, therefore, they are directed by me to cease giving evidence on a particular matter, they must respect that direction.
Ms Coyle has five minutes to make her opening remarks. She is very welcome.
Ms Fiona Coyle:
Gabhaim buíochas leis an gCathaoirleach agus baill an choiste as an gcuireadh theacht in bhur láthair inniu.
Covid-19 is a mental health and physical health emergency. The virus has brought about anxiety in the general population, while public health restrictions and the sudden contraction in our social scope brought isolation and loneliness. Our personal networks and formal support systems were wiped away. The ingrained thinking in Ireland is that mental health is hidden out of sight. It is fringed on the edges of our understanding of what health and well-being is. This binary thinking is long out of date. The pandemic has demonstrated-----
Mr. Liam Herrick:
I thank the Chairman. On my behalf and on that of the ICCL and my colleague, Ms Ansbro, I thank the committee for inviting us to present before it today.
Over the past 14 months, ICCL has made detailed submissions on all aspects of the Government response to Covid-19, articulating the view that human rights must be protected in dealing with this great social challenge. The powers created by the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 and, indeed, by other Covid-19 legislation are extraordinary. They permit the Minister for Health to make regulations that impose significant limitations on all aspects of our fundamental rights. The powers supersede the role of the Oireachtas to scrutinise and debate laws and allow the Minister to designate certain public health matters, which are basic aspects of ordinary life, to be penal provisions, drawing the police and criminal justice system into ordinary daily life. While many of the regulations have been clear and had an understandable purpose, on some occasions, the failure to carry out a human rights impact assessment and consult with the Oireachtas and other stakeholders, has led to disproportionate interference. The ICCL is concerned by what is before the House this week and what is proposed by the Minister for Health and the Government.
The situation now is vastly different to the situation in March 2020. At that time, it was unclear if the Oireachtas would be able to sit to consider and pass legislation. The primary role for making regulations was transferred, on a temporary basis, to the Minister for Justice. If, however, the Government is asserting that this extraordinary ministerial power needs to continue, and that the Oireachtas should continue to be excluded from scrutinising and considering legislation in this area, at the very least, the Minister should be putting forward evidence of that ongoing necessity and demonstrating that he and his Department have carried out a review of the exercise of these powers over the last 14 months. This is not about whether the pandemic is over or whether restrictions might still be necessary, it is about whether the Oireachtas will have any role in considering the content of those regulations.
Even it is accepted that some ministerial powers need to be retained in this area, we should at the very least be learning from the experience of the last 14 months. There is no evidence that the Minister or the Department have reflected on the recommendations that have been made by the Oireachtas Special Committee on Covid-19 Response, the Irish Human Rights and Equality Commission, IHREC, the Trinity College Dublin Covid Observatory, or indeed, ourselves in ICCL, which have consistently made recommendations on how the ministerial powers might be better supervised and the Oireachtas might have a role in consultation and scrutiny over the regulations.
Even if the powers are to be retained and extended, we must now consider when temporary measures cease to be temporary. What is proposed before the Oireachtas this week in terms of a renewal and sunset clause will further marginalise the Oireachtas. As was pointed out in the Seanad yesterday, this is not about an extension only until November. This is the possibility of further subsequent extensions beyond that. We believe there should now be an ultimate sunset clause by which all ministerial powers in this area will cease. The mechanism that is proposed for further extension will require only a resolution of the Oireachtas to add a further three months beyond November. At a minimum, there must be a requirement that a technical report be laid before the Houses and that there be a substantive debate.
In light of the fact that the Government has not in any way modified the powers that have been in place since March 2020, we are deeply concerned about an extension to November. At the very same time as the Government is saying that business and society are returning to normal and international travel is coming back, it is extending these powers until November and potentially indefinitely beyond that.
The ICCL considers the upcoming end date for the emergency legislation on 9 June as a moment requiring extensive review of these extraordinary powers. Next week, the ICCL will publish a detailed report in conjunction with the Community Foundation for Ireland on all of the pandemic's impacts on human rights thus far. The Government has had the opportunity to consider the research that has been done and reflect on the experience of the policing of these regulations, yet it is not reflecting any such review in what is before the Oireachtas this week. We call on the Oireachtas to reassert its role and authority as the primary lawmaker in the State and its role in overseeing executive power. We would caution it not to allow such an extreme extension of powers without any modification or oversight.
Ms Fiona Coyle:
Covid has impacted on our personal networks and formal support systems have been wiped out. The ingrained thinking in Ireland is that mental health is hidden out of sight and it is fringed on the edges of our understanding of what health and well-being are. This binary thinking is long out of date. The pandemic has demonstrated how physical and mental health are inextricably linked to one other and to our well-being.
In late 2020, RTÉ commissioned important research, entitled The Next Normal, to better understand the effects of the pandemic. Mental health, which had previously not featured, emerged as the fourth most important issue facing Ireland. Research demonstrates decreased psychological well-being and increased anxiety, depression and stress as common psychological reactions. In an Irish context, a March 2021 Amárach poll carried out for the Department of Health reported 36% of people reporting stress, 36% reporting frustration, 29% reporting sadness and 24% reporting loneliness. These were the highest levels since the survey began.
Mental health is a dominant theme because it is a sharp reality. Research shows that different groups have different risk factors for Covid-19. People with pre-existing mental health difficulties, health care workers, women, young people, people in precarious work, those who are homeless and ethnic minority groups are more likely to be negatively impacted by Covid-19. When it comes to the effects of the pandemic on mental health, we are not all in this together.
Our member organisations, several of whom have appeared before the Oireachtas Sub-Committee on Mental Health, have witnessed an increase in those seeking support. Our mental health system was and is not capable of coping with a surge. It was struggling and close to breaking point long before the pandemic hit. When the tide went out on physical health, the inadequacies of our mental health services were brutally exposed. Deficits include inadequate staffing, ICT shortfalls and insufficient access to services. Covid-19 underlines the need to reconfigure mental health services. We must put service users at the centre of design and delivery.
The Emergency Measures in the Public Interest (Covid-19) Act 2020 has had an impact on those with mental health difficulties who are involuntarily detained under the Mental Health Act 2001, as Part 5 of the 2020 Act relates to the 2001 Act. Mental Health Reform notes that all efforts are and have been made by the Mental Health Commission to ensure the minimum impact on the procedural rights of service users. However, the legislation in itself continues to be problematic in its removal of safeguards for service users and its infringements of service users' rights, including rights under the UN Convention on the Rights of Persons with Disabilities, for example, the right to a tribunal. In particular, the legislation presents difficulties in some cases for individuals' ability to tell their stories and have their voices heard. Due to the considerable time these emergency measures have been in place and the progress made on vaccinations, we believe that the measures contained in Part 5 are no longer necessary. Ireland is in a different place to when this legislation was first enacted.
Ireland urgently requires a mental health service that can meet the challenges of the pandemic and its aftermath. The future of mental health services in Ireland will be shaped by the political action taken now. We urge the Government to resource, rebuild and reform our services. In particular, the Government must review and repeal Part 5 of the 2020 Act to strike a better balance between the need to protect people from Covid-19 and the protection of human rights for those under the Act. We must also address other human rights gaps by urgently reforming Ireland's Mental Health Act and publishing the draft legislation to update that Act in order to support planning for mental health services towards the future, reassure people and restore confidence that mental health services will protect their rights. We must substantially increase investment in our mental health services and supports to address the challenges of the pandemic and its aftermath and become resilient against future public health crises.
