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

Before we adjourned, Deputies Colm Keaveney, Pádraig Mac Lochlainn, Fergus O'Dowd and Denis Naughten spoke on their amendments. Amendment No. 66 concerns the circumstances in which restraint can be used or authorised by a decision-making representative. We are in agreement that restraint should be tightly regulated and only used where absolutely necessary. I proposed amendments on Committee Stage which limit the circumstances in which restraint can be used. The situation has to be an exceptional emergency in which there is an imminent risk of serious harm to the relevant person or to another person.

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Deputy Mac Lochlainn’s proposal would remove the concept of exceptional emergency circumstances. In the spirit of what we are doing, we all want to get to the same goal, and sometimes ensuring one does not reflect on another can be quite difficult. It would also remove the concept of imminent risk of serious harm. Instead, it proposes a lesser test – the test in the Bill as published – that restraint could be used at any time when there was a risk of harm to the person or to another. The time-limited nature of the amendments that I proposed would be lost. Similarly, the safeguard that restraint could be used only in exceptional emergency circumstances would also be lost.

While the Deputy’s amendment specifies that restraint could be used only if it were the least restrictive measure, this addition is already encompassed in the guiding principles of section 8, which requires an intervention to be in a manner that minimises the restriction on the person’s rights and freedom of action. That covers this element of the amendment. As the Deputy’s amendment would, I believe, dilute the safeguards now in the Bill and allow for restraint to be used more widely than is permitted under my formulation, I cannot accept his amendment, although I fully understand from where the argument comes.

Deputy Mac Lochlainn proposed an amendment on Committee Stage whereby the concept of chemical restraint would be added to the categories of restraint which can be used only with tight safeguards by a decision-making representative or by an attorney. I have considered Deputy Mac Lochlainn’s proposal carefully. Following legal advice and consultation with the Department of Health, amendments Nos. 68 and 79 that I propose will address the Deputy’s concern. I propose a definition of restraint that would apply when a person is administered a medication with the intention of modifying or controlling the relevant person’s behaviour so that the person would become compliant. The definition of chemical restraint would also apply in circumstances where someone authorised another person to administer the medication. It is not just the immediate administration but second-hand administration also. I thank the Deputy for bringing this issue to my attention. I ask him not to press amendment No. 69 and to accept instead the amendment that I propose. Of course, it is entirely up to him but I believe we have managed a reasonable compromise.

I ask Deputy O’Dowd, in similar fashion, not to press amendment No. 142, which proposes to insert a new section 119 into the Bill. I consider that the amendments that I propose will address his concerns and will ensure that chemical restraint is subject to the same tight safeguards that will govern the limited use of restraint possible under the Bill.

Amendments Nos. 67 and 78 are consequential amendments that follow from amendments Nos. 68 and 79.

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