Oireachtas Joint and Select Committees
Tuesday, 5 April 2022
Joint Committee On Health
General Scheme of the Mental Health (Amendment) Bill 2021: Discussion (Resumed)
I welcome everyone. Members have been circulated with draft copies of the minutes of the meetings of 17 January 2022, 8 February 2022, 8 March 2022, 22 March 2022 and 25 March 2022. Are those minutes agreed? Agreed.
The committee will today complete its pre-legislative scrutiny of the general scheme of the mental health (amendment) Bill 2021. Today's meeting will be split into two sessions. I welcome our first set of witnesses from Shine and the Psychological Society of Ireland, PSI. From Shine, I welcome Ms Nicola Byrne, chief executive officer, and Ms Estella Vidal, advocacy officer, while from the PSI, I welcome Dr. Anne Kehoe, president-elect, and Dr. Michael Drumm, council member.
Before we hear opening statements, all members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if statements are potentially defamatory regarding an identifiable person or entity, I will direct that the remarks be discontinued. It is imperative that any such direction be complied with.
I now call Ms Nicola Byrne to make her opening statement.
Ms Nicola Byrne:
I thank the committee for the invitation to attend. Shine is a national organisation which provides information and support to people affected by mental health difficulties, through individual and group work and recovery education and training. Originally called the Schizophrenia Association of Ireland, SAI, we were established in south Dublin in 1979 by a group of family members and professionals. In 2009, we changed our name to Shine to reflect how we had developed to offer supports to everyone affected by mental health difficulties and their families. We are the only national mental health organisation specifically founded to support all family members.
Shine has two national stigma reduction programmes aimed at promoting change in the societal perception of mental illness. These are See Change and Headline. Some of our projects of the committee may be aware include: the Green Ribbon campaign, which will celebrate its tenth anniversary in 2022, and the national mental health media awards. We acknowledge the hard work and commitment of all involved in progressing this legislation to this stage and we broadly welcome the provisions of the Bill, as outlined in these draft heads currently under consideration.
We believe these changes will improve mental health services and give an amplified voice to service users. Our analysis of the heads of Bill is influenced first and foremost by the voices, personal testimonies and lived experiences of the people we work with. It is also informed by the human rights analysis and is framed under key relevant articles from both the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities, UNCRPD. Shine welcomes the shift in paradigm from one of best interests to one of guiding principles. A lot has been done in this regard but there is still a long road ahead of us. Based on the voices of the people that we work with and quoting the UN special rapporteur, we advocate for a shift that moves away from paternalism, a "paradigm shift that is recovery and community-based, promotes social inclusion and offers a range of rights-based treatments and psychosocial support at primary and specialized care levels".
We emphasise and are keen to discuss in more detail, with testimonies, the following points. The first relates to the family and supporters. People do not exist in isolation. It is vitally important that family members and supporters have supports available to them through the mental health services, independent of any supports being provided to their loved one. With regard to advocates, we believe the role of advocates and advocacy services is not given enough consideration in the heads of Bill and should be further highlighted and elaborated on as it is key if people are to fully exercise their legal capacity.
On seclusion and restraints, these practices are not consistent with the prohibition of torture and other cruel, inhumane or degrading treatment. The guidelines from the UNCRPD support eliminating these practices to protect the security and personal integrity of persons with disabilities who are deprived of their liberty.
With regard to early intervention and community services, it is evident that the promotion of community support mechanisms at the local level can prevent difficulties from becoming more complex. We support the recommendation to include a provision for the right to community mental health services in the amended legislation as this will contribute to a reduction in the number of cases that evolve into more complex mental health difficulties.
On information and knowledge, we strongly believe that information is power. When asked about some of the amendments being put forward in the heads of Bill and the key gaps, a significant number of people told us they were not aware that such a process was taking place. We would therefore like to encourage the development of an awareness raising campaign to provide the Irish public with key information on the upcoming Mental Health (Amendment) Bill and the Assisted Decision Making (Capacity) Act 2015.
With regard to voice and participation, the voice of the service user should be at the core of all planning, both in care and embedded in mental health service delivery. Advocates should participate in the development of the care plan and plans should be developed in a format and language that the person can understand.
With regard to stigma and discrimination, we welcome replacements already made in the heads of Bill such as the replacement of "patient" with "person" and "tribunal" with "review board". However, the people we work with question the use of the term "mental health disorder" to describe their difficulties. There is consensus that the term is degrading, stigmatising and not aligned with human rights principles.
Other areas that we would welcome discussion on include: treatment and consent; the importance of privacy and the impact of the physical environment on recovery; an independent complaints mechanism; culture change and resources; and examples of good care and practice in mental health services. Finally, we note that it was confirmed in an earlier session that the guiding principles that state “the provision of mental health services is subject to the availability of resources” would be removed. These are laid out in the proposed section 84(4) in the context of children and the proposed section 4(9) in the context of adults. However, we ask that this removal form a specific recommendation of the committee. I thank the committee for the invitation to speak today. We are happy to discuss these matters in more detail and to answer members' questions.
Dr. Anne Kehoe:
On behalf of the Psychological Society of Ireland, PSI, I thank the Chairperson and members of the committee for the opportunity to address the committee on the pre-legislative scrutiny of the Mental Health (Amendment) Bill. I am the president-elect of the PSI. In representing the PSI, I am joined by my colleague, Dr. Michael Drumm, PSI council member and former president of the society. The PSI is the learned and professional body for psychology in the Republic of Ireland. It was founded in 1970 and currently has more than 4,000 members.
In March 2021, the PSI made a formal submission with regard to the review of the Mental Health Act 2001. The submission was guided by the report of the expert group on the review of the Mental Health Act 2001 and the 165 recommendations contained within.
Since the enactment of the Act more than 20 years ago there have been significant changes both to mental health policy and direction in Ireland, starting with the Vision for Change in 2006 and most recently in Sharing the Vision, a mental health policy for everyone in 2020. This amendment is a once-in-a-lifetime opportunity to improve mental healthcare in Ireland and to move away from a medicalised or illness model of mental health to a mental health Act that is in line with international best practice, and moves to a model that holds the person at the centre, is trauma informed and recovery focused from start to finish and that will be fit for purpose for all those it serves in this generation and beyond. This requires changes in the current service delivery model so that social and psychological interventions are the first line of treatment considered when a person presents with psychological distress or mental health difficulties.
I wish to highlight some of the recommendations from the formal submission made by the PSI. Recent focus on the provision of child and adolescent mental health services, CAMHS, has highlighted the need for change in regard to clinical leadership. The model of leadership by a single profession, a consultant psychiatrist, is considered now to be limited in that it does not give full access to the skills of the range of multidisciplinary team members. In the UK, CAMHS teams are led by a range of appropriately qualified, capable and competent mental health professionals. Good clinical governance allows for a model of clinical responsibility which recognises that each individual clinician carries clinical autonomy and responsibility with regard to his or her own specific treatment and intervention. The Mental Health Commission document, Teamwork within Mental Health Services in Ireland 2010, articulates this well and its principles should be incorporated into the revised Act. The commission document proposes a distributed model of responsibility whereby clinical responsibility is distributed among the involved team members according to their role and contribution. Such a shared model of mental health service will lead to a more effective and accessible service for families that is consistent with client-centred recovery oriented models of practice with people who use mental health services.
The PSI recommends that the role of clinical lead and clinical director in all community mental health services be expanded to include qualified, experienced mental health professionals in line with international best practice. The PSI also has a number of recommendations in regard to mental health provision for children that are supported by the report of the Mental Health Act expert review group. The PSI recommends that to emphasise the specific rights and responsibilities towards children that provision related to children should be included in the stand-alone part of the Act. There should also be a set of guiding principles that apply to children under the amended Act. Children aged 16 and 17 should be presumed to have capacity to consent or to refuse admission and treatment, to address this anomaly whereby mental health consent is treated differently from general health consent. For those under 16 years a parent or equivalent must consent to the voluntary admission and the views of the child should be taken into account by all and given due weight having regard to the age and maturity of the child.
The PSI recommends that the same provisions in as far as possible apply to children as to adults in regard to the criteria for involuntary detention, specifically that admissions orders be for 14 days and that it is mandated that fellow mental healthcare professionals along with the consultant psychiatrist be required to provide a report when an order of detention is extended for children. The PSI is supportive of the recommendation of the expert review group that a mental health professional from a different discipline would consult with a consultant psychiatrist and would also complete an assessment prior to making an admission order, as well as at the point of a renewal order. Additionally, it is recommended that a psychosocial report should be carried out by a member of the multidisciplinary team and provided to the tribunal to assist in its decision-making.
I thank members for this opportunity to speak today. We are happy to take any questions in regard to this opening statement or on any of the recommendation made by the PSI in its formal written submission in regard to the proposed amendments to the Act.
I thank our speakers for taking time with us today. This is such an important piece of work. We have had many sessions on it now. I really value the opening statements. There might be some questions that hark back to other opening statements. As somebody who is not expert in this area, I am trying to join the dots and make it make sense. I will turn to Shine first to ask about the role of family and how they interact with a human rights based model. That model places the person at the centre. One of the things we heard from some other groups is a concern around people's insight into their own situation. That might be the best way of saying it. As a group that works not just with people who are experiencing issues themselves but also their families, could Shine outline how it sees that delicate balance being achieved within the context of this legislation?
Ms Nicola Byrne:
While the right to confidentiality and privacy of the patient must be protected at all times, it is vitally important that family members and supporters have guidance and support mechanisms available to them through the mental health services. These mechanisms should be established to provide ongoing supports to family members and supporters both before and after admission, as family members and supporters can feel particularly isolated and vulnerable at these critical times. Family members and supporters could access information and share opinions and concerns via an allocated key worker, we would suggest, who could then communicate with the multidisciplinary team where appropriate, and particularly where concerns regarding risk to self or others are raised.
We also welcome the allocation of advocacy services that support family members and supporters. Family members and supporters are often the only primary care that people can access yet they are left outside the door in all of the planning, interventions and decisions. There is a need to move to the "shift left" concept identified in Sláintecare and plan for appropriate inclusion of those who support people with lived experience, not just in crisis but in recovery and wellness. The role of the authorised officer is very important to enable families to stay in their role and to continue beyond admission to have a positive relationship with their loved one. This needs significant investment and buy-in. For example, in a survey we did this week we found that 74% of respondents were not aware of the authorised officer role under the Mental Health Act.
Here are some of the testimonials shared by people who use Shine's services in respect of the engagement of family members and supporters in care, treatment and recovery plans. One person said that better family involvement and representation is required and indeed necessary for the care of the patient. It is unacceptable that there is no provision for family attendance or representation at hearings that review patient retention in hospital under the Mental Health Act. This needs to be amended to include family members in such reviews and hearings. The person says that families should be heard at such forums. Another person said that as a family, they found it hard at times because they could be left out or not informed about their loved one's care. The person understands that because of patient confidentiality, families are not told everything but when the loved one had to come home while still suffering with psychosis, those times were hard. The person really thinks there should be more support for families and they should be kept better informed about their loved one's status during their care. Another person said that more family involvement in patient care is vital to the patient treatment and care plan and asked how care in the community is to progress without the family involvement and support. Better balance is required between patient confidentiality and the family's or next-of-kin's knowledge and understanding of treatment plans. Next-of-kin should be updated on treatment plans and should assist in discharges from hospitals. Another person said it is extremely important that the family knows what is going on as it is a huge part of the person's life. Essentially family should be kept more up to date when any problems are seen. The process should be more collaborative all round.