Covid-19 has laid bare the inadequacy of our mental health services and their peripheral position within the health system as a whole. The pandemic has offered a non-negotiable opportunity to resource, rebuild and resource our mental health services. We cannot go back to a broken system. Now more than ever, we need a fit-for-purpose, responsive and adequate mental health system in which people can access the care they need when they need it.
Our first questioner will be Deputy Durkan. For the benefit of the witnesses, his ten minutes will include their answers. I am being told that we will be cut off at 1.30 p.m., which means that no leeway can be shown for the meeting going over time.
I welcome the witnesses and thank them for their participation. This is an issue on which we have all received a considerable amount of correspondence recently. The questions that arise for me are about balance and whether the sunset clause is adequate protection in terms of civil liberties or needs to be reviewed or revoked. It is about weighing up the balance between civil liberties and the risk of Covid-19 reviving itself and surging again.
Anyone can answer my question. To what extent do the witnesses believe that it would be wise to relax the regulations in favour of civil liberties or any other reason, given the ravages of Covid in places like India or our nearest neighbour, the UK, where there appear to be intermittent surges that are likely to keep recurring?
Mr. Liam Herrick:
I thank the Deputy. As far as we are concerned, this is not a question of whether specific restrictions may or may not be needed in the coming months. There is no doubt that the pandemic is not over and there is an ongoing threat. Rather, the question for us is whether the Oireachtas wants to allow the Minister for Health to retain unlimited power to make regulations without consulting it or whether it will reassert its role in scrutinising and being consulted on the introduction of those restrictions.
The recommendations of the Oireachtas Special Committee on Covid-19 Response refer to the Minister being obliged to lay regulations before the House and such regulations lapsing if they are not approved by the Houses. The same recommendations were made by the Irish Human Rights and Equality Commission, IHREC, and, indeed, by ourselves and the Trinity College Dublin Covid observatory. We have always supported the need for certain restrictions and we recognise that there is an ongoing public health challenge. We believe, however, it is essential for our democracy that the Oireachtas has the primary function. Now that the Oireachtas is fully and effectively functioning and is able to sit, and committees such as this are able to meet, we do not see any justification for the Minister to retain the unlimited power he has had since March 2020.
The Oireachtas is not fully functioning at present, as we all know. It is sitting to a limited extent in two different venues and committees are also meeting in separate venues. It is not, therefore, fully functioning. Mr. Herrick is thinking - perhaps I am wrong on this - that in a minority Government situation, such as that which prevailed in respect of the previous Government, it was possible for the Oireachtas to take the initiative because it was the Government and the Government was the Opposition and could only move forward with the permission of the Oireachtas. That is not the way it works under our system. If anybody can initiate, it is the Executive which has the power to do so. The prospect of legislation being passed is very limited unless it has the imprimatur of the Executive, which is the Government. That is our system and the system in most other European countries.
I am a bit concerned that we might be at cross purposes. If I were asked today to make a decision to relax the regulations in line with what would appear to be the thinking of the ICCL, I would be concerned that in the course of the next three or four months, there would be an upsurge in the virus. As a result, the finger would rightly be pointed at those in the Oireachtas or in the Government who allowed that to happen by way of relaxation of restrictions.
Mr. Liam Herrick:
I thank the Deputy again for the comments. As I said, if one looks at what was recommended by the Oireachtas Special Committee on Covid-19 Response, it was not saying that the Minister should not be in a position to make regulations to respond to urgent and immediate changes in the circumstances.
With respect, I was a member of that committee. It could honestly be said that the committee made every argument for and against; every possible option was covered. We went down the road of increasing restrictions, relaxing the regulations, opening up air travel and so forth. There were equally held views, for and against, on both sides.
Mr. Liam Herrick:
I can only go on what the final report of the committee recommended, which was a simple proposal that the Minister should continue to be in a position to put forward and sign regulations but that they should be laid before the Oireachtas and would lapse after a period if they were not approved.
We might also look at simple recommendations from the Trinity College Dublin Covid observatory, for example, that there should, at a minimum, be consultation with the Oireachtas before new legislation was introduced and that the Minister should be under an obligation to at least publish regulations before they came into effect. As members of the committee will know, over the past 14 months, we have seen on a number of occasions that regulations have been signed into effect by the Minister for Health and were not even been made public, which is clearly an infringement on the rule of law.
These are simple and quite modest recommendations that have been made to Government over the past year on having better practice in terms of respect for the rule of law. It is very disappointing that the Minister and the Government do not seem to have reflected on any of these recommendations. The Government has not put forward any review to the Oireachtas when it is looking for this extension of powers. Certainly, if we go back to March 2020 when the legislation was first enacted and passed by both Houses then signed into law by the President, it was clear to everybody at that stage that if there were to be subsequent renewals, there would be an opportunity for the Oireachtas to have a meaningful debate with meaningful reviews put before it. That did not happen in October 2020 and it clearly is not happening now.
There is a sunset clause, however, which lays down specifically the expiry date of the regulations. It then follows that the Minister and the Government must make a decision. That decision must be based on balance and whether the regulations in place are required to be extended for a specific period. There may be only one extension and then a full debate on the situation would be needed again or whatever. The question remains with the Minister. The Government has the responsibility to protect public health. The responsibility of the Minister is whether adequate provision has been made to protect public health in all circumstances that might prevail over the next two, three or six months or whatever the case may be. Is that not true?
Mr. Liam Herrick:
Before the Oireachtas this week is a proposal that this power be extended to November of this year, and that there will be no role for the Oireachtas with regard to regulations between now and then. It is also proposed that after November, it can be extended for a further three months, indefinitely, by simple resolution of both Houses of the Oireachtas, without any subsequent debate. That is our understanding.
That is in the event that it may be necessary, in the opinion of the Department of Health, the Minister and the Government, to extend the power to protect public health. On the other hand, it may not be necessary. The question that arises insofar as I am concerned is whether we are satisfied that we will have suppressed the virus by the end of October or the beginning of November. I am not so sure. There could be a further surge of which I have no knowledge. I have no way of predicting whether that will happen at present.
Mr. Liam Herrick:
From our perspective, the question is perhaps slightly different. The question is whether the Oireachtas - the Dáil and the Seanad - is satisfied that it will have no role in being consulted on the content of regulations and no role to oversee or scrutinise those regulations for the period until November, and potentially beyond, by further resolution.
I know I am coming to the end of it. This will be my final intervention. Should it transpire that there is an imminent surge as we progress over the next two or three months, are we to say that we will debate this for a month or whatever the case may be, which could be seen by some people as a delaying tactic, or do we do something about it and leave the regulations?
Incidentally, I should mention that I was Ireland's representative at the European Convention on Human Rights and worked on the drafting of the EU Charter of Fundamental Rights. I have, therefore, discussed this type of issue previously. I do not want people to think - we have sometimes referred to it - of Fine Gael as being a right-wing party and so forth. I am coming at it from a different perspective altogether.
That is correct. I would never dare to accuse Fine Gael of being a right-wing party. I welcome the witnesses. I have five minutes for my contribution. I will deal with the ICCL and my colleague, Deputy Ward, will put questions to the Mental Health Reform later. We broke our questions up into two sections.
