Dáil debates

Tuesday, 8 December 2015

Mental Health (Amendment) Bill 2008 [Seanad]: Second Stage


6:55 pm

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

I move: "That the Bill be now read a Second Time".

I am pleased to present the Mental Health (Amendment) Bill 2008 to the House. I acknowledge and thank the Opposition Deputies for their support for this short but important Bill. Their co-operation in this matter is much appreciated and has allowed me to secure Dáil time to debate the changes I plan to bring forward on Committee Stage this evening. The purpose of this short Bill is to amend the Mental Health Act 2001 so that when a person with capacity refuses electro-convulsive therapy, ECT, or medicine after a three month period, the decision will be respected. This is a very important change that has been requested for many years by mental health support and advocacy groups, including Mental Health Reform, Amnesty International and the Irish Advocacy Network. The mental health regulator, the Mental Health Commission, and the medical professional body, the College of Psychiatrists of Ireland, have also called for the amendment to be introduced on a priority basis.

I will give a brief history of the Bill and explain why it is only now coming before the House. The Bill commenced in the Seanad in 2008 as a Private Members' Bill sponsored by then Senators Deirdre de Búrca and Dan Boyle and Senator David Norris. The original intention of the Bill was to allow ECT to be administered to patients only with consent but also to delete section 58 of the Bill which included safeguards about the administration of psychosurgery. During the debate in the Seanad there was also a call to consider the case for banning ECT altogether. The Final Stage of the Bill was passed in the Seanad in 2011, very shortly after I took up office in the Department of Health.

Given the discussions in the Seanad and elsewhere about ECT, I indicated to the Seanad that, given that I was planning to establish an expert group to undertake a comprehensive review of the Mental Health Act 2001, I thought it best to allow the group reflect on the issues raised first. I wanted the group to look at all aspects of the administration of ECT and give their opinion on the extent of the changes that should be made. While the expert group took longer than expected to complete its review, the group's report was finally published in March this year. It is a comprehensive and robust review of the 2001 Act and contains 165 recommendations which will provide a roadmap for how we amend our mental health legislation for the better to ensure individuals with mental illness are afforded quality care in the most appropriate environment suitable to their needs. I have received Government approval for the drafting of a general scheme of a Bill to reflect the recommendations of the group in revised mental health legislation. Work is under way in the Department on the Bill. It is, however, at an early stage of drafting and while many recommendations of the group are worthy of extensive debate in themselves, today our work is to focus solely on the priority amendments which I am bringing before the House.

The expert group specifically recommended that the change with regard to ECT that I am planning today should proceed as a matter of priority in advance of other changes recommended.

Under section 59 of the Mental Health Act 2001, the written consent of the involuntary patient is currently required if a programme of ECT is to be administered. If the patient is "unwilling" or "unable" to give such consent, however, the programme may be administered as long as it has been approved by the consultant psychiatrist who is responsible for the care and treatment of the patient and authorised by another consultant psychiatrist. The expert group was very clear in its recommendation that the authority to give ECT without consent in any circumstance in which the patient is capable of giving consent but unwilling to do so should be removed. As I have mentioned, the group recommended that the first possible opportunity should be taken to effect this change. I identified the Mental Health (Amendment) Bill 2008 as the quickest way to revise the existing legislation. In July of this year, I received Government approval for the Committee Stage amendments I am bringing before the House today.

In addition, I am proposing an amendment to section 60 of the Mental Health Act 2001 which deals with the administration of medicine after a three-month period. This section, which uses similar phraseology to section 59, currently provides that where medicine has been administered to a patient for the purposes of ameliorating his or her mental disorder for continuous period of three months, the administration of that medicine shall not be continued unless the patient gives consent in writing. It provides that if the patient is "unable" or "unwilling" to give such consent, the continued administration of that medicine may only be continued if the consultant psychiatrist responsible for the care and treatment of the patient approves the administration and it is also authorised by another consultant psychiatrist. The members of the expert group were again agreed that the word "unwilling" should be removed from section 60. This will ensure that where any patient who has the capacity to make a decision refuses to take medicine after three months, this decision will be respected.

Everyone in this House and in the wider community of mental health stakeholders is aware that there have been divergent views on the use of ECT for many years. No one denies that it remains a contentious treatment for some people. Anyone with an open mind on the subject will agree that the case to ban this treatment outright has never been fully articulated. Regardless of the views that people in this House may have about the efficacy of ECT, I would be surprised if any of them would seek to have it banned. It is important to remember that international evidence shows that ECT appears to be the only treatment that offers any real possibility of improvement for people with severe resistant depression. I note that a recent publication by the Mental Health Commission, The Administration of Electro-convulsive Therapy in Approved Centres: Activity Report 2013, indicates that in over 90% of cases the treating consultant psychiatrist reported an improvement in the condition of the patient following the administration of ECT. The activity report also notes that in 2013, there was just one case in which both consultant psychiatrists were of the view that the patient was in the "unwilling" category. There were a further six cases in which one consultant psychiatrist indicated that the patients were in the "unwilling" category while the other consultant psychiatrist indicated that they were in the "unable" category. In all the remaining cases, the patients were in the "unable" category. In other words, the vast bulk of cases approved in 2013 under section 59 related to patients who lacked the capacity to consent to treatment, rather than patients who refused treatment. The changes I am bringing forward today will eliminate the "unwilling" category.

The expert group was clear on the need to retain the right to give ECT to patients who are unable to consent to treatment. This view is supported by professional groups. These cases involve patients with depression so severe or intellectual disability so profound that they cannot understand their options, even with the decision-making supports which will be available to them when the Assisted Decision-Making (Capacity) Bill 2013 is passed. I consider it appropriate that people who lack capacity are not denied the full range of services that are provided to other people with capacity. This view is in keeping with the UN Convention on the Rights of Persons with Disabilities. While these patients should never be denied such treatment options, important and robust safeguards must be put in place to ensure their rights are fully respected and such treatments are administered in accordance with procedures laid down in law. This is what sections 59 and 60 of the Mental Health Act 2001 seek to do. They provide the appropriate safeguards for the safe administration of ECT and medicine over three months. The expert group has recommended that after the forthcoming enactment of the Assisted Decision-Making (Capacity) Bill 2013, and in the context of the full revision of mental health legislation, references to the decision-making supports to be provided under the aforementioned Bill should be added to the Mental Health Act 2011 in due course, including where ECT is concerned.

I will briefly set out the specific measures in the Bill before the House. Section 1, as it stands, amends section 59(1)(b) of the Mental Health Act 2001 by deleting the word "unwilling". This covers the essence of the changes I am making. I will come back to this section on Committee Stage as I intend to introduce a new section 1 to the Bill. Section 2 of the Bill as it stands is incorrect. Although it was agreed in the Seanad, I do not believe it reflects the intention of that House. The section as it stands seeks to delete section 59 of the Bill in its entirety. This is simply incorrect as without section 59, there would be no protections in the Bill with regard to ECT. Section 3 relates to the Short Title, collective citation and construction.

I thank Deputies for their support of this Bill and in particular the amendments which I will shortly bring forward on Committee Stage. These amendments have all-party support and will further enhance the rights of people who are involuntary detained in our mental health approved centres. It will end the practice of forcing patients with capacity to take certain treatments when they are unwilling to do so. I commend the Bill to the House.


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