Article 14 of the UNCRPD, liberty and security of the person, provides:
1. States Parties shall ensure that persons with disabilities, on an equal basis with others: a) Enjoy the right to liberty and security of person;
b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.
Article 15, freedom from torture or cruel, inhuman or degrading treatment or punishment, provides:
1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
I will leave it at that.
Ms Estela Vidal:
Our approach to families is very much in line with how the role is described by the UNCRPD. In Shine, as Ms Byrne mentioned, we have extended the family definition to include supporters because we are aware that not everyone has a family member. Some people experience bad relationships or they might not be in a position to select a family member, so we have extended the definition to “family members and supporters”. We are in line with how the UNCRPD describes the role, although we would say “family and supporters” rather than “family”. The UNCRPD states: “Family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities.”
Thank you. That is fantastic because Ms Vidal has slightly covered one of the issues that I wanted to follow up on with Shine. I want to come back to the issue of allocated key workers with Shine and some of the other witnesses. To stick on that family aspect, I have two follow-up questions. First, Ms Vidal has somewhat covered the issue of the definition of the family and she said Shine has broadened it out to include supporters. In terms of accessing services and getting medical professionals to engage with a supporter or family member, who decides or signs off on the definition? Is it the person at the centre who decides “This person is considered my family or my supporter”? Does Shine envisage that there might be some problem or difficulty with medical professionals accepting somebody as an advocate or supporter in that context?
The second question is a more practical one. I am trying to get in my head what that kind of family engagement or support would look like. For example, in the creation or development of a care plan where somebody is probably on the road to recovery and is well able to become involved in the development of that, in a practical way, what would Shine envisage as the family level of engagement in terms of understanding what the road ahead looks like for people?
Ms Nicola Byrne:
I will take the second question first. It is important that we respect that the family is going to be the one, or the supporters, because people often have family who are not biological or genetic. It is very important that their opinion is taken into account, not in a way that breaches confidentiality but in such a way that they support the person to live their best life. They know the person best and they might have other parts of the story that help the professional to make an assessment on what the needs of the person are. We would envisage that we would have a contact person on the network disability team, NDT. That would be similar to the arrangements that happen in, say, foster care, where a social worker would be allocated to the child and a social worker is allocated separately to the foster family. There would be someone on the NDT who represents the family’s needs, rather than the family being left outside the door and getting a phone call to say, “I am coming home”. That may just mean they are able to leave in bread and milk for somebody when they come home from hospital and be part of the planning process. We do not expect to know all of the information on the loved one but we do expect that they are part of the conversation and that they can be part of the plan, so people can successfully leave hospital or that the level of treatment they get is at the right level and things can be planned for. Family is very much part of people's success. We do not operate in isolation and we need to be enabled to support people when they are in the need of care.
Will the Deputy repeat the first question?
I am glad to hear that Shine is taking a relatively broad view and understanding of the family. I completely agree that while there is blood family, sometimes your best supporters are the people you choose rather than the people you are related to.
However, it strikes me that this broad definition might not always be recognised by medical professionals and that there might be concern over who is invited into the room. I wonder whether the delegates have considered this if supporters are being included in the definition of family.
Ms Nicola Byrne:
It is important that all care be provided with respect for the individual's opinions, such that anyone experiencing mental illness can identify those he or she regards as family, next-of-kin or supporters. The individual should be at the core of all planning. If we take that position, everything else will fall naturally into place from it and there will not be an issue. Often we are prescriptive in the way services are delivered but it is more important to have a person-centred approach. In care planning and recovery planning, it is really about individuals stating who works for them, who they trust and their supporters.
Ms Estela Vidal:
The Deputy referred to the role of the advocate for the family. In talking about family engagement, we would really like to take the opportunity to highlight the importance of the role of the advocate support service to families. This role is not considered enough in the heads of Bill. It is key to exercising the legal capacity of the individual. Families have a really important role here.
We would like to highlight some international best practice. For example, the Scottish Mental Health (Care and Treatment) (Scotland) Act 2003 provides a right of access to an independent advocate. In this regard, I would like to refer to two passages from the testimony of a person who uses our services. In the first, the individual states it was not explained that other people could attend the meetings or that a peer support person could help, adding that it was not until two years later that they discovered such a person existed. The second point is that an independent advocacy service is paramount for the person who has lived experience of mental ill health and that there are no statutory advocacy services attached to mental health services. That latter, according to the testimony, is something that would need to be addressed so the person with lived experience has support to make decisions as to their will and preference.
Dr. Michael Drumm:
I will be brief. I agree with all that the Shine representatives have said. The Deputy's point is on how we legislate for that. It is very hard to write it into an Act but it can go very well in guiding principles. It is about a collaborative model. What is required can be put into a care plan, and rules and regulations can be made through the Mental Health Commission in that regard. Once all users of mental health services are familiar with what has been provided for, they can insist on it. It is a question of guiding principles and regulation through the Mental Health Commission rather than putting a particular point into the legislation. It is through the guiding principles at the start.
I thank Dr. Drumm for that. It was really helpful.
I now want to turn to the issue of authorised officers. There is a lot to be considered by a layperson like me coming to this. There is the allocated key worker and there are the advocacy services, but I just want to deal with the issue of authorised officers because concern arose in previous debates over the role of authorised officers in the Bill and whether it might result in delays in patients accessing treatments. There is concern that we do not have enough authorised officers. The best way to build legislation might not be on the basis of the failings of our service. I would like both sets of witnesses to comment on whether they have concerns over the specification of authorised officers in the legislation. Do they believe it will make things more difficult from a professional point of view? Will it have an impact on the role of families in applications?
Ms Nicola Byrne:
The role of the authorised officer is very important. When we surveyed our people this week, most of them did not know what an authorised officer was. At present, too many people are experiencing admission and deprivation of their liberties through the Garda Síochána or family members have to sign them in if they have the opportunity. Often, they bang on multiple doors and never get that. What we are not talking about is the people who do not get admitted. I am sure the committee is aware that lots of people present at emergency departments or to teams every day and say they need help, but they do not get an admission. An authorised officer is a very helpful, independent vehicle to support both the person who is mentally unwell and, at the same time, family members so they can maintain their position as carers.
A great deal of work was put into the authorised officer role when it was started, and where authorised officers worked they worked very well. The difference is that under the last Mental Health Act the investment did not follow the authorised officer role, so we never got a chance to explore its potential. If it is rolled out properly, it has significant potential to make a big difference in how people experience care whereby they do not have blue lights at their door and they are able to be admitted in a planned way. Often authorised officers work to agree a plan with the individuals so they may not need to be admitted or signed in through an order but may actually go in voluntarily. We never had the potential to tap into the experience of authorised officers and how that might work in this country, but it is a very important role and we urge that investment is made in the role of the authorised officer.
Dr. Michael Drumm:
Briefly, it is a resource issue, but it is an exceptionally important part of the Act that never happened. It is welcomed on both sides of the door of approved centres because I believe it will be seen as a resource and a help, but it involves resourcing. It dramatically changes the way the system works. It means that the officer will be the support person for the person who is struggling with mental health. It stops that person ending up in a Garda station. The person ends up in an appropriate approved centre with a clear plan from the get-go, as opposed to just arriving under blue lights or being detained in a Garda station, which is totally inappropriate. It is really important, but it is a resource issue.
Both witnesses are supportive of it as a general principle. To follow on from that, one of the discussions we have had over multiple meetings is on the issue of multidisciplinary teams, how they operate and where the lines of responsibility are. From a psychologist's point of view, does Dr. Drumm take a view on that or is it something that is of concern to him in the new Bill?
Dr. Michael Drumm:
It is, absolutely. We advocated for that in our submission, particularly that there should be parity of esteem across the multidisciplinary team. Team lead should be based on one's skills and competence, not on privilege of one profession over another. It gives a sense that all are in the boat together. That is international best practice, and it was part of our opening statement. It is transformative of mental health services. Others will have different opinions on that but, from my perspective, if somebody is the most competent person to lead the team, there is nothing to fear from that and it should not be judged.
Ms Estela Vidal:
Overall, I agree with all my colleagues. We welcome the role of the authorised officer. We believe it is contributing towards what we are bringing forward today, which is a human rights approach. From Shine's perspective, and I am sure from other perspectives as well, we wish to emphasise two points. One is that we strongly believe that role must be complemented by the independent role of the advocacy person. We also wish to emphasise the importance of information and knowledge. While we agree the role of the authorised officer is very important, as Ms Byrne mentioned, 74% of the respondents to the survey that we did in preparation for this meeting did not know what that was or that it existed. We suggest that the committee, if possible, consider the possibility of launching an awareness campaign when this process is finished to give the public the highlights of the new revised Mental Health Act, and that this goes together with highlights from the Assisted Decision-Making (Capacity) Act, so that people are aware that this is new and this is coming.
I thank Ms Vidal for that. I also want to touch on the issue of the new language in respect of the grounds for detention. There is to be a slight change in that, rather than referring to the presence of risk, detention will have to be immediately necessary for the protection of the life of the person, the protection of his or her health from serious threat or for the protection of others. Some of the groups we have spoken to, particularly the College of Psychiatrists of Ireland, had fairly significant concerns in that regard. They felt it might increase the risk to patients and families and that it would reduce the agency of medical professionals in recommending detention. I am interested in hearing the views of both witness groups on that perspective.
Dr. Michael Drumm:
Admission should always be for treatment rather than risk. That should always be the case. It is changing. Going back many years, the expert review group, the Mental Health Commission and many others have recommended that it should change. I do not agree that this presents a risk or that people will not get the treatment they need. The assessment is based on what treatment they need and, if they need to be involuntarily detained to get that treatment, that can be done. It is not about risk but about treatment. It is really important that this be maintained. Otherwise, people are being deprived of their liberty based on something that has not happened but that potentially could and that is not right or fair.
Ms Estela Vidal:
Now that we are talking about language, I will take the opportunity to raise a language issue that has been brought to our attention by the people who use our services. I refer to the use of the term "mental disorder". There is no better way for me to explain what we think about this than to share with the committee a few testimonies. The person who provided one such testimony tells us that they think the term "mental disorder" is deeply damaging and disempowering to the person who is going through mental health difficulties or illness. They believe that this label does not allow autonomy with regard to a person's care needs. They had to do a Google search for the word and found the following definitions: "a state of confusion", "the breakdown of peaceful and law-abiding public behaviour" and "an illness or condition that disrupts normal physical or mental functions". This person does not believe that any of these definitions are helpful to them. They also feel that the label of a mental health diagnosis can be damaging and disempowering, that mental health recovery has to be person-centred and that the language around such recovery needs to be inclusive of the person rather than damaging to their needs.
Another person's testimony says that calling a person with mental ill-health someone who has a mental disorder shows poor judgment and that it can be very damaging to be given such a label. They believe the word "disorder" should be removed and that it is like the word "lunacy". They say the word is very aged and should be discarded immediately.
Dr. Michael Drumm:
I agree with that. What we are really looking for in this Bill is parity of esteem with physical health. We certainly do not refer to people as physically disordered. That would be offensive and it is the same for mental health. This is very simple and needs to be enshrined in the amended Act. There is no risk in involuntarily detaining a person who is suffering with significant severe mental health difficulties such as schizophrenia. The Act allows for that and the risk element does not need to be included to do that. It is nonsense to say that it is needed, that there is a risk such people will not get treatment or that they will be a danger to themselves and others. That is the case with regard to life-saving treatment relating to physical health and it should be the same for mental health. There is nothing about that in legislation on physical health. It is just in general law. It should be the same.