I will first make a number of points to Mr. Herrick by way of observation. I want to be fair to his organisation in order that his position is not mischaracterised. Mr. Herrick is not saying that there is no need for public health measures. He is saying there needs to be proper democratic oversight and that the extraordinary powers, which the Minister gets from this and future legislation or by extending the sunset clauses, are extraordinary and draconian. Furthermore, they give the Minister power to make regulations, which can themselves be very draconian, and those regulations are not subject to any democratic oversight or scrutiny. Essentially, is that Mr. Herrick's concern?
Mr. Liam Herrick:
I thank the Deputy. We are fully supportive of the public health effort and have supported a wide range of the regulations that were introduced over the past 14 months. We fully support the vaccine programme, in the context of which the Government must be congratulated on the great success it is having in promoting public support.
Many of the regulations that have been introduced have been reasonable and proportionate and some have not.
What we have seen on many occasions is that regulations have been introduced which have either contained errors or had unintended consequences which would have been avoided if the Oireachtas had been given a greater role in scrutiny at an earlier point in time. We have seen much good practice and fully acknowledge the Government is acting in good faith in dealing with a grave public health crisis but the Deputy fairly summarises our perspective that for us the question is ultimately about democratic oversight.
What Mr. Herrick is saying is there must be fairness and proportionality. He obviously recognises there is a public health emergency and of course there must be public health responses that include restrictions. That fairness and proportionality is important and also that democratic scrutiny is important because if we do not have that, mistakes can be made. Mr. Herrick said there were unintended consequences in some areas. Perhaps he can expand on that. He might spell out what areas he is talking about.
I have a secondary question. I am not saying Mr. Herrick is saying this but I agree with his analysis that there must be proper scrutiny of the effectiveness of the existing legislation; that makes perfect sense. We must be reviewing all the different elements of that emergency legislation and all the regulations to see what worked, what has not worked and what unintended consequences may have flowed from all of them. As Mr. Herrick mentioned unintended consequences in some areas, he might be able to help the committee by explaining what those are. Has he seen any abuses by any State agencies in relation to the restrictions and the public measures, or is it more a matter of unintended consequences, just for the purposes of clarity?
Mr. Liam Herrick:
It is fair to say we are more concerned with the unintended consequences. We had the opportunity to take part in a conference in New York yesterday with representatives from civil society all over the world. We heard about how some countries had taken advantage of the crisis to suppress civil society, trade unions or journalists and of course that has not been the case here.
What we have seen is that some of the regulations have had unintended consequences. An example of this is the regulations on food in restaurants and public houses which drew the police into monitoring what people had eaten, which was clearly unintended. Another example is the regulations which regulated house parties which engaged with constitutional problems about the private home. There were also regulations on public events which did not fully take into account the right to strike and the right to protest, or indeed the right of people to take part in religious observance. These were all issues that could have been teased out if there had been greater consultation.
From our point of view it is of course for the Government to restrict certain rights during a public health crisis but it must do so within the law and must do so with respect to principles of necessity and proportionality. On some occasions that has not happened. We saw this again most recently with the mandatory hotel quarantine, where the rushed nature of the regulations meant it was not able to take into account humanitarian circumstances for some of the people who might be subject to it. Therefore, there are many ways in which the Oireachtas could help to safeguard against disproportionate introduction of powers.
I will just make one final 20 second contribution. I thank Mr. Herrick and the other witnesses for their responses. I agree with everything he said. He has been very reasonable with respect to the asks the ICCL has put forward. If the Government or the Minister do accept any of the amendments that look for a review by the Department of the effectiveness of the measures, as part of the Bill that extends the sunset clause to November, maybe there is a role for the committee in doing a review ourselves. We should not have to and hopefully the Minister will accept some of the amendments, but it is a reasonable ask to look for a review of the effectiveness. We will also be tabling amendments to that Bill which we cannot go into today but we will be having a Dáil debate on it in due course. I again thank the witnesses.
I thank the Chairman and thank our visitors for their presentations. I have a question for Mr. Herrick first of all. One of the areas about which he expressed concern, which I think we share, was the lack of clarity of the message by the Government. An example of that is obviously many older people thinking the advice to cocoon was legally underpinned and many were afraid to leave their homes for many months. Has Mr. Herrick come across other areas where there was public uncertainty or confusion about which public health measures were underpinned by law and which were just advisory?
Mr. Liam Herrick:
The Deputy is correct to raise the issue of cocooning. The other area which members will be familiar with was the restrictions on movement and how it was presented by members of the Government and indeed other public officials, particularly regarding the so-called 5 km limit on movement. It was suggested by many people that individuals were limited to a 5 km radius during that time when in fact, the 5 km only related specifically to the reasonable excuse of exercise. Whereas these are significant problems about the Government being unclear about what the law is, a lot of credit must go to An Garda Síochána for the common sense and discretion with which it exercised these powers and the leadership it showed in not wishing to overreach powers which were in many respects drawn very broadly. However, it not satisfactory on an ongoing basis that we would continue to rely on the discretion and judgment of An Garda Síochána with regard to regulations which are very broadly drafted. We are now surely at a critical point where most of the restrictions are being lifted and on one hand Government is saying it does not intend to reintroduce them while on the other, it is retaining this extremely broad power for the Minister for Health to legislate without consultation with Parliament.
I thank Mr. Herrick. Has he heard any reports of any of these emergency powers impacting on disadvantaged groups to a greater extent than on the general public? Is there any experience of that?
Mr. Liam Herrick:
There is. There also have been instances where State agencies have responded positively to that information when it has arisen, particularly with regard to issues such as domestic violence and the recognised phenomenon that women and families who are victims of such violence are especially vulnerable. There have been special measures put in place. Also with regard to vulnerable groups such as the Traveller and Roma communities, there are instances where public health agencies have taken special measures. However, these have tended to be reactive and relied on the initiative of particular agencies. What has not happened is that Government has not taken on board a more comprehensive analysis of the human rights impact to try to proactively identify some of these groups. In Dublin we have seen very positive measures with regard to the street homeless population and those living with addiction to drugs and alcohol, but they have not necessarily been translated across the country. Of course, we know everybody is operating in a short timeframe and dealing with a new crisis but after 14 months the least we might have expected is that the Government would carry out a comprehensive analysis of what we can learn from the impact on human rights of this pandemic during this period of time.
Mr. Herrick's point is very well made. My final question relates to the need for a review. What, in the ICCL's view, would be the best mechanism, organisation or body to carry out that review?
Mr. Liam Herrick:
We think it was disappointing the Special Committee on Covid-19 Response ceased its operation at what was a relatively early point in the crisis. It did some excellent work. We have had recommendations from IHREC that there be a special human rights and diversity committee which might have an ongoing function to carry out that work. Others have made recommendations that each operative joint Oireachtas committee would be considering regulations in their respective areas, be that justice, education or health. Thus there are a number of different options there and it is disappointing none of them seem to have been taken up. We heard from Ms Coyle from Mental Health Reform about the specific impact in one particular area.
The ICCL fully supports and endorses this impact on one of the most vulnerable sections of our population. It is disappointing that the health committee has not been given the opportunity to consider how the mental health tribunals operate. That is an obvious example of where the Oireachtas could play a role.
I feel strongly there is an opportunity now in the six weeks or so left to us prior to the summer recess for a good timeframe in which such a review could be carried out, with the Oireachtas considering the outcome of that review prior to the summer recess. Otherwise we will run into a position where the legislation will be going forward until November. I take on board the points made by the witness and thank him for his advice on the matter.
Good afternoon everyone. I will ask my questions and the witnesses may respond as they prefer. Before doing so, I reiterate the point made by Mr. Herrick that An Garda Síochána has been asked to walk a tightrope in the past year and has done so quite well but this is not a great long-term solution, as it puts much pressure on the force.
In the submissions today we have heard much about democratic scrutiny and some of the requests concern comprehensive analysis, technical reports and a substantive debate in the Dáil. I personally support all of those. I have a frustration that is not necessarily just around Covid-19 and I could make the same criticism with regard to budgets. Ultimately, we have a majoritarian Government and there is little we can do to constrain its decision making because of that majority. The witnesses have suggested the creation of a Covid-19 or human rights committee as a way of directly making recommendations to a given Minister. Are there examples in other jurisdictions where they do this better and it is a more collaborative decision-making process around Covid-19?
The witnesses also said this is not necessarily about the pandemic or the particular health advice in a given moment. Throughout this year I have been kind of keeping an eye on what various civil liberty groups are saying. The quality of that advice or interaction has changed. A letter went out in January on the quarantine matter. There is a requirement for the groups before us to navigate the health advice but I am interested in seeing if they could expand not necessarily on the quality of the advice but the method or way in which those giving health advice interact with the Government and these groups and how challenging that is.
I will be a bit selfish now as some of the emails I get most commonly now are from campaigns that rail against any of the constraints that the pandemic has brought. I am loath to say the groups contacting me are coming from the far right but it is certainly a position where they think Covid-19 does not really exist or that vaccines are a tyranny and imposition. How do the witnesses believe we could progress the discussion around civil liberties and return to constitutionally protected civil liberties in the way we are more used to them? I speak with regard to the discussion being co-opted by groups in an earnest way.
Mr. Liam Herrick:
I thank the Deputy for three very substantive questions. The first relates to whether there might be other models of decision-making and collaboration. The ICCL submission to the Oireachtas Special Committee on Covid-19 Response, which was reflected in other submissions, looked at some other jurisdictions. In New Zealand, for example, regulations introduced because of Covid-19 must be approved by a resolution of its Parliament or house of representatives. That is in clear contrast with what we have here.
On the question of a broader system of public health advice, we have also indicated that we support the work of the National Public Health Emergency Team, NPHET. It is excellent work from a public health expert body that identifies questions relating to epidemiology. There is also the question of how restrictions might affect different sections of the population. We have suggested that the Government could construct another expert committee that might look at the wider economic and social impacts as another source of information to inform its decision. That has not been taken up. What we have had instead is it falling to the Cabinet to have that balancing perspective. The Cabinet clearly operates on the principle of confidentiality and its deliberations are not transparent and in public.
Again, in other jurisdictions we have seen broader-based expert bodies informing the Government and the deliberations of those bodies being carried out, sometimes even on national television or in a transparent and public way. There are ways in which we could make it easier for ourselves as a country by having better decision-making processes that are more open and transparent.
The Deputy raised a question about groups that may be critical of regulations but perhaps may have different objectives and it is certainly challenging for us. This comes into sharp relief on matters such as freedom of expression and the right to protest. The ICCL has consistently stated that the right to protest is an absolutely fundamental constitutional right. It would be preferable if the Government could set guidelines on how people can continue to express themselves and have the right to protest but also have some respect for the safety of others. There may be temporary rules about wearing masks in protests, social distancing or even the numbers involved with protests. It would be preferable to allow people to express their views in a safe way, even if we may not agree with them, instead of effectively having a blanket ban on protests. That would again create a risk that the Garda would have to distinguish between different protesting groups, which is not desirable.
We should of course respect everybody's freedom of opinion and belief but there must be some respect for the rights to health and life of others as well. We can do that and it would be preferable to allow people to protest safely than to prohibit protests completely, which has been the case, unfortunately, in some periods over the past year.
Ms Fiona Coyle:
I will make a brief comment on the mental health side. The specific area of the emergency legislation we are concerned about is Part 5. It is a good example. It was introduced at an unprecedented time and legislation was needed to ensure that physical tribunals could take place remotely. We are in a very different place now and we have learned much. Much of what is contained in that Part 5 was not acted upon. For example, we know that since March last year all the mental health tribunals have been seen by three persons, although the Act has a provision to use one-person tribunals.
Much of what is in there is no longer relevant because we have shown over the past year and a bit that we can adapt and put better procedures in place that could be more responsive to people's rights. We really need a debate on that and a discussion of when this amending legislation no longer needs to be in place or necessary. Part 5 of that legislation is a good example of where a discussion could be had. It is not ideal that people's rights are not being adequately protected under the legislation but we know what is happening in reality. There may not be a need for those provisions to be in place any longer.
On the Deputy's final question, there is much discussion and discourse around mental health and the impact of the pandemic and restrictions on such health. We are really concerned about the supports and services that must be in place. The emerging research is not clear on the impact on mental health.
We know that some groups have been more impacted upon than others, but what we need to plan for and put in place involves ensuring that support is available. That is fundamental. We need to acknowledge that this is primarily a physical health pandemic but that mental health is a major factor. We need to strike a balance between both.
I thank the witnesses. I have a number of questions. Most of us will agree that some of the legislation enacted was necessary while some is extremely draconian. In normal times it would not have been enacted, but we live in extraordinary times. Sometimes extraordinary measures are needed. The question is whether the extraordinary powers the Government has should continue. The Bill currently going through the Oireachtas is a matter of concern. The right to assembly is fundamental to any democracy. The Bill stipulates that the right to assembly be limited to no more than 15 people. That provision could continue indefinitely, even after 9 November. This is a cause for concern, regardless of what side one is on. How could the Bill be exploited, that is, how could it have unintended consequences in the months following enactment?
Mr. Liam Herrick:
It is worth reflecting that when the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act was passed by the Oireachtas in March 2020, the Government initially proposed that it should have the power to extend the period of the legislation indefinitely without coming back to the Oireachtas. It was only after amendments were proposed by Members of the Oireachtas, and following suggestions from the ICCL and others, that the sunset clause was introduced.
It was originally envisaged that there might be one renewal in October 2020 until June 2021. What is now being proposed will further marginalise the role of the Oireachtas and further centralise the power of the Minister. In the first instance, the Minister will not be required to come back before the Oireachtas until November, an extended period during which, we understand, the vast majority of the population will have been vaccinated, international travel will have restarted and so on. Thereafter, it will, as Deputy Hourigan noted, only require a simple resolution to continue to extend the law beyond that point. There will not be a debate. There will just be votes in both Houses of the Oireachtas, which is a weaker protection that exists at this point. We see this as a further marginalisation of the role of the Oireachtas. It calls into question whether what was clearly envisaged as a temporary measure for a certain period of time is now being extended beyond that. The danger is that there might always be some risk or case for retaining extraordinary ministerial power. The Minister might always be able to point to some ongoing public health risk, but the onus and the threshold should be greater and higher than at present.
Surely there is a contradiction in that most of the economy will have reopened in the next couple of months while at the same time we will have the juxtaposition of certain civil liberties being completely curtailed. It is quite concerning. The emergency powers could continue indefinitely. I refer to the international experience of other governments that have installed emergency powers. What has been the experience of less autocratic countries when emergency powers past to curtail-----
Mr. Liam Herrick:
: Obviously, countries all over the world have had to grapple with the same problems. There is a category of countries that have exploited the crisis to shut down the opposition and civil society. We have seen that in parts of the developing world and in Europe. There are countries such as Ireland that have done their best to balance rights. As I said earlier, the fact that the police have used discretion here has avoided some of the extremities we have seen in other jurisdictions. At the same time, countries like New Zealand, Australia and others have built in a better role for parliament and bodies like national human rights institutions in their decision-making processes. I would not say that Ireland is in a negative category. Rather, we have not availed of all of the tools at our disposal. We can see other examples of jurisdictions that have built in better democratic protections at all stages. The opportunity is there for the Oireachtas to try to reinsert itself into the process, which would greatly assist us.