Ms Nicola Byrne:
To add to what my colleagues have said, Shine has a wealth of experience in fighting stigma and discrimination attached to mental health.
Our work with See Change and the volunteer ambassadors, as well as our human rights approach to mental health work, is contributing to a much-needed culture change in how the public think about, engage with and refer to mental health experiences. We advocate to eliminate language practices, as well as opinions and labels, that undermine the dignity of the person. We welcome the replacements already made in the heads of Bill, such as "patient" by "person" and "tribunal" by "review board". However, the people with whom we work question the use of the term "mental health disorder". There is consensus that it is degrading. There is a need to bring it in line with the UN Convention on the Rights of Persons with Disabilities, UNCRPD, Article 3 of which refers to non-discrimination, while Article 4 places an obligation on states: "To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities". This issue is also addressed in Article 14 of the European Convention of Human Rights, ECHR, relating to the prohibition of discrimination.
I thank our guests. I welcome the speakers from Shine and the Psychological Society of Ireland. We are near the end of this phase of pre-legislative scrutiny and the committee has heard from many witnesses in recent months, some of whom have contradictory opinions on certain aspects of the Mental Health Act. At our most recent meeting, we were joined by representatives of the College of Psychiatrists of Ireland who informed us clearly that it was important for the committee not to make general statements that the use of restraints and seclusion is bad. They are against the prohibition of those practices in the Bill. In its written submission, Shine stated: "These practices are not consistent with the prohibition of torture and other cruel, inhumane or degrading treatment." Should a ban on the use of restraints and seclusion be legislated for in the Bill? What are the reasons for that?
Ms Estela Vidal:
I thank the Deputy for his question. Seclusion and restraint are not consistent with the principles of the UNCRPD or the prohibition on torture and other cruel, inhumane or degrading treatment. The guidelines given by the UN Committee on the Rights of Persons with Disabilities are to eliminate seclusion and restraints. We understand the Mental Health Act was not designed to abolish these practices but, in the transition to eliminating them, we recommend a change in the language used in order to reflect, first, that these practices should be a very last resort, second, that they are only used in rare and exceptional circumstances and, third, that they are only used for the amount of time strictly necessary. We recommend the inclusion of definitions of "rare and exceptional" and "strictly necessary" in the Bill. I refer to Articles 14 and 15 of the UNCRPD. I will not read them out in the interests of time but Article 14 talks about liberty and security of the person and Article 15 talks about freedom from torture or cruel, inhumane or degrading treatment.
Dr. Michael Drumm:
I too will comment on that issue. I will try not to repeat what was said. All of the points made by Ms Vidal are exceptionally valid. From the perspective of the PSI, we are recommending that the Mental Health Commission develop regulations and codes in respect of seclusion and that breach of those would be an offence subject to a fine or conviction. If one wants to change the legislation to make it effective, that is what needs to be done. Section 69(1) of the Act governs the use of bodily restraint and seclusion. There is probably a need for seclusion and physical, medical and mechanical restraint but there needs to be clear definitions, rules and codes attached to those. They need to be used only as a last resort. In truth, the research mostly suggests their usage is usually due to the environment rather than the person. If the person has his or her own room or suite, it is a place to which he or she can go. It should be a calm and relaxing place to which he or she can go rather than being flagged as a punishment. That transforms the way it is seen and done. If there are rules and regulations attached to the usage, that makes sure it is done appropriately and not excessively.
In the second session today, representatives of the Mental Health Commission will appear before the committee. Has the Mental Health Commission developed or should it develop codes on restraints and seclusion?
Ms Estela Vidal:
I wish to follow up quickly because the role of Shine is to reflect the voices the of people who use our services. I will read another quote on this point.
They don't listen. They don't understand a person's situation. They think medication is the solution. But they don't understand the effects on a person. Weight gain, loss of drive for life and thoughts of suicide. I have been dragged from my home, put in a padded cell and not allowed use the toilet. I have been forcibly pinned down and injected against my will. They terrified me.
Ms Nicola Byrne:
Somebody else said:
At no point was my partner a threat to anyone but himself and the use of four Gardaí to arrive at his apartment (where I was briefly staying with him at the time), place him in handcuffs which sprained his wrist (as per his own doctor's assessment) and take him away to ... a Garda station where he was detained for several hours before being transferred to ... Hospital A&E department was extremely heavy-handed, aggressive, degrading and demeaning for both my partner and I when he should have been taken by ambulance to a mental health facility for treatment.
Ms Byrne met a number of people directly affected by the condition she just mentioned. How do they feel their voices were heard in this process? We have heard that some people feel they were excluded from the process through the use of language or through not getting notification that the process was happening.
Ms Nicola Byrne:
We just added on a survey this week to get up-to-date statements. It was very interesting to see the lack of awareness and understanding of the process and what is going on. After all, this will be an historic piece of legislation that will change the way people experience mental health services into the future. We would not need to address some of these issues if we talked about early intervention and community services. With the discontinuation of day services that were previously provided in the community by the HSE it is now vital that community and voluntary sector organisations are funded in a manner that enables them to provide a wider much-needed range of services. Funding and additional backing should also be provided for things like the early intervention in psychosis initiative to improve the long-term outcomes for people with experience of psychotic illness.
In Shine, following our work and experience, we believe the promotion of community support mechanisms at a local level can prevent mental health difficulties from becoming more complex. In this regard, we support the recommendation to include a provision for the right to community mental health services in the amended legislation. Based on the experiences shared with us by people who use our services, this would provide alternatives to inpatient facilities. It will also contribute to reducing the number of cases that evolve into more complex mental health difficulties. This is also raised in Article 26 of the UN Convention on Rights of Persons with Disabilities regarding habilitation and rehabilitation.
To quote some of our service users:
It is very important that addressing and educating all members of the community in ASIST, safeTALK and Understanding of Self Harm, that these tools may help someone who is ... vulnerable and unsafe and that the person who has the techniques and information can help and assist this person and be there as a trustworthy and kind person to listen...
Another person said,
The most significant finding I have always maintained is that there are a lot of instances where there is a specific benefit of treatment under the relevant health care scheme in cases where there is a breakdown in family relationships. For example, following a bereavement or in the case of an attempt to prevent the incidence of loss of life or the incidence of harm to an individual or individuals. In these cases, support in the community from a multi-disciplinary team is always a good idea.
Finally, somebody else said: "I want to impress on the government how effective community care is to individuals with mental health conditions and hope these services will be made available to all who need it."
My next question is for the representatives from the Psychological Society of Ireland. We have seen recently that CAMHS in South Kerry seemed to rely on an ungoverned medical model because of the lack of resources - not just psychological services but also, as we have mentioned, multidisciplinary teams. That does not just apply in South Kerry CAMHS but seems to be endemic across the system. I agree that the move to social and psychosocial interventions is key.
What barriers might stop this happening? I met the witnesses and members of this society before about the lack of training resources for trainee psychologists and particularly educational and counselling psychologists. If they elaborate on that, it would be perfect.
Dr. Michael Drumm:
I am very happy to answer that question. We have a colleague in another room nearby articulating that at the education committee meeting. There is a need for mental health resources, and not just psychology, across the entire country. It is difficult to recruit and it is very hard to get resources and posts. We need more of them.
In the past there was predominantly a medical model for mental health but that evolved into a medical and psychological and then a social model. That was considered a triangle, with the medical element at the top, and over time it became a flatter line, with medical at one part of the line, the psychological element at another and the social element at another part. In fairness, it is now an upside down triangle, with the medical and psychology on one line and the social element at the top of the triangle. It may even be a line with medical at the bottom, psychology is in the middle and the social element is at the top.
On the question of mental health and effective intervention, the Psychological Society of Ireland believes that social and psychological interventions must be provided first. It is what the World Health Organization and the NICE guidelines for excellence recommend. This must be done as a first line of action. There must be parity across the elements for the process to work.
The south Kerry look-back review was terrible and really concerning. We all read that with shock and disappointment but we were not surprised. The problem is likely to be much wider and greater than what has happened in south Kerry. Even the helpline phone calls came from well outside south Kerry in that regard.
Dr. Michael Drumm:
It is a concern and there should be a review. It was a governance issue relating to psychiatry but it was also a governance issue relating to the team and the wider service in south Kerry. The point of our opening statement was to allow that governance to be shared so everybody is in the boat together and everyone is responsible. Everyone is responsible for their role and it should be clear what people are supposed to do. People must be held accountable rather than only one person being held accountable for someone else, which is not practical and would not stand up in legislation.
I do not wish to pit one group of psychologists against another. I would not do that. There seems to be a discrepancy in the amount of resources for clinical trainee psychologists and educational and counselling psychologists. Is there a way of bringing them in line so both can have parity and the same chance of getting qualified?
Dr. Michael Drumm:
Our psychological society has advocated for many years now that there would be parity between educational counselling and clinical psychology. The professionally trained psychologists who work should have parity. There is one group that is funded and supported to train but the other is not, which is not fair or right. We have a significant resource issue in psychology and we need as many psychologists as we can get. We have always conceded that there are never enough psychologists in the country and there never will be enough to provide for all the psychological needs of the population. However, it does not have to be all about psychology; we are very generous and happy to share. This can involve clinical nurse specialists, family therapy-trained social workers, play therapists or other nurses. It can involve occupational therapists and social workers, as they all play a part in the intervention for mental health difficulties. It is the same with our colleagues trained in educational and counselling psychology.
Dr. Anne Kehoe:
I thank the Deputy for highlighting that difficulty around parity of funding for training. As Dr. Drumm states, the Psychological Society of Ireland has advocated for a long time on that and we hope to see a big change in future with funding for educational and counselling psychologists, given the amount of service that is needed.
There is the idea that 24-7 mental health services are required in the community and the nature of the service provided has to be considered carefully. Currently, most out-of-hours crisis care is provided in the medical model by medical staff, including psychiatry, nursing and GPs.
That really perpetuates the medical model for anyone presenting in a crisis out of hours, whether it is at night, at the weekend or in the early hours of the morning. Really, people should first have access to psychological support that is appropriate and central in their care delivery.
On that point, Dr. Kehoe is preaching to the converted. One of the big gaps in service is the lack of 24-7 emergency access to mental health treatment. There are a couple of pilot projects being run in County Galway at the moment. They seem to be working well, which is welcome. I know that a pilot will also be launched in Limerick later this year that involves An Garda Síochána. Teams will meet people in the area who are having a mental health crisis and, hopefully, triage, treat and refer them on to the appropriate services. I agree with Dr. Kehoe completely on that.
I thank the witnesses for coming in today. I welcome that they have talked about moving away from a medical model. I firmly believe that is right. The witnesses have all touched on the issue of funding. I believe that a number of years ago around €10 million was going into psychological services and therapies and whatever, and over €400 million was being spent on medicines. There was definitely an issue with that.
I want to touch on two issues. One is that of advocacy, which plays a huge part. I do not think there is enough publicity around it. From personal experience over the years, when somebody is in crisis - I suppose this is a cliché but we are a very reactive society rather than a proactive one - we panic, and families do the same. As the witnesses mentioned, gardaí are then unfortunately the first to be called. Again, we are reactive in that. It is very traumatic for the patient or individual involved, and it escalates the problem. Each and every one of us sees such incidents every day. Mental health issues are going to get even worse coming out of the pandemic and given what is happening at the moment. Many people are going to be very disturbed and unwell, given the events in Ukraine as well.