I thank the witnesses for their presentations. Looking back over the past 14 months, are there any regulations the witnesses would not have put in place or that they feel were totally unnecessary? My second question concerns the announcement of changes. When new regulations came into place was sufficient time given for people to become aware of the change that would occur, such as, for example, where a change was made after 6 p.m. and came into force the following day or at midnight? Are the witnesses of the view that there should have been better communication about the timeframe in which a new set of rules comes into place?
I refer to the challenge in the context of mental health. Is there now a problem with getting people to work in the area? Will there be challenges over the next four years in getting a sufficient number of people to work in the area?
Ms Doireann Ansbro:
I thank the Deputy for his questions. In terms of what regulations we would have said were not necessary over the past 14 months, one of the key points we have tried to make over the period is that we need a human rights impact assessment to properly assess what regulations were necessary and those that may not have been and which did and did not constitute a proportionate interference with our rights. That is still outstanding. We have not seen a proper human rights impact assessment and it is something we think is necessary before we can properly assess whether we should have those regulations in place and whether we need to continue to renew the legislation that allows further regulation to be made in the future.
We have carried out some assessment of a number of rights and interference with rights over the past 14 or 15 months. Some of the elements that we had issues with from a rights perspective where the fact that when regulations were put in place, there were blanket bans on rights. At certain levels, there was a blanket ban on, for example, events and certain gatherings. Looking at other jurisdictions, we saw the constitutional court in Germany say that a blanket ban on protests was disproportionate and constituted a disproportionate interference.
When our regulations gave rise to the blanket ban on gatherings, we would have said that was disproportionate. We have constantly called for an exemption for the exercise of fundamental rights, including the right to protest, to be constitutionally reasonable if it seems to be done in a small safe manner. We were not saying that normal protests should have been allowed. Small, safe protests should have been allowed, however, given the fundamental importance of those to our democracy, particularly at a time when so many decisions impacting on lives and livelihoods were being made.
We also thought that there could have been a more targeted approach to restrictions on movement. The primary legislation gave the Minister the opportunity to designate affected areas. One of the fundamental principles here is that any decision to impact rights must correspond to good data and evidence of risk. We think that could have been done in a more targeted manner using the affected areas possibility.
We also thought that there were times when the regulations relating to criminal sanctions might have constituted a disproportionate penalty for the exercise of rights. We saw a significant expansion of powers for An Garda Síochána in terms of inspections, closure orders for various establishments and fines for the exercise of fundamental rights. Not only did we see the introduction of fines, we then saw legislation increasing the possibility of those fines. We do not think there should ever be criminal sanctions for the exercise of rights and that enforcement of public health guidelines should be done through proper communication and targeted supports. In respect of having regulations that are not clear, which has been identified as an issue not just by us but by the Oireachtas Special Committee on Covid-19 Response, the Policing Authority and IHREC, there were times when regulations were made in a way that was not clearly communicated. There were very subtle changes. There was no clarity among the population about what was law and what were guidelines. We then had the enforcement of issues that were not clearly communicated to the population using criminal sanctions. This has been identified as a major issue by us and IHREC. In terms of the changes, not only was there a need for better communication, there was a need for better consultation with human rights experts both as the regulations were being drafted and in assessing the impact of the regulations on us. There should have been better consultation in advance with Oireachtas committees and human rights experts like IHREC and better oversight and approval by the Oireachtas. IHREC recommended that ten days following the publication of each regulation, it should be approved by the Oireachtas, a call we support.
Ms Fiona Coyle:
I will respond very quickly and we can follow up in writing afterwards. The Deputy is completely right. Our mental health services are primarily delivered by people. It is a people-based service. Staffing was an issue before the pandemic. In 2019, there were fewer staff in the mental health services than there were before the recession despite a 10% increase in the Irish population. In the 2020 service plan, staff numbers were 20% below recommended levels. There was an increase between 2019 to 2020, which indicates some progress. However, staffing and recruitment of staff continue to be a barrier to delivering a really effective mental health service. I know the Deputy is out of time but I am happy to follow up with more detail in writing afterwards.
I thank the witnesses for their presentations. I agree that it is really disappointing that there has been so little time for debate on this. I feel it has been designed so that we just have statements in the Seanad with no time for proper analysis. I am watching Committee Stage proceedings on the screen above me. I am pushed on my multitasking but we only have an hour to debate the amendments. This is designed to not even let us get through them, which is a disgrace. It is undemocratic and is designed to stifle any form of meaningful scrutiny or engagement. I raised my concerns yesterday about the running order, with amendments being due before briefings and us not seeing the amendments until after Second Stage. This committee then chased its tail to try to speak to both organisations today. I am literally looking at the amendments on the screen above me. I am very unhappy about this process. While I accept that extraordinary times require extraordinary measures, I do not think there are many Deputies or Senators who would not be willing to give this issue the time we think it deserves.
Do the witnesses think it was wrong to disband the Oireachtas Special Committee on Covid-19 Response? Ever since it was disbanded, we have been trying to play catch-up with an awful lot of issues and things are falling through the cracks. The ICCL website contains a timeline showing the events that have happened and the actions it has taken. It is a great timeline. A Bill that could significantly impinge on our fundamental rights requires thorough effective scrutiny and a valid proportionality assessment, as required by our Constitution and human rights law. Would the witnesses say that what the Government has done has been a breach of our Constitution and, if so, could they elaborate on how or in the context of which provisions it has been breached?
At the briefing, when we asked whether we could take out the requirement that a tribunal could have just one person, we were told that we could not nitpick legislation. I would have thought that, as legislators, we are supposed to nitpick. What are the witnesses' thoughts on that? It relates to the concern that we have to take everything in blanket form and cannot analyse things piece by piece. Do the witnesses think the Government should be required to carry out a review of the proportionality of these restrictions and their subsequent impact on mental health?
Mr. Liam Herrick:
On the question of consultation, it is fair to say that there have been examples over the past year where there has been very positive consultation by the Department of Health and others with civil society in isolation. For example, there was very positive engagement by the Department of Health with civil society experts concerning the Covid tracking app and as a result, good privacy protections were built into it. This is an example of what is possible if the Department takes a wider view. As I said earlier, I agree with the Senator that if the Oireachtas Special Committee on Covid-19 Response had remained in place, it would certainly have improved the situation.
Regarding the constitutionality of what is being done, this is not a question about the proportionality of specific regulations. Certainly, there are some regulations that it is arguable were disproportionate and Ms Ansbro has identified some of them. A number of other ones have come before the courts, which have had to consider their constitutionality. The deeper question is whether the Government is acting within the rule of law when the Minister has been delegated such a broad power to introduce legislation which , in some instances, takes on the character of primary rather than secondary legislation, particularly when those regulations have a criminal effect - a penal provision dimension to them - and where we seen instances where the law has not even been laid properly before the public when it has come into effect. That is the area in which the Government has shown some poor practice. Whether that falls beyond the threshold of what is constitutional in terms of compatibility with the rule of law is a matter for the courts. It might be excusable in the short term but whether it is excusable in the medium term, which we are entering, is a question this committee should have to consider.