Looking at the Irish model, advocacy would be my number one priority. I agree with the witnesses that members of the public complain. However, it is about trying to get the model into legislation to make it part of the pot. As I said, there should be no competition between psychology services and the clinical lead. All services should be part of a team, but it does not seem to be that way. That is what makes it very frustrating. I had the honour of sitting on the Joint Oireachtas Committee on the Future of Mental Health Care a number of years ago. It was a cross-party committee and members signed off on an agreement eventually. It may not have been perfect, but it was moving in the right direction. I am back here listening to the witnesses today. I actually wrote down the following question. Even if the Bill passes in its entirety, with 99.9% of what people advocated for, how confident are the witnesses that it will actually be enforced? I am saying nothing now. I am using the word "enforced" because somebody is going to have to be accountable and take responsibility for it. If this Bill is passed in its entirety, who is going to enforce it?
There are also issues with how services will be staffed, because there will be multidisciplinary teams. In a few committee meetings it has been mentioned that if there was a premier league of CAMHS teams, there would probably be three matches a year, out of a total of 25 teams. That is a fact, because the teams are not resourced. There could be 11 players on one team, seven on another and nine on a different team. When I hear about this whole-time equivalent, it drives me mad.
I also want to touch on the issue of early intervention and community services. That is why I asked the witnesses about whether they have confidence in this Bill. The Chairman will be very aware of what I am about to raise. At present, in my area there is a mental healthcare centre that has long-term respite and short-term respite beds. It is in the community. The majority of its residents are long-term patients. They are totally integrated into the town. In my opinion, because the building is not suitable, the HSE has decided that it is easier to shut the whole lot down and move all these people out. We are being told that we will not need these services again. That is why I asked the witnesses about how confident they will be if the Bill is passed. We have a centre with a model that has worked for years. It serves a huge population and there is a wonderful team of staff in it.
Yet, because of failings within the HSE, which did not maintain the building, it is easier for it to shut down services. Mentally, it is still systemic within society that if people try to change something, there is resistance to it. Regardless of whether or not something is working, people have no power to say that something is inappropriate, is against European law or is a human rights issue.
First, if this Bill were passed in its entirety, and even if it were perfect, how confident are the witnesses that it would be actually enforced? Second, I am very interested in the independent complaints mechanism. As was said, most people in these scenarios do not have a voice and do not realise what their rights are. Restraint was mentioned. Should there be a separate paragraph on that stating the rules to be followed, what must be done first and that there must be an independent group that can assist the patient and the family? Nobody knows what is going on. There is the over-reliance on medication as a form of sedation or restraint. We are talking about all these issues but the first thing we will hear when we leave this room is that we have a problem with recruitment and retention. I am a firm believer that we have one of the best educational systems in the world. The Irish people are very empathetic and passionate about what jobs they go into. The majority of these people went into these jobs because they wanted to do something and to make a difference in society.
I wish to ask about getting proper funding. The witnesses all mentioned funding, funding, funding. I remember that in 2018, I think, we asked the CHOs how much was spent on mental health services. It was over €1 billion, yet they could not tell us where they spent it. Then what happened? They shut down the Owenacurra centre when we wanted accountability. That was handy. I will not dwell on that too much.
I am very interested in the model of early intervention community services. That works and is being supported yet there are failings from one entity to another. How can they be made responsible and accountable for their failings so patients do not suffer? I go back to my first question. If the Bill were passed in its entirety tomorrow, would the witnesses have confidence in it actually being pushed forward?
Ms Nicola Byrne:
To quote Einstein, if you always do what you always did, you will always get what you always got. If we do not have this in legislation, we will not bring about the culture change that is needed at this time. We have ratified the UNCRPD and we need to be compliant with it, embedding that way of thinking.
To talk to the Deputy about culture change and resources, the original recommendations from the review of the Mental Health Act appear to promote a more recovery-oriented approach to treatment. That coincided with the development of Advancing Recovery in Ireland, which subsequently evolved into Mental Health Engagement and Recovery. It is important that the objectives of these initiatives are embraced throughout the mental health services and that the current model of care is developed to endorse a more recovery-orientated approach to treatment and service delivery. As mentioned in our opening statement, Shine welcomes the paradigm shift from best interest to guiding principles. A lot has been done, but there is a long road ahead of us. Our service users say that mental ill-health is very misunderstood and that it takes time and compassion to treat. They stress need, not medication-only treatments. One of our service users said he thought the heads of Bill were more progressive and more in keeping with the rights and preferences of the individual but asked whether mental health services would be sufficiently funded and resourced and how they would operate. As for resources, another service user said there were staff shortages in his mental health hospital and a very heavy emphasis on clozapine, which did not suit him and caused other physical issues, for which he required treatment.
Another service user said that the number of beds in a public psychiatric unit are so limited that clients end up being released from hospital even when they are not fully recovered in a bid to free up a bed for someone else. It can look a bit like a conveyor belt in a psychiatric unit where the staff are completely overworked and as a result cannot offer more individual time with clients.
Deputy Buckley mentioned individual complaint mechanisms. People who access the mental health services should be provided with the opportunity to express their views and opinions in a manner that is constructive and accountable, with appropriate follow-up and responses. Evidence shows that the Your Service, Your Say complaints mechanism has not been fully satisfactory. Shine welcomes the new provision for a dedicated independent complaints mechanism in a format and language that the person can understand. This mechanism must be separate from and independent of those already in place by the HSE.
Dr. Michael Drumm:
I will add something to that as well, please. I remain hopeful that it will make a difference. Looking back at the 2001 Act, it was an improvement and, in fairness, made a significant positive impact but it is just not good enough and it needs to be changed.
Legislation is the benign dictator that shapes behaviour in a way that is appropriate and one hopes that resources follow. That is so much better. We have had A Vision for Change and we have had Change for the future – A Vision for Change ‘refresh’ in 2020 with an expert review group looking at it. We also have a team working document which the Mental Health Commission produced in 2010 which does not have the same clout, influence or ability to shift or nudge services in the right direction. This legislation does that. I remain exceptionally hopeful that that is exactly what it will do. We have to do that. It is about changing the culture and that legislation does that in a way that nothing else does.
Ms Estela Vidal:
Just to follow up on a point on this as well and to answer the Deputy's question as to whether this is actually going to happen, we want to hope that it will. There are accountability mechanisms from both directions. We work with and provide spaces for people to place their demands, emotions, their suggestions and their recommendations. It is not only us but there are many civil society organisations across Ireland who provide that space and there are great networks there. There is Mental Health Reform and Mental Health Ireland who are doing ongoing work on this. They have been doing consultations all along since this process started.
These spaces are key because we are hoping that when this information channel is up and running and this piece of legislation is passed, these groups are not going to stop. That kind of monitoring work will be ongoing. We cannot forget that which will also come from the top. We cannot stress enough today how important the ratification of the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, is and the commitments that come with that ratification. These are setting the basis for a number of the changes that have already been suggested in these amendments. We cannot emphasise enough the human rights approach of mental health services. After that ratification, such an approach is no longer a choice but is a shared responsibility.
One can make the cake but one cannot eat it, which is the issue here. This is why I asked Ms Vidal to begin with a comment on this Bill, by asking her whether that optional protocol has to come in. There are major issues there because as we discuss a mental health Act here, the simple act of a county council putting down footpaths will mean that they will have to be wheelchair accessible, because it is rights-based. If we were to strengthen this legislation now, would she be mentioning this aspect? The minute that this Bill is passed and enacted, does the optional protocol have to be signed and adopted?
I will, very briefly, as I did not think that I would have an opportunity to do so. I will return to what we were discussing earlier on and the different opinions of witnesses who have appeared before the committee, and even such differences between the Minister of State, in fairness to her, and the HSE. I wish to discuss the issue of the reappointment of a national director for mental health. Have our witnesses an opinion as to whether that post should be reinstated or do they think what is there already is working?
Dr. Michael Drumm:
It should be reinstated, yes.
To have influence at that level is significant. I think it was exceptionally helpful. Who one picks is important, but that is not within my gift. It is very important because someone who has worked on the front line is able to advise. It makes a huge difference. However, we need to be careful that we do not privilege one profession over any other. There needs to be parity of esteem. I agree it should be reinstated but the nature of it, who is appointed and the job description - what the person is expected to do and who he or she is supposed to link in with and represent - are very important.
We are in a bizarre situation now. In fairness to the Minister of State, she is calling for the reappointment of the national clinical director for mental health and the HSE is putting up barriers left, right and centre. It is very reluctant to make this reappointment. Leaving political stuff aside, I am on the same page as the Minister of State on this one. I support her 100% on that. It should happen.
My first questions are for Shine. I am not sure whether other representatives would like to come in as well. Are the representatives of Shine aware of any other jurisdictions implementing any restraint policies and how they work? Do they have any idea of where this is happening?
Ms Nicola Byrne:
That is not our area of expertise, but we see that countries are moving towards zero tolerance at a different pace. However, everyone is aiming towards zero use of control and restraint. The guiding concept is that we move towards zero. All efforts should be made not to have to use it. It should not be seen as an option on a menu but as a practice of last resort. How do we get there? That is the more important question in that, in the vast majority of cases, we should never have to use it. If we had proper early intervention services and properly resourced community services, and if people and their family members were part of a conversation, we would not be in a situation where so many people rely on involuntary admission and control and restraint.
Has the Psychological Society of Ireland discussed the viability or desirability of having professionals, other than consultant psychiatrists, in the role of clinical lead with other professional bodies? Does that make sense?
Dr. Michael Drumm:
We link closely with professionals across all the teams, including psychiatry. Social work, nursing, occupational therapy and speech and language therapy are embedded on the teams as well. My understanding is that the line the Psychological Society of Ireland has taken on clinical governance is supported by all but one of those.
Dr. Anne Kehoe:
It is a long road. It involves approximately ten years of college. The person does a primary degree in psychology. The average person would then do a master's degree, probably for two years. After that, one might work as an assistant psychologist in a front-line service which is now, thankfully, paid. It is a small amount but there are posts such as that. One then applies to do a doctorate in professional psychology. The doctorate would be in clinical, educational or counselling psychology. That is a three-year course where one works in six placements in different areas of the HSE. One would certainly do so for a doctorate in clinical psychology. Some applicants might have a PhD and others might have worked for ten years as a social worker. We have a wide range of people. We welcome people from diverse backgrounds or those who have significant life experience because it is a very powerful and important job. We make a difference in many people's lives. People need to be up for that on the front line. One then completes a doctorate in one of those training courses. As Deputy Ward was saying earlier, one of those is funded. The doctorate in clinical psychology is funded nationally and the other two are not.
People pay to do that professional doctorate. This means they are often paying to work for free, for three years, at the front line of the health service, delivering interventions to people who have significant, mild, moderate or severe mental health problems or difficulties. They then qualify with their doctorate in a professional area of psychology and take up a role in a range of different settings, such as schools, the health service and private practice.
Dr. Anne Kehoe:
Absolutely not. There is a huge bottleneck and hundreds and hundreds of applicants across the country. We have five clinical psychology courses, two educational psychology courses and one counselling course. There is a massive bottleneck. The same is mirrored in services for young people and families and adults trying to access interventions at the level of clinical psychologist.
That is not to say that everybody needs to see a clinical psychologist. Many people are very happy with other levels of intervention. However, the number waiting to see clinical psychologists is absolutely shameful. That someone in a moderate to severe mental health presentation has to wait two years to see a clinical psychologist is wholly unacceptable.
We need more funding for all of those training courses, for some of them in the first instance and more for the others, so that we have more professionals trained who can deliver those interventions and supervise other kinds of professions and other disciplines to deliver similar interventions.
Dr. Anne Kehoe:
There is a huge move under way across the universities to think about many different ways to encourage people from diverse backgrounds or with diverse interests and those who have experience in those areas to apply for the courses. There are major changes taking place at that level to change basic awareness at undergraduate level. This is being done through visibility, by highlighting people with those diverse aspects in the profession and showing them front and centre. We need that. Professional psychologists deliver for the people they work with. If you do not see yourself represented at that level, then why would you come? We have many issues and we are working very hard on them. Lots of colleges are making major changes and reforming their interview practices and application criteria. I am delighted to see that. I think more change will come.
Dr. Michael Drumm:
We are driven to be exemplary in that, given our training and experience. We try to do it as best we can. It is on selection criteria and interview and it is encouraged. Psychology is probably one of the top three undergraduate courses applied for among leaving certificate students. The points are astronomically high for the course. The places dictate that, not the stuff that might be needed to get it done. That is a bottleneck and, as Dr. Kehoe said, there is also a bottleneck at the professional level. People might do a master’s degree, work as an assistant psychologist or apply for a doctorate in counselling psychology in Trinity College where there might be 150 applicants. Those who get an interview bring that number down to 50 and the number of second round interviews might drop as low as 28. The university will offer 12 places. As such, we can see where the bottleneck is just getting tighter.
We get many overseas applicants from the UK and all over Europe. They come in and get a statement of equivalence to work here from the Department of Education. That is a significant part of our work and our workforce as well.
We need to increase places and funding so that it is equitable. That funding does not need to come exclusively from health; it needs to come from education, justice or wherever those people will ultimately work. There needs to be a shared cross-departmental solution to that. The burden cannot fall to health to do that.
Ms Nicola Byrne:
Eleanor Roosevelt said:
Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person...
I am looking forward to a culture shift where we talk about and live person-centred care. The content of the legislation and the job members have are a huge responsibility.
We ask members to bear in mind the people at the end of it who will experience this, and that could be me or members. It is important to keep it at that level, to realise there is not an otherness to this opportunity. This is about us, how we are viewed and how we experience our world.
Ms Estela Vidal:
I agree with that. I would be excited to see a much stronger focus on human rights in the new legislation. We are aware there have been many different narratives at this table and now the committee has the hard work of making sense of all of them. The truth and the best approach always lies in between all of that. The committee has the hard work of selecting what to bring forward and what to leave behind. A very strong message from Shine and from the people who use our services is the importance of that human rights base because it protects their rights as persons.
To give an example of that, we had a powerful testimony from a person who spent quite some time in treatment in an inpatient facility. She said when she was in that facility she was not feeling well. Patients' self-esteem is low, they do not have their stuff, they do not have their friends, and then they are asked to be in a queue to collect their medication. She said how different it would have been had somebody come to her in a private space to bring her that medication. That is what this is about, that change in the approach to the person. That is going to happen in the little things and of course in the bigger things such as legislation. That is what I am excited about.
Dr. Michael Drumm:
I am most excited about that parity and that the people who will be dependent on the Act will be at the centre of it. I like the idea of guiding principles within the Act that allow for a clarity to be provided to help with its interpretation and enactment. That is a helpful way of getting around some of the very difficult situations and the conflicting advice the committee has received. It is probably the nicest way of doing it. It is not moving away from the medical model; it is bringing in the psycho and the social. It incorporates that into it rather than it being predominantly an illness or medical approach. We know that if a person is in crisis and is seen, then automatically, straight away there is relief. We know that even with physical health, the moment a person is seen, even if he or she is in great pain while waiting to be seen, that person automatically starts to feel a little better. We want to make sure that is available to allow that to happen in a way that is helpful. I remain exceptionally hopeful the Act will do that but it needs to be a bit brave. We need to make decisions then, and while not everyone is going to be happy and we do not expect to happy about it, as long as the decisions are made in regard to the individual who is using the service, everything else naturally falls out of that. As long as there are guiding principles based on human rights, everything else is okay.
Good morning. Everyone is welcome to the meeting. I welcome from Mental Health Reform, Ms Fiona Coyle, chief executive officer, and Ms Ber Grogan, policy and research manager; and from the Mental Health Commission, Mr. John Farrelly, chief executive, Mr. Gary Kiernan, director of regulation, and Ms Orla Keane, general counsel.
Members and witnesses are again reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of a person or entity. Therefore, if statements are potentially defamatory in relation to an identifiable person or entity, the speaker will be directed to discontinue his or her remarks. It is imperative that he or she comply with any such direction.
I call Ms Coyle to make her opening remarks.
Ms Fiona Coyle:
Ba mhaith liom buíochas a ghlacadh leis an gCathaoirleach agus le baill an Choiste as an gcuireadh teacht in bhur láthair inniu. I thank the Chair for inviting us and for the introduction.
Mental Health Reform is Ireland’s leading national coalition on mental health, with over 75 member organisations working for progressive reform of mental health services and supports in Ireland. We are appreciative of the opportunity to appear before the sub-committee again on behalf of our member organisations. We take this opportunity to reiterate the historic importance of this once in a generation opportunity for positive change in our mental health legislation. We thank members of the sub-committee, sub-committee staff, the Minister of State, Deputy Butler, her officials and all who have engaged with the comprehensive pre-legislative scrutiny process to date.
We would like to highlight three priority areas that have been discussed over the months of pre-legislative scrutiny. Regarding Part 8 and children and assisted decision-making, in particular under 18-year-olds admitted to adult inpatient units, head 128, section 108, which deals with the admission of a child to an adult approved inpatient facility, allows for the admission of those aged under 18 to adult facilities. In its 2020 annual report, our colleagues in the Mental Health Commission showed that there were 27 admissions to nine adult units during that year. The commission also reported that there was 0% compliance with the code of practice of admission of children to approved centres. The committee has heard some arguments as to why this provision should be kept. We again state that such a provision is contrary to our obligations under the UN Convention on the Rights of the Child, UNCRC, under which the State will be reviewed later this year. The reasons for keeping this provision are unacceptable to our members and we again call for the prohibition of this practice.
Regarding assisted decision-making, we have extensively highlighted a lacuna between the heads of the Bill and the Assisted Decision-Making (Capacity) Act 2015. We appeared before the Joint Committee on Children, Equality, Disability, Integration and Youth during its two-day pre-legislative scrutiny session on the updating of that Act. The provisions of the Act must be extended to 16- and 17-year olds and also must be extended those involuntarily detained under Part 4 of the Mental Health Act and the Criminal Law (Insanity) Act. The report of that committee is, I understand, currently being finalised. We urge committee members to liaise with their counterparts on that committee and relevant Department officials to ensure there is congruence between these important and interlinked pieces of legislation.
The second area I would like to highlight is Part 6 regarding coercive or restrictive practices, on which there has already been some discussion. Recommendation 92 of Sharing the Vision, our national mental health policy, makes a clear commitment towards a zero restraint and zero seclusion action plan. We fully support the move away from coercive practices. The evidence is clear that this can be done, including through improved training in de-escalation techniques and having more trauma-informed care. Article 14 of the UN Convention on the Right of Persons with Disabilities, UNCRPD, specifically states that disabled people, including those with psychosocial disabilities, shall not be deprived of their liberty. However the State, when ratifying the UNCRPD in 2018, made a declaration on this article and a reservation to continue to allow compulsory care. We ask the committee to recommend that this reservation should be removed and the true spirit of Article 14 be respected and upheld. We also ask the committee to examine the lacuna around the deprivation of liberty safeguards, which would be vital to the legislation.
Regarding an independent complaints mechanism, since 2014 Mental Health Reform has highlighted the need for an independent complaints mechanism. We note that the expert group did not recommend an independent group for making a complaint in the 2015 report. Decision support services, which are stand-alone services located within the Mental Health Commission, provide support on decision-making and investigate complaints on decision-making for people with mental health difficulties under the 2015 Act. However, this is narrow in remit and solely applies to complaints around decision-making, which may limit the scope of the sort of complaints that can and will be investigated on behalf of service users. As mentioned, the 2015 Act does not provide for those detained involuntarily or detained under the Criminal Law Act or those aged 16 and 17. This is a worrying lacuna, and is discriminatory and must be remedied.
In contributions to our ten-year anniversary conference last week, the need for an independent complaints mechanism was highlighted by a number of speakers. We reiterate this important call and ask for this to be included as a recommendation in the committee's report. We also ask that the committee call for the ratification of the optional protocol of the UNCRPD.
In conclusion, in the 1940s one in every four people in Ireland was living in an institution.
That is not very far back in our past and the implications of that dark history remain embedded in our society and culture today. The stigmatisation and siloing of mental health difficulties, and severe and enduring mental health difficulties, in particular, continues to permeate throughout the services.
This process and the insight of the committee members are warmly welcomed in stepping towards the future. To bring about real change for people who access our mental health services, we need a cultural shift as well as legislative reform. The time is now and the opportunity lies with the committee members. We very much look forward to the discussions today and, once more, go raibh maith agaibh for the committee's time.
Mr. John Farrelly:
The Mental Health Commission welcomes the opportunity to speak to the committee again on the general scheme to amend the Mental Health Acts. I am accompanied by Gary Kiernan, director of regulation, and Orla Keane, general counsel for the commission. The commission is an independent statutory body with the principal functions to promote, encourage and foster the establishment and maintenance of high standards and good practices and to take all reasonable steps to protect the interests of persons detained in approved centres. The remit of the commission was extended by the Assisted Decision-Making (Capacity) Act 2015, which provides for the establishment of the Decision Support Service, DSS, for adults with capacity difficulties.
The commission adopted a practical, person-centred and rights-based approach when reviewing the heads of Bill and making its submissions to the Department of Health and this committee. The commission seeks to ensure parity for persons with mental health issues and believes this general scheme seeks to do that in a number of respects. The commission also wishes to ensure we have a primary focus on care and treatment, not on risk and coercion.
The commission acknowledges and agrees with the arguments made by several parties that the proposed amendments shall require additional time and resources, but we reject this argument as a reason for not making the changes. Mental health services have not been given the priority that they require. The time for change is now and we hope a recommendation can be made that significant investment is required at all levels of mental health services to ensure a fundamental change in how these services operate and benefit those who receive care and treatment.
I want to touch on what we perceive are some of the key issues raised during the pre-legislative scrutiny to date, the first being the proposed new criteria for involuntary detention. The commission wishes to note that this is a very complex issue and it needs to be considered in the context of various other sections of the general scheme, and we can speak to that if required. The commission notes the issues raised by various other parties, to include the medical practitioners, and we are happy to support and-or advise the Department, where required, in regard to discussions with these parties to ensure clarity and understanding and to ascertain if there is a way forward that works for the person at the centre of the process and the related parties.
The commission remains strongly opposed to any proposal to introduce an intermediate category of patient. We believe this proposal would infringe the rights of service users. These provisions were suggested by the expert review group to fill a gap that existed prior to the Assisted Decision-Making (Capacity) Act but as that Act hopefully comes into force and will address the issue of capacity, these requirements no longer need to be addressed in the 2001 Act. In fact, we believe these new provisions would undermine both the 2001 Act and 2015 Act and fundamentally change what is the intention of both pieces of legislation. The inclusion of these provisions goes against the objective of what we are trying to achieve as a country in terms of parity for people with mental health issues.
With regard to the extension of the Mental Health Commission’s remit to deal with complaints, this matter was considered by the executive and the board of the commission and, following this, we communicated with the Department of Health and this committee. We do not believe the commission should take on the role of a complaints body, given its key functions as the regulator of mental health services and the administration of the mental health tribunals. In fact, we query why there is a need for a different process for dealing with complaints relating to treatment of mental health issues as opposed to treatment of general health issues. This would appear to go against the principle of parity which both the commission and the Department are seeking to attain. The commission is conscious that anything that seeks to differentiate those with mental health issues could be seen as a regressive step.