Ms Audry Deane:
We are critically aware of the vulnerable group of people who experience involuntary detention on mental health grounds. We have not had a mental health tribunal with just one person involved. It just has not happened. We know this on the basis of this morning's information from the Mental Health Commission. If we think about what is happening on the ground, some of these measures have never had to be used at all.
Our view is that if we do not need them, we do not need them. In particular, we at least need a review of what the experience for this particularly vulnerable group has been. Our feedback from members has been that, at times, people who are before a the mental health tribunal do not feel that they are being heard. They also have difficulties coping with the technology. It is quite a singularly dissonant experience to hold hearings by videophone and in camera. They do not feel supported and these are people with particular needs. If we say "stick to the knitting" and ask whether we need these measures, in our case we would say that many of them are not needed.
I welcome all of the witnesses. Senator Hoey asked all of the questions I was going to ask. I am delighted that the witnesses were in a position to answer them.
There is no doubt that we must remember that when the original legislation was introduced, it was stated that it was a temporary measure. That is clearly not the case one year later, which is very worrying. It is a very dangerous precedent to accept that this legislation can be renewed every six months without democratic debate. Yesterday, I was also very unhappy that we only had an hour in which to discuss this issue.
The protection of the human rights and mental health of Irish citizens is a priority for us. I do not feel that the extension of the timeline without debate is acceptable by any means. In fact, this week I co-signed an amendment, tabled by my colleague, Senator Higgins, in respect of the Health and Criminal Justice (Covid-19) (Amendment) Bill which calls on the Minister to lay before both Houses of the Oireachtas a detailed and specific report on the operation and impact of each of the four emergency Acts by 9 September 2021. I am concerned that, thus far, the Department has not conducted a review of the emergency health legislation in light of its far-reaching powers. It is also far from best practice to agree to this Bill without information on how the effect of granting these extraordinary powers have had to date on the fundamental rights as well as the mental health of the Irish population.
As already stated, Senator Hoey asked the questions I intended to pose. I ask the witnesses to forgive me if they have already responded because I missed some of the discussion earlier. Are there specific categories that this report must examine so that we can learn from the past 14 months? From the point of view of human rights and mental health, what are the top priority areas that need to be examined initially when the legislation is being reviewed?
Ms Fiona Coyle:
In terms of mental health, it is worth noting, which I did earlier, that the Mental Health Act 2001 is out of sync with international human rights standards and that an update is long overdue. The Act which the emergency legislation updates needs to be reviewed and I urge that be done as soon as possible. I hope that we will see the heads of a Bill before the summer recess.
There has been so much learning about mental health. On a positive note, we have seen a real recognition that mental health is at the core of everything. It is brilliant that this committee has invited us here but we would like all of the Oireachtas committees to invite us because we feel that mental health is a cross-cutting issue, and one that needs to be addressed by many Departments and committees. I urge that we take the learning and see the public appetite for a review at the moment. I think we all agree that mental health is a priority area and I hope that we can move forward in a concrete, actionable way.
Ms Audry Deane:
Mental health cannot continue to be a peripheral partner on the edge of the health and social care system, which we already know is broken. We wait with bated breath for the Sláintecare reforms to continue, get back on track and deliver us a fit-for-purpose health system. A few months ago, the quality improvement unit of the HSE said something quite spectacularly interesting. It said that we cannot go back to the broken system. That is something with which we agree. Covid has given us an opportunity to totally reconfigure the health system. We would go further and say that Covid has given us a non-negotiable opportunity to totally transform the mental health services so that they can become fit for purpose. Currently, capacity is just not there. We have shaming statistics for waiting lists for both children and adults. The ICT is so shocking that it is hard to describe pieces of it that do work. We do not have a system that is fit for purpose.
Our funding is 5.1% of the total health budget whereas it is between 10% and 13% in other jurisdictions. To go back to Sláintecare, our blueprint, it suggests that at least 10% of the health budget should be devoted to mental health. On foot of this, people can see how deep is the legacy of underinvestment and marginalisation. In addition, the outcome we have is a system that does not provide people with preventative care or any sort of access. We have an opportunity to rebuild and reinvest. We would like to see political leaders take the bold decision to allocate funding to where it should go.
Ms Doireann Ansbro:
On the one hand, we need to improve how we distinguish between law and guidelines. That means we need to reassess how we use criminal sanctions in the middle of a pandemic. We must ensure that the way we encourage public compliance is to have a focus on communication and targeted supports.
When it comes to particular communities affected by Covid and the restrictions, we have examined the position in a number of different communities, particularly vulnerable ones, in conjunction with Community Foundation for Ireland and will publish a report on the matter next week. There is a specific human rights obligation on the Government to ensure that any general policy does not result in indirect discrimination in respect of particular groups. We are concerned that that assessment was not done at the outset and still has not been done properly. What we have seen is that there has been a disproportionate impact on a number of different groups in society, including women who are in low-paid jobs, who lost their jobs or who have been affected by the care burden and the lack of proper childcare supports. So there are particular people who have been impacted upon in a variety of ways. We also saw a disproportionate impact on people living in congregated settings, namely, those living in direct provision centres and people living on halting sites.
We have seen a number of minority communities potentially impacted in a greater way by the policing approach. Getting proper statistics on this is difficult because we do not have the disaggregated data that we have sought from An Garda Síochána for a very long time on who has been affected most by policing. On foot of reports from individuals and the media, we can see that, potentially, there are concerning patterns in how the Covid regulations have been enforced.
We would say that better supports are needed for vulnerable communities and that there should be with less reliance on criminal sanctions. Also needed is a much better focus on ensuring compliance with guidelines through better communication and supports. There is a need to ensure a very clear distinction between what is law and what will attract a criminal sanction if that law is breached, and what is a guideline, which is a matter of ongoing concern.
I thank the witnesses. I did not hear all of the discussion at the start of the session because I had some technical issues. As a new Deputy, I am really disappointed with this procedure. If it was not for my party colleague, Deputy Cullinane, giving up some of his speaking time, I would probably not have had the chance to even interact with the committee today. This legislation warrants a full debate and not this piecemeal procedure we are going through at the moment. This does not take away from any of the witnesses here at this meeting.
When we extend any Government powers indefinitely, or even until November, we really need to look at it. Mental health was mentioned, but no debate happens in the Dáil Chamber that does not mention mental health. There is not a decision made at the Cabinet table that does not have an impact on people's mental health, be it housing policy, access to services for children with disabilities, or business. Whatever it might be, it has an impact on people's mental health.
Due to the fact that my time is limited, I will be specific in my questions. Ms Deane answered my query when she spoke earlier, but I want to go through the matter again. It was mentioned that the procedure to allow for one-member, paper-based tribunals that require the minimum personal interaction between relevant persons has not been used so far. What are the views of the witnesses on this procedure? If it has never been used is there a need for this measure to be in the legislation going forward?
We were all championing vaccine protection for people with acute and severe mental health illnesses. At this stage, many of these groups have received their vaccine and, therefore, it is now a safer place. There is now less of a need for this provision to continue in the legislation.
What have we learned in the context of mental health over the past while that will influence us in future policy and decision-making? Blended therapy has worked for certain cohorts but has not worked for others. What lessons have we learned from this and what can we use going forward to make mental health services better?
Ms Audry Deane:
We are getting a high volume of research coming in continually. It is excellent. It is all very new but it is important. The big message that Mental Health Reform wants to get across to the committee is that specific groups are definitely more vulnerable to the impact and the results of the pandemic. Specific and targeted interventions are needed. In our current situation, with how the mental health system is so poorly fit for purpose, there is no way around this. We need a lot of funding and we need to ensure the funding goes into the front-line services to offer targeted, preventative interventions.
We have touched on the groups that are extremely vulnerable, and there are quite a lot of them. It will be very clear to Deputy Ward that many of these are people who have poor access to the social determinants of mental and physical health - to use the jargon. In ordinary language, this means people who cannot access proper housing, education, jobs, communication, and amenities. Their children cannot play anywhere. The list is endless but I do not have the time to go into it in detail. These people, and especially those in precarious employment situations, are very exposed to the virus.
An interesting group is healthcare front-line workers, and nurses and midwives in particular. The CSO has done an interesting piece of work that matched up census 2016 data on occupations with the total number 69,000 cases of Covid in the March to November period of last year. The CSO found that despite being only 2% of the full total of the workforce, nurses and midwives made up 6% of all cases of Covid.
There are also people with pre-existing mental health difficulties. They suffer for two reasons. First, there is the pandemic and the restrictions, which have impacted very obviously on that group and disimproved their mental health status. As a cohort, they are also more likely to get infected with Covid-19. This is a double whammy, if one wants to put it like that.
Ms Ansbro has already referred to women as a vulnerable group, and particularly women in part-time, precarious employment. They have been impacted very badly by Covid. A survey by the National Women's Council tells us that many women have been impacted hugely by caring responsibilities, which have increased since the pandemic, with 55% having less time to concentrate on their own mental health.
We could not ignore the cohort of youth aged 18 to 35. This group has been hugely impacted by the pandemic for a variety of reasons. As other speakers indicated, specific and particularly marginalised and vulnerable groups include people with a dual diagnosis of addiction, those who are homeless and ethic minorities who live in precarious housing situations. The list is not endless but these are quite specific groups who will need quite specific and targeted interventions. We will need funding to get to grips with this.
As the HSE report published in February indicated, Mental Health Reform believes that our sector can be a partner in the future to reconfigure how mental health services are designed and delivered. We stand ready, on behalf of our 75 members, to work with the HSE to create targeted interventions that will allow people to access mental health services when they need them.
I have one supplementary question. Many people are experiencing mental health issues for the first time and large numbers of them have not been reaching out. Some of these people are in the cohorts mentioned. After the last lockdown and at the start of easing of restrictions we saw a lot of mental health services being inundated. It was not during the restrictions, it was as the restrictions eased. On the expectation of this happening again, what needs to be put in place? I am aware that resources are needed, but what needs to be put in place to help those services to meet the expected increase in demands on their services?
Ms Audry Deane:
Without hogging the discussion, I will say there is a huge piece of research coming out of Maynooth University, which is the Irish partner in the Covid-19 consortium in Ireland and the UK. It is doing massively valuable work. When it did its first review back in March 2020, which seems like a long time ago now, it found that there was already quite a high level of mental health difficulties in the general population, regardless of the impact that was to come in the intervening period. One can see that there are people out there who have not yet reached out and who are existing with some degree of mental health difficulty. There can be no doubt that if their mental health deteriorates and if the services continue as residually as they do in many cases, we will run into a serious problem.
There are, however, a lot of people out there who have been exceptionally resilient and who have not suffered. After the initial blip - the uncertainty, the fear, the huge anxiety and the stress - many people are actually coping very well. We in Mental Health Reform are not in the doom and gloom business. We value and celebrate people who survive, thrive and flourish in resilience. We want to make sure that everybody can do that. We will need appropriately funded mental health services, but 5.1% of the total health budget is not showing us that mental health has parity of esteem in the current status, as Deputy Ward will be aware. We ask our leaders to ensure that mental health services can do what they want to do, which they cannot do in the current climate.
We share the Deputy's frustration about the process that is going on today. We would clearly have liked more time to discuss these matters but the legislation was sprung on us without pre-legislative scrutiny by the committee. That is not best practice. The legislation gives extraordinary powers to the Minister and there is a concern over democratic oversight of legislation that is going through the Dáil. We realise that this legislation has transformed people's lives. It has taken away many of their basic rights. I do not know if members of the committee would like to respond to this, but one of the issues people raise is about the importance of bringing people along with us. Unfortunately, throughout this process, we have not been good at doing that. We have not been good at bringing people along with us in respect of the legislation. Some of the regulations have been of an arbitrary nature. Strikers have been stopped and their names have been taken during the pandemic. People have, in many ways, not been able to protest. People have been forced to give up many powers. They have been unable to bury their dead properly. They have been unable to attend religious ceremonies. Those were all significant decisions that were made, supposedly in the public interest to protect against the pandemic. They have had huge impacts.
I noted that the representatives of Mental Health Reform talked about a survey was carried out by the Department of Health. Some 36% of respondents reported stress and frustration. Some 29% reported sadness while 24% reported loneliness. Those are the highest levels since the surveys began. The Samaritans have been getting an unprecedented number of phone calls. The Garda has reported unprecedented levels of domestic violence. There are difficulties in getting space in a safe refuge for many people who are crying out for help. We know the pandemic has negatively impacted people. I do not know if committee members have a view on this. The committee shares the concerns of our guests about the fact that there has been no real review of these powers. We asked representatives from the Department of Health whether there was going to be a review. If there has been a review, this committee has not had access to its results and that makes it difficult for us to move on.
This meeting has been an attempt to give an overview of the legislation. It is not ideal. We need more time to discuss it and I share the concerns of members in that regard. If we are to give extraordinary powers to a Minister, we need to scrutinise the legislation and the amount of time that has been allocated is clearly insufficient. The legislation has not come to the Dáil yet but I hear the frustration of our colleagues in the Seanad.
The survey indicates a crisis in mental health. Do we know if healthcare workers in mental health areas were withdrawn to be used in other work, such as Covid testing and vaccine roll-out, etc.? Perhaps our guests from Mental Health Reform could respond to that. How did the pandemic impact on services? We heard from parents whose children have special needs that classes had stopped and that lack of routine caused difficulties. Have our guests been picking up how that impacted children?
Many parents have talked about the lack of supports, particularly during the pandemic. Some people have had difficulty in getting through to their GPs. There have been difficulties for people going to accident and emergency departments because the recommendations were not to go unless the situation was an emergency. Is it still the case that many people must take the accident and emergency route in order to access mental health services? Do many parents still have to make an ultimate decision about abandoning a child so that services will follow? That has been said by a number of people.
We were told at the start that this legislation would contain a sunset clause. We are not really in a position to discuss the legislation but would Mr. Herrick have concerns about the continuing and random nature of these powers? Even at this late stage, what can the Minister and the Department do to assure and reassure people that there has been proper scrutiny of the legislation? I have asked a couple of questions of the representatives of both Mental Health Reform and the ICCL.
Ms Fiona Coyle:
The Chairman asked about challenges in the delivery of mental health services during the Covid period. A WHO study last year clearly showed that every country has had difficulties in delivering the services it had been delivering prior to the pandemic because there was increased demand and limited delivery due to the Covid-related restrictions.
The Chairman also asked about the impact of redeployment. We do not have an answer, unfortunately, to how many staff have been deployed from mental health services into the Covid response. Numerous parliamentary questions have asked about it but the HSE has not been able to provide us with that information. As representatives of Mental Health Reform, we have some concerns in that regard because we need to know about the current capacity of our health service.