Currently, each approved centre actually has a complaints procedure. In the HSE there is the “Your Service, Your Say” mechanism and there is also a mechanism to seek a review of the care and treatment, where required.
If a person is not satisfied with the process provided by the services, he or she can refer certain matters to the Ombudsman. Consideration might be given to extending the Ombudsman’s powers to deal with matters concerning clinical issues. The commission understands that there have been discussions between the HSE, the Department and the Office of the Ombudsman on this matter. Furthermore, issues relating to staff are either dealt with by the approved centres’ own policies and procedures, regarding obligations and duties by way of their contract, in respect of the code of conduct, etc., or people could be referred to their professional bodies. It is important to understand that under regulation 21 of the approved centre regulations, the inspectorate team examines whether complaints are being dealt with appropriately, and if there is a concern this is addressed with the approved centre. The centres are required in law to be in compliance with the regulations. This process could be strengthened through revision and expansion of regulation 21, and, more generally, through a review of the approved centre regulations.
Turning to applications for involuntary detention to be made by authorised officers, the commission agrees with the recommendations in the expert group’s report and the Department's proposal, as contained in the general scheme. We have raised concerns that up to 30% of applications are being made by An Garda Síochána. People suffering the distress of significant mental health issues should not be met by An Garda Síochána, but by appropriately trained and skilled personnel. The expert group consulted with various parties to include the HSE in 2013 and 2014, and was told by the HSE that it proposed to increase the number of authorised officers. The commission reviewed this aspect in 2021 and we noted this increase does not appear to have happened.
In its submission to the Department, we stated that to ensure that this amending legislation works, funding will be required for the HSE to ensure that a 24-7 service, 365 days a year is available throughout the country. The service must also be available for all approved inpatient facilities, public and private. The current regulations relating to authorised officers will need to be amended to redefine the professional requirements for someone to be appointed an authorised officer and to specify the assessment tool criteria to be applied by the authorised officer when making an application. Consideration must also be given as to whether the commission should be able to audit or inspect this part of the service to ensure that it is in fact vindicating and safeguarding the rights of persons. The commission rejects the resources argument made by some parties for not proceeding with the amendment. The commission welcomes and wishes to reiterate that the substantial changes proposed with regard to children should be pursued and introduced as the current provisions are hopelessly inadequate. I thank the members of the committee for listening and we are happy to answer questions.
I thank all the witnesses. As they are probably aware, we are at the end of this phase of our pre-legislative scrutiny and of hearing from witnesses. During this process, we have received many different and contradictory opinions. Having these witnesses at the same meeting is a good development, because they have different opinions on various aspects of this proposed legislation.
On that note, I wish to tease out some of those differences. Taking the last statement made by Mr Farelly, in respect of the commission wishing "to reiterate that the substantial changes proposed with regard to children should be pursued and introduced as the current provisions are hopelessly inadequate", I ask him to expand on that and explain to us what changes should be introduced. Would these include the prohibition on admitting children into adult facilities? Regarding mental health reform, what safeguards could be put in place to stop this practice occurring?
Ms Orla Keane:
The first point to make is that there is a new Part. Equally, the commission made several recommendations in this context. My colleague, Mr. Kiernan dealt with the issue of having children only detained in child centres. This, however, comes back to the resourcing argument. If the proper facilities were available, then children would not need to go into adult facilities. Therefore, the key issue is that more funding is required to ensure there is true parity in the mental health services.
The new Parts in the legislation include things like separate provisions for children under 16, and 16 or 17 year olds with mental health issues being treated in parity with 16 and 17 year olds with general health issues. It is also very important that statutorily required information be given to children who are 16 and 17, which is not in the Act, and that the provisions for mental health be separated from the childcare legislation. Currently, it is a quagmire going through section 25 of the Act and trying to cross-reference all the various sections of the childcare legislation. Everything should be included in the mental health Act, with everything a parent or guardian needs to look at clearly set out. There should be specific codes of practice about user guides that must be provided by approved centres. In all section 25 applications for involuntary detention, children should have the right to access to legal representation. That will be a new provision. We set out a number of these provisions in our previous statement to the committee in November. I will ask Mr. Kiernan to respond on the specific issue of children being detained in adult centres.
Mr. Gary Kiernan:
Thankfully, the admission of children to adult centres has decreased dramatically in recent years. It used to be hundreds of children every year and, as has been pointed out, it was 29 last year. Of course, everyone wants children to be appropriately admitted to a children's centre with the appropriately skilled staff, arrangements and resources in place. What we see in the Mental Health Commission is that these admissions tend to be at weekends when resources and children's emergency admission units are not available. This is the recourse people have out of hours and at weekends when they are in desperate situations. As far as the regulator is concerned, we follow up on each and every admission of a child to an adult unit to understand the circumstances of why that occurred and what could have been done differently, and to ensure the appropriate supports are in place to reduce and prevent further recurrence. As a regulator, we would highlight that these instances have dramatically reduced in recent years and the figure has been at the same level for the last three or four years.
Mr. John Farrelly:
I would make one final point about this Bill that should not be forgotten. The expansion into community services over the next ten years is key. We need to do that in Ireland. Children are going into units, being detained, being at risk and all these things are happening because we do not have early intervention services in place 24-7. I am not sure everyone realises how much work we have to do. I like this Bill because it sets out that we will be regulating community services and over the next ten years will put them in place to stop this constant sharp edge of people being admitted into units.
Ms Fiona Coyle:
I agree with everything that has been said. Mental Health Reform acknowledges that there has been huge progress in this area. It is fair to say that everyone agrees this should not happen, and we are moving towards a situation where it should not happen. We urge the Government to be ambitious with this legislation. By having this provision specifically within the Bill, there would be an additional legal duty on the Government to ensure the resources are available and so we as a State can say this is no longer acceptable and should not happen under any circumstances. If we really believe we are moving towards a model where it will not happen, we should enshrine that within this legislation.
We support the current processes for the reviews that take place and the data that are regularly published by the Mental Health Commission. Separately, we call for additional resources and recognise that this is very much a resource issue.
I have a follow-up question on that for Mr. Farrelly. I agree that legislation should not be led by resources. Legislation should be put in place and resources should follow to make sure the legislation is properly implemented. On that note, does Mr. Farrelly believe a prohibition on placing children in adult facilities should be enshrined in this legislation?
Mr. John Farrelly:
I will give the Deputy another angle on it. There could be unintended outcomes from that. If we step back and look, for example, at our general hospitals, there are large numbers of children in our general hospitals who need to be admitted to mental health facilities. I would also worry that young adults, those aged between 15 and 17, would suffer by not having any facility at all. I would rather see people treated in some facility than receiving no treatment at all. The bottom line is that we do not have the facilities to treat them so by enshrining that in the legislation, we could have unintended outcomes. The children who need care will end up in general hospitals, potentially, and I would worry about that. The counter argument, of course, is that if we enshrine it that will force the State to put the facilities in place. That is the balance that we have to think about.
Ms Ber Grogan:
On that point, the numbers have been reducing but it is an obligation under the UN Convention on the Rights of the Child that we stop the practice of admitting children to adult units. We are due to appear before the UN committee on the Convention on the Rights of the Child this year. The State has to report back on what it is doing. The State's draft report from last year does speak about the reform of the Mental Health Act as the legislation that is being brought forward to remedy this, so we are either remedying it or we are not. Mr. Kiernan spoke about an ideal world and this is our opportunity to legislate for an ideal mental health service. This is the once-in-a-generation, historic opportunity to put the legislation in place and then the State has to meet its obligations with the resources.
The Mental Health Commission's reports are so detailed and there is a huge amount of information there. Kerry hospital was the one with the highest number of patients under 18 admitted to the adult unit. Sharing the Vision discusses the move from children's mental health services to adult mental health services for those aged between 16 and 25. Now we have an opportunity to say that there must be age-appropriate facilities for young people, children and adolescents, when they are in crisis. If we specifically prohibit it now in this legislation, the State will have to do something.
I agree with that. I do not think legislation is a panacea for everything. Only last week we heard about the children who were failed because they could not get an assessment of needs within six months, as per the Disability Act. There is legislation in place for that but it did not happen. That said, including it in the legislation will put pressure on the Government to make sure provision is made. I agree with Ms Grogan on that.
I feel like I am starting rows here today because my next question is on an issue about which the witnesses are contradicting each other. Mr. Farrelly spoke about the independent complaints mechanism at a previous committee meeting and referred to it again today. He said that he did not think it was warranted in relation to mental health treatment. However, in its opening statement, Mental Health Reform refers to the fact that it has been highlighting the need for an independent complaints mechanism since 2014. As I said, there are contradictory opinions on this. I ask both groups, starting with the Mental Health Commission, to explain the rationale for their stance on an independent complaints mechanism. I also ask the representatives from Mental Health Reform to touch on whether it goes against the principle of parity between physical and mental health.
Mr. John Farrelly:
The Mental Health Commission is the statutory body required to oversee mental health services on behalf of the Sate while Mental Health Reform is an advocacy group. We come from different positions. My position would be that we should not establish something that accidentally makes one group look unique and in need of extra in comparison with everyone else.
The bottom line is that there are independent complaints processes. If you go into a general hospital and something happens, you complain. The core issue is that people are worried. They obviously do not seem to have confidence in the HSE complaints process. As we set out in our approach, there are lots of mechanisms to complain about people as a profession if you are not happy with how they do it, or there is the complaints process in the HSE, and then on top of that, the regulator. Something that the committee could do is strengthen the regulations so that we scrutinise how the complaints happen. That would mean that in a number of years time we would have data to inform another decision.
The third point relates to the Ombudsman. If people make complaints in a certain area and they are not happy with how something is done, that could go to the Ombudsman, who could examine it. To be honest, I do not really understand why an independent complaints process is needed. If that is the case, we would bring it in for all health services across the board and not just mental health. They are the main reasons. I understand that when someone is in an institution, he or she is on his or her own and unwell, and he or she can be vulnerable. There is a large amount of power and authority on behalf of the people who are keeping them there. I absolutely understand that and I agree that we must invest more in advocacy services to support people and address the core issues. However, I do not think enshrining in law a process that would not apply to the rest of the health service and would be just for mental health would stand up to scrutiny. It sounds as though we are disagreeing - we are - but I understand that underneath the idea that people feel they want to be heard more. They are potentially more vulnerable than in a general hospital, but for the reasons set out, I am not sure that we would agree that it is needed.
Ms Fiona Coyle:
Mr. Farrelly made a really valid point in that what we hear regularly in every consultation we have with service users and their members is that there is a lack of confidence in the current system and structures that are in place. When we take a step back, we very much advocate for parity of esteem and that mental health needs the same prioritisation and investment that we see in the physical healthcare services and structures, but we must also have to the forefront the fact that there are key differences and those relate to the human rights of individuals. In mental health, under law, people are deprived of their liberty for their own health journey, but that does not happen in a physical healthcare setting. In physical healthcare, people cannot be treated without their consent in the vast majority of cases. For us, that is where the core difference is. When we look at other areas of Irish legislation that can deprive people of their liberty, for example, the powers the Garda Síochána has, there is an independent complaints mechanism because it is viewed as being a core human rights safeguarding that needs to be there. What we also look at is the optional protocol. We have made the point to the Government again and again that it has not been ratified. That is a key option for people who do want to make their voices heard.
I would like to bring in my colleague, Ms Grogan, because what would be most powerful at this juncture is that through our various pieces of research we have heard from people themselves. Perhaps if she would like to come in, she would bring across some of the voices of the service users in this debate.