I will ask my colleague, Ms Deane, to talk about young people and some of the other groups the Chairman mentioned.
Ms Audry Deane:
I will take up the point about the lack of data we can get for mental health services because that continues to worry us. We do not have a functioning mental health information system. In fact, some of the files are, in some cases, handwritten on paper. There are considerable challenges in that regard. We cannot currently track patient outcomes and pathways across the various settings, whether community, secondary, specialist or in-patient acute.
I am mindful that on 21 April, the Dáil debated mental health. Some statistics were discussed which, at that stage, were fresh. Some 8,892 children are currently waiting to get access to psychological services in the HSE. With regard to child and adolescent mental health services, CAMHS, we have known for quite some years that the capacity to reach out to children and adolescents when they need care is not there. The issue was debated at length in the Dáil recently. Is it acceptable and appropriate to have a target that a patient would be seen by a CAMHS team within 12 weeks? Is that how services should be benchmarked? Our view is that for a child or adolescent to spend 12 weeks waiting for a service when they are in distress is not good practice. There are currently 2,730 young people waiting to get access to CAMHS, of whom 98% have been waiting for over a year. None of us here has to work very hard to imagine what that means for a young person, his or her family, carers and immediate community. We do not even have any data on who is waiting to get access to adult community health teams.
I could rattle on with other statistics but it is enough to say that services are inadequate at the moment.
People cannot access services. We are concerned about future outcomes. It is quite clearly the case the HSE’s expert group on Covid, drawn from mental health specialisms within the HSE, has delineated the pathway. The fourth wave will involve the individuals in question. Deputy Ward has already alluded to some of them. I refer to people who are currently undergoing mental health difficulties for the first time. In the coming months and years, that group plus all the other specific vulnerable groups, whose situations we have described, will all be trying to access services to meet their needs. As already stated, the mental health services will not be in a position to provide the level of service that will be required.
Mr. Liam Herrick:
In terms of how we might modify the powers that are in place, I have just received a note from a colleague. I understand that while this meeting has been under way, the Minister has indicated in the Seanad that he intends to bring forward an amendment to the effect that the provision for three-month extensions would be for only one-three month extension rather than an indefinite number. That is a positive step but it does not go far enough. It is essential that the Oireachtas should be given a role in overseeing the introduction of any regulations. Many practical suggestions have been made on how this could be done, for example, a period of time would be allowed and regulations would lapse if they were not approved by the Oireachtas. We hope that might be taken on board by the Dáil in the coming days.
The Chairman raised an important point to the effect that we need to bring the people with us. From our perspective in terms of civil liberties and human rights, what we have seen during the past 14 months is an incredible demonstration of solidarity by the Irish people, with the population sacrificing their rights and civil liberties for the protection of the most vulnerable in our communities. That is incredibly impressive and we should recognise and celebrate it. However, it behoves the Government to reciprocate and prioritise the restoration of people’s rights. The concern is that more priority seems to be attached to the reopening of the economy than of a return to normal civil liberties and democratic rights. If we were to reintroduce democratic controls, we would get better outcomes in terms of better rules laws but we would also defuse matters with regard to much of the negative disinformation. We would be showing people that we are taking their rights seriously. That would take much of the heat out of arguments of those who might be advancing conspiracy theories or other suggestions that the Government is engaged in something nefarious. In fairness to the Oireachtas and the Government, their first priority is the protection of health and we should all be coming behind that. There is an opportunity this week and next week for the Oireachtas to show that it is taking rights seriously, reintroducing democratic protections and taking away extraordinary temporary powers from the Minister for Health because this is the right time to do that.
Ms Doireann Ansbro:
We need to remember that what we do today sets a precedent for the future. If there is any way we can improve processes today, we must do it. We are all behind the pubic health effort and we understand why the restrictions on rights have been brought in. We do not know what type of Government we will have in the future which might use these precedents in a way that we would not all support. That is why conforming to rule of law standards and human rights law, which is in place to protect us, is important. One way the Minister can demonstrate his commitment to the rule of the law, human rights and democratic scrutiny is by taking an opportunity to revise the initial legislation before it is renewed. He can do that by introducing these democratic oversight requirements in the primary legislation. For example, by requiring pre-legislative scrutiny by the Oireachtas of all regulations and that the Oireachtas must approve regulations within ten days of they being passed, as IHREC recommended. Those elements could be introduced in the legislation today and more than anything that would demonstrate the Minister's commitment to bringing us back to the type of democratic scrutiny that protects us all from the misuse of power.
Ms Fiona Coyle:
I thank the committee for inviting us to come before it today. It is positive to see that mental health is and continues to be a central part of discourse around Covid and recovery following Covid. There is a phrase to the effect that there is no health without mental health. There will be no recovery if we do not address some of the concerns we have raised. We would welcome more discussion on the emergency legislation and, in particular, section 5 of the Mental Health Act. While the discussion today has been very much limited to that, we urge that there to be wider discussion in respect of the Mental Health Act in general. We would welcome an opportunity to discuss that with the committee at some point in the near future. I reiterate our belief that there is an opportunity to build the type of mental health services and supports the country needs and deserves. We look forward to working with each Deputy to make that vision a reality. Gabhaim buíochas leis an choiste as an t-am a thabhairt dúinn.
Mr. Liam Herrick:
On behalf of the ICCL, we deeply appreciate all the comments of the members of the committee. What they had to say demonstrates a great deal of common purpose. There is a strong commitment on their part to the protection of human rights. We all want to achieve the same thing. Many of the difficulties we have had during the past year have been due to the pressure of time in dealing with an emergency, but we have an opportunity now to move beyond that. We will have further challenges in the coming months. We want to achieve the strongest possible public support for the vaccination programme in particular. Ireland could be heading towards having as high an acceptance rate of the vaccination programme as 90%, one of the highest in the world, which shows the people are behind the public health effort. On the other side of the ledger, we should be returning to normal democratic rights, removing emergency temporary ministerial processes and particularly emergency laws that take away the rights of the most vulnerable people in our community such as those suffering with mental ill health. We should be reintroducing parliamentary democracy to the fullest possible extent. There is common purpose here. The Oireachtas has spoken very loudly about this both in terms of the Seanad debate yesterday and this debate today. I hope that the Dáil will do so in the coming days. We very much hope the Minister for Health shows a willingness and openness to have stronger safeguard protections, which, as the Chairman said, would bring the people along with us. We believe there is an opportunity to do that. The fact that the Minister is already moving to suggest some amendments is a positive sign. We hope there is scope for more movement during the course of the rest of the debates.
I thank the witnesses for attending. We would have liked to invite other groups to attend but, unfortunately, we did not have the time, there was not the space and the Oireachtas was not able to facilitate us to have more meetings on this issue. We realise we are right up to wire with respect to legislation being discussed in the House, but it was important we had this meeting. It gave us a sense of what we need to do in the future. As one of the witnesses said, it is about showing leadership.
If anything, the point that has been made by both groups this morning is that we need to spend more time explaining why these measures are being introduced. We need to give people time. Even at this late stage, if we look to the future we need to have a review mechanism for the extraordinary powers we are giving to a Minister. It is a basic right of people. The Oireachtas should have sufficient time to go through any legislation that gives powers of this sort to a Minister. I appreciate the witnesses' involvement and contributions this morning.