Ms Ber Grogan:
I wish to say to Deputy Ward that even though we might disagree on some small things with the Mental Health Commission or others, we all want the same outcomes. It is amazing when we think of this big piece of legislation with 120 heads that there is only a small number of things that we are all looking to be tweaked.
We always learn from Mr. Farrelly and his colleagues. The Deputy would have heard from us before about our My Voice Matters piece. In 2019, it was the largest piece of research done on people using mental health services and their family members, friends and carers. It looked at their experiences with the system.
There were 786 participants in the family, friends, carers and supporters piece. Some 81.8% of those said they had not been made aware of the complaints process. Even though there are complaints processes within the HSE and within services, more than 81% of the family members were not aware of them while the person was in crisis and being treated. They are getting that information. Almost half of them agreed that the hospital expected them to be responsible for the recovery of the person. Significant pressure was put on the family, friends, carers and supporters. We completely agree with Mr. Farrelly's point on advocacy.
There are two reports on service users. We have My Voice Matters for people using the services and a separate one for the family members. Of the people using services, there were 1,188 participants and 41% of them reported a poor experience with the mental health services.
Many positive things are happening such as national clinical programmes. However, in the studies we have done and the engagement we have had with our grassroots forum and people with lived experience, the need for the independent complaints mechanism has been highlighted to us consistently, as has the need for increased independent advocacy services. I have loads of statistics and percentages.
At our conference last week, Mr. Farrelly was one of the speakers at one of the sessions. Of the contributions from the floor, a couple of people spoke about advocacy and complaints mechanisms. These are people who are coming at this from lived experience, whether it is their family members or themselves.
I apologise to the witnesses. I usually stay for all of the meeting but I have a Joint Oireachtas Committee on Children, Equality, Disability, Integration and Youth meeting on the Assisted Decision-Making (Capacity) Act 2015. I know the witnesses have an interest in that as well. I will have to go to that meeting. The Psychological Society of Ireland was before us at a previous meeting. Its representatives mentioned that the Mental Health Commission should develop codes and practices around the use of restraints and seclusion. They indicated that the commission would welcome taking on this piece of work. Is this something the commission can do? Is there an issue why it cannot do it? Is it capacity or resources? Will Mr. Farrelly elaborate on that?
Mr. Peter Farrelly:
I will. One of the things we do is put a lot of effort into codes on restraint and seclusion and we monitor them quite strongly. I agree with the representatives from the Psychological Society of Ireland. The Mental Health (Amendment) Bill 2021 puts restrictive practices in its place. It is not a treatment; it is a restriction on someone's liberty, body, etc. The Bill 2021 puts that in place. In that context, we will review the codes and ensure they have an appropriate place.
I understand the professionals in terms of there being a huge cultural movement happening here. The professionals understand that at certain times, in the least restrictive way, we may have to use these things. However, they are not a treatment; they are coercion. They have to be used in a very limited way.
A cultural shift is happening here and some professionals may be afraid that they would be liable for a change or that something could happen, as we traverse. It needs to be done well. I will hand over to my colleague, director of regulation, Mr. Kiernan, because we have significant research on this that may help.
Mr. Gary Kiernan:
As with many of the provisions we are talking about here, including the complaints issue we have just discussed, we promote that there is, in parallel, a revision of the 2006 approved central regulations and creation of new regulations to support the new and approved amendments contained in the general scheme.
The same goes for restrictive practices to strengthen those arrangements. The commission has provisions and powers to make rules for restrictive practices. We welcome the amendments in the general scheme, which strengthen those and which, as Mr. Farrelly highlights, emphasise that these restrictive practices are not therapeutic and do not have a therapeutic effect and that a lot of the international evidence is that they can be harmful so they should be treated with extreme caution and used in the most exceptional circumstances. We have already conducted a body of research to support this process and strengthen the rules on seclusion and mechanical, physical, chemical or pharmacological restraint. We welcome the amendments that create a provision for all categories of restrictive practice.
It is important that there is emphasis on this area. There continues to be a large number of seclusions every year. There are in the region of 1,800 episodes of seclusion and more than 3,000 episodes of physical restraint every year so these practices go on in mental health services that we want to continue to regulate. We will bring out revised rules to govern these practices and make sure they are used in the most exceptional circumstances. We welcome the provisions that are there under section 69. We wrote to the Department last September requesting that further amendments be made with regard to chemical restraint, that this would be further clarified and that equal status would be given to all those category of restraint - chemical, physical, mechanical and seclusion.
Ms Ber Grogan:
I know Dr. Fiona Morrissey appeared before the committee in a different session. Dr. Morrissey and Dr. Charles O'Mahony undertook our human rights analysis on the heads of Bill. Dr. Morrissey does a lot of work with the WHO on rights training. In preparation for today and throughout the whole process, I have been looking more at this. The WHO will publish new legal guidance at the end of this year relating to coercive practices. The Council of Europe compendium of good practice on voluntary measures in mental health has examples of best practice internationally so there are loads of really good examples of how we can move away from coercive practices.
It is really welcome to hear Mr. Kiernan make those points. According to the WHO, the value attached to coercive practices such as seclusion and restraint and the need for involuntary treatment in general is influenced by beliefs and habits rather than empirical evidence. The really important point here is that evidence is showing that it can be harmful. We need to move towards trauma-informed recovery-oriented care that respects the person's dignity and human rights.
I am in two committees at the moment so I apologise for skipping between both. I will catch up with my colleagues and review this subsequently. I know the Mental Health Commission is indicating that it is very opposed to the intermediate category of patient and believes it would infringe on the rights of service users. If the witnesses from the commission have already commented on this, could they let me know and I will review their earlier comments? There are obviously reasons why this is being reviewed so could they comment on it if they have not already done so?
Mr. John Farrelly:
That was suggested by the expert group prior to the Assisted Decision Making (Capacity) Act. We are hopeful that we will implement this Act later this year so de facto there is no need for the intermediate category. We just need to be mindful that people with mental illness or a mental condition are not treated differently from everyone else in the mental health service. We do not believe it is needed anymore. I will hand over to our general counsel, Orla Keane.
Ms Orla Keane:
I am also involved with the mental health tribunals and the intermediate category of person has been inserted into the section relating to the involuntary detention of people. If you look at the general scheme, it provides that people can be detained on the basis of capacity but they do not have to meet the criteria set out in section 8. In effect it is creating a new category under which a person can be detained. Somebody is being detained on capacity grounds, not on the mental disorder requirement or the need to be detained for care and treatment which cannot be provided elsewhere and which will ameliorate their condition. Why would someone just be detained on the grounds of capacity? That seems to fly in the face of the Mental Health Act 2001 and it also seems to impinge on and potentially cause difficulties with the Assisted Decision-Making (Capacity) Act 2015, which deals with capacity.
When we originally received the heads of Bill in 2019, the intermediate category was not even in the Bill. It was inserted later and we understand that was done because somebody was seeking to address some of the recommendations in the expert review group's report. As Mr. Farrelly has said, that had been addressed by the 2015 Act. Our basic concern is that the Bill is allowing somebody to be detained because of a capacity issue and not because of the basic criteria for detention, mental disorder or mental illness. That is a concern for us because capacity is being dealt with under a separate Bill. Sections 8 and 14 on the definitions of mental disorder and treatment, and Part 4; sections 56, 57, 60 and 66, all need to be read in conjunction with one another to understand how all the sections work. It is difficult to look at any particular section in isolation because they are all so interlinked with each other. I hope that assists.
Ms Ber Grogan:
I want to come in on the point on the Assisted Decision-Making (Capacity) Act 2015. Deputy Ward is gone and the committee is working on the report but members should be aware that the assisted decision-making (capacity) (amendment) Bill 2021 excludes people who are involuntarily detained under Part 4 of the Mental Health Act 2001 and those who are involuntarily detained under the Criminal Law (Insanity) Act 2006. It is a lacuna we have been highlighting since we got our human rights analysis last October. We have sent it into the Joint Committee on Children, Equality, Disability, Integration and Youth. The officials working on the amendment Bill would like sections 136 and 85(7) of the Assisted Decision-Making (Capacity) Act 2015 to be amended in that Bill. We have been speaking to those people but we are afraid that people who are involuntarily detained will fall through the gaps with the way things stand.
Ms Orla Keane:
I will get back into that as the commission has been having tripartite discussions with the Department of Health, the Courts Service and the Department of Children, Equality, Disability, Integration and Youth on sections 136 and 85(7). This is something the commission has flagged in the 2015 Act from the beginning because there has to be parity. Our understanding from a week ago is that both of those sections will be amended.
Wonderful. I thank Ms Keane for that update. I want to thank the groups. A mammoth amount of work has been done and our Chairman has taken the lead in bringing our groups together and in providing the time for this legislation in particular. I want to pay tribute to the team working with the Chairman as well. It has been an incredible amount of work and we are looking forward to doing an in-depth analysis across all the contributions in the last while and in the months ahead. I thank the witnesses.
I want to thank all the groups here for their work because we need people like them to get on to the Government and to shout and wave the flag. I want to stick to two matters because a lot of this has been covered. Ms Coyle mentioned that the Government should be ambitious with this Bill. Mental Health Reform mentioned the optional protocol and I brought it up in a previous meeting. That is what makes this Bill ambitious if we can get it in. Everything would have to be based on the needs of a person. One can go through any section of any Bill and it can be tweaked but I will go back to previous Governments and former Deputy Caoimhghín Ó Caoláin. He fought hard for this to be ratified in the Disabilities Act 2005 but unfortunately it was not. Should there be a line in this legislation that demands that the ratification of the optional protocol should happen on the day the Bill is passed? Would that give strength to the optional protocol? My fear is that it will not be supported because this Government and past Governments have not had the capability to provide the services that follow on from that protocol.
Mr. Farrelly mentioned advocacy, which we spoke about. Mental Health Reform mentioned the complaints mechanism and the experiences users had. That is important because people do not know. I said in the last meeting that we are a reactive society instead of being proactive and when people are at their worst ebb the last thing they want is to be handcuffed by members of An Garda Síochána because we do not have proper services. As well as that, family members do not get the information on what will happen, what the protocol is, what the rules are or where the mechanisms for complaining are. Mr. Farrelly also mentioned the expansion of community services and I have a fear there. The Mental Health Commission has done work on recent reports and it is doing its job as it should but others are failing to step up to the mark. I would have here the optional protocol in this Bill but should there be anything more on the likes of advocacy? Should that be strengthened? That is about it. Everything else has been covered. I am worried that the Bill will not be the crème de la crèmeif that optional protocol is not part of it.
Ms Fiona Coyle:
We would welcome a recommendation by the committee on the ratification of the optional protocol. Much of what is in the Bill is to be welcomed and brings us more in line with the UNCRPD but we would welcome that recommendation if it came from the committee. The Deputy made an important point on advocacy because Mental Health Reform has been advocating and lobbying for a long time on the right to advocacy services and the current Bill does not provide that right. The need to provide advocacy services has been a long-term policy goal going back to 2006 and A Vision for Change, which acknowledged that the person experiencing a period of emotional distress may not have the resources to advocate for himself or herself. That advocacy should be available to all service users and mental health services as a right. A Vision for Change also recommended moving to a peer support model. There has been some progress and we have seen the Mental Health Engagement and Recovery Office established, but it is fair to say that we are still far away from a model of advocacy in the mental health services that people need and deserve.
There is scope to put that on a statutory footing within this legislation. We have been calling for this for a long time. People need supports to navigate the often complex mental health services and systems. It is fundamental to the work of mental health reform. We hear the need for it on a daily basis from those we work with.
Mr. John Farrelly:
As for the Mental Health Commission, I cannot overstate the movement to community mental health services. I do not mean residential services in the community. That will happen. Part of the Act will be regulating the residential centres in the community. The phase after that, where there will be proper community services such that a young man or women in any town in Cork or someone who needs a service can walk out his or her door and get that in the community. If such people become unwell, they will not need to be hospitalised because we will have the services. They are about now. St. Patrick's did them very well during Covid-19. Full mental health services were provided to people in their own home, with the option of admission. We have a long way to go.
In terms of advocacy, it does not always have to be in the legislation because the regulations can become more discreet and prescribe more specifically some of the things that would be required of service providers. It may be that a person would have access to advocacy as required. There are many ways outside of the Act to do this. In regard to a protocol, that is a political issue. We support anything that would help to improve our mental health services.
I wish to emphasise the point that this is ambitious legislation. If this legislation is enacted, we will be changing the mental health services in Ireland for good. We will get to regulate these community services. We will be able to look at them and assist everyone to make sure that the services are up to scratch. The first thing we will do is work with everyone to produce standards and documents to know what a service should look like. There is a great deal in this legislation
Ms Ber Grogan:
As Ms Coyle said about the optional protocol, a recommendation to have that ratified in this report would be helpful. As far as I know it is in the programme for Government and is being looked at, but to move that along. It was in our opening statement that there are reservations on Articles 12 and 14 of the UNCRPD that the State put forward at time of ratification. They water down our obligations under those articles. It would be important in the true spirit of the Act to have those reservations removed from Articles 12 and 14. Mr. Farrelly has just reminded me of the ambition and the change. Shine did an amazing job before us of bringing the voice of people with lived experience. I am well-versed in the UNCRPD at this stage. Under Article 4.3, we are obliged to involve people in the making of policy as well, such as people with psychosocial disabilities. It is not about us having these conversations without their input. It is about bringing that conversation to people with lived experience, getting their input at the start, rather than handing them the new and improved mental health services. If we do not have that input from the beginning - the committee has done a good job of making sure voices have been heard - we must keep that in mind for the whole process as we go through the Dáil, the Seanad and the Committee Stages.
To refer back to Mr. Farrelly, he spoke about the integration of the community settings and services and that he sees change and hopes for more change. I would be remiss if I did not mention this, even while we are talking about legislation to improve things - I want to refer to the Mental Health Commission's report, it can be anyone aged 16 onwards - we are still facing the prospect of closing mental health beds in community settings. They are doing it in my town of Midleton. It is ludicrous that we are being told that these services, once the numbers are gone that these services will never be needed again. I keep going back to this optional protocol, because those people have rights and this is a rights-based issue.
If a place is not appropriate, then some other place that is appropriate should be found or the one that they are in should be improved. Would that solve that problem without making any legislation complicated?
Mr. John Farrelly:
I would not disagree with that point. Everyone agrees that the HSE needs to be reformed. We are on the record as saying the Health Service Executive needs to be reformed and that the governance needs to be better to roll out the Sharing the Vision policy. The idea that a place is not well looked after or neglected for 20 years and then the person who suffers is the most vulnerable person, is not a correct way of doing business. The Mental Health Commission does not have powers to regulate parts of the community where we could do an integrated approach. There is no doubt but that people are suffering because of the governance and management in the Health Service Executive in certain areas. It is unfortunate. There is nothing we can do about that because we do not have the powers to do anything about it. This legislation, if enacted, would give us more powers to have an integrated regulatory approach.
I have one or two questions. I want to come back to the complaints mechanism. I will aim this at the representatives of Mental Health Reform. Will they say a bit more about where they think the complaints mechanism should be located? Where do they think that should happen?
Ms Ber Grogan:
It is important that it is independent. There are complaints mechanisms in the HSE. The heads of Bill before us provide for the approved centres to inform people about their complaints mechanisms but to us that is not workable. That is not improving services and enshrining their rights. It needs to be independent from the service providers. For example in Sweden there is a personal ombudsman so if you have severe and enduring mental health difficulties and you do not have many supports, the personal ombudsman will work with you for years. There are examples of supports throughout Europe and in other places. Independent is the main thing, and for the under-18s, we are looking at everything from children in services, adults in services and the family members, friends and supporters.
Ms Ber Grogan:
There could be, whether it is a mental health ombudsman or a complaints mechanism. As Ms Coyle mentioned, there is the Policing Authority and the Garda has separate mechanisms for people to make complaints and have those complaints investigated. We always have to keep the power imbalance piece at the forefront of our minds. We can give people the information but until that culture change and until everything shifts and people feel empowered and listened to, we have to make sure there is a safe way for people to complain and that there are no repercussions or perceived repercussions on speaking out. Niall Muldoon was in before the committee - he does amazing work with children - and it is about not putting the barriers of bureaucracy in place. As Mr. Farrelly said, someone can go to the Ombudsman now but they must have exhausted all other avenues of complaints. If you are not well, you are exhausted and you are using all your energy to recover and get through life day by day. The last thing you want to do is take on complaints mechanisms. forms and fighting about having your complaint heard.
Ms Ber Grogan:
I will circulate the Council of Europe compendium of good practice. Dr. Fiona Morrissey sent it to me the other day and it is great. It contains a map of Europe and you can click on each country to see some of the examples. The UK has the No Force First initiative, Finland has a workbook of hospitals and wards and across Europe, there is an intervention called Safewards. There are also some community-based interventions, such as the personal ombudsman in Sweden, which has been going since 1995. There are mental health mobile units in Greece that go around the community and there are also hybrid approaches combining community and inpatient settings. There are many places that are either trialling things or have been doing them for a very long time. As Ms Coyle said, it requires the ambition and drive to move away from seclusion and restraint. I have other examples that I can email to members after the meeting.
Mr. Gary Kiernan:
I will come in regarding the piece of work we are doing. We have established an expert advisory group and have completed an evidence review in this area. As Mental Health Reform has pointed out, some jurisdictions are trialling restraint-free environments. For example, health trusts and health organisations in parts of Australia and New Zealand have tried to bring this in and are on the journey to bringing in restraint-free environments. There is very much a move towards reduction and elimination. At present, we are promoting use of the least restrictive interventions and that these are only used in the most exceptional circumstances. The provisions in the new part of the Act that relate to restrictive practices, which the commission advocated for, are now much stronger in the sense of how they allow us to make rules to govern these areas to ensure there is constant scrutiny of them, in addition to a constant effort and focus on reducing and eliminating them. The commission intends to publish its evidence review highlighting international best practice in this area.
Mr. Gary Kiernan:
This is exactly it. We all want environments where staff and residents feel safe. We want patients and residents to be cared for by people who feel safe in their working environment and who have the best possible chance of giving the best possible care. Work environments needs to be safe for everybody but the primary concern needs to be that people's rights are not infringed. There needs to be a mindset change in the way we look at restrictive practices. They have to be only after every other possible alternative has been looked at.
What do the representatives of both organisations think of the Government's proposal for a pilot of crisis intervention teams to deal with people who are having mental health issues? What are their thoughts on that?
Mr. John Farrelly:
We can speak to that. We welcome anything. We worry about this concept of a pilot so late in the day but we also welcome it. If we look underneath, it comes back to the idea of resources being allocated for this to happen and to become integrated in the community. It is just that these issues do not tend to be prioritised until something happens on the ground and they are raised in that context. We hope the pilot will be expedited and rolled out throughout the country and that we have a pilot that works. We do not need to have 27 other pilots in 27 other areas. We should agree this is the methodology. If we were regulating it under this Act, for example, we could use that information to set standards, we could roll it out and we could help monitor it.
I have noticed one thing. I know there is a need for Government and opposition, but there is now a cross-party emphasis on mental health that I hope we can tap into this time. I welcome it but there were also proposals for this a number of years ago. I would like to see it actually implemented.
Ms Fiona Coyle:
I will echo what Mr. Farrelly said. We very much support new approaches and new initiatives that bring together a multi-stakeholder approach. While we note the HSE is important in the delivery of mental health care it is not, and nor should it be, the only actor. We need responsibility for mental health to go across Departments and different agencies. In saying that, at times we do very well in Ireland in having pockets of brilliant initiatives and brilliant projects across the country. We never seem to be able to scale them up to a level that no matter where somebody is, whether it is north-west Donegal or Waterford, there is access to the same services and supports. We always ask for a costed implementation plan to be rolled out for anything that is evidence-based, reviewed and seen to be positive to see how something that is positive and evidence-based will be scaled up.
Mr. John Farrelly:
My one concluding remark is to thank the committee for the opportunity and for bringing us back. I also emphasise that we have a collaborative group of people in Ireland who are acting in good faith. I know that sometimes during these committee meetings it can look as though there are diverse opinions and a crash-bang, but that is not how it is. Essentially, we have significantly good clinicians in Ireland who are making points, for example, about involuntary admission. We respect that and we will work with them. We have a lovely, high-intensity voluntary sector that I admire for the work it does. Our health service is also trying to do well. As a regulator, we try to be impartial but we very rarely get the opportunity to say that it is nice to be part of a process in this country where we can discuss things like this in a respectful way. I thank the committee for that opportunity. I wish it well with its report.
Ms Fiona Coyle:
I echo that. I thank everyone who has been involved in this process to date. We have before us ambitious and transformative legislation. The process included every conversation that has happened over the past six months, and even goes back to the work the expert group put in all those years ago, but if we are to deliver on this legislation it will take more than words. It requires a cultural shift and for that to happen we need to have honest and frank conversations. It has been wonderful to see over the weeks of deliberations a huge commitment to putting in place person-centred and human rights-compliant mental health services. While we may have differing views on some of the detail, a clear narrative of support for the aspiration, vision and principles has come out of these meetings and out of the work various actors have done since 2014 and 2015.
The opportunity is now. Mental Health Reform always pushes for all legislation to go as far as it can, to be as ambitious as possible and to enshrine what we can in legislation, because that enables us in the work we do in advocating for service users and for our member organisations. It gives us a stronger platform to do that. I say a big "thank you" for all the work that has been done to date. I hope this is the beginning of a new chapter in our mental health services in line with the other conversations that are happening down the corridor around the assisted decision-making Act. We can fundamentally change how people with mental health difficulties or psycho-social disabilities are viewed and engaged with in this country. Gabhaim buíochas leis an gcoiste faoi choinne na hoibre ar dóigh atá curtha i láthair aige.
Ms Ber Grogan:
I give special thanks to the Cathaoirleach and to the Minister of State, Deputy Butler.
Throughout this process, everyone I have spoken to and engaged with and everyone in any of the briefings we have had with our 77 members and in any our cross-stakeholder meetings is talking about how positive the subcommittee is and how it is championing the legislation and the reform. It is heartening to see. It gives a lot of hope that change is coming. It has been wonderful to see that across the board, that the Cathaoirleach of this subcommittee has support across Government and across parties, as well as the support the Minister of State, Deputy Butler, and her officials have for the work they have done. This has been a long stint of pre-legislative scrutiny and it is only the start before we get on to the debates. However, our members and people with lived experience know this happening and they are grateful that change is coming.
I thank all the witnesses and members. I, for one, feel very privileged. I am sure I can speak on behalf of the committee, the secretariat and of all of those who are working in this area when I say we all feel very privileged to be part of this whole process. It is the right timing and it is fantastic. I thank all the witnesses very sincerely for their comprehensive and helpful contributions here today. Our meeting is now adjourned sine die.