John O'Donoghue (Kerry South, Ceann Comhairle)
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Amendments Nos. 1 and 2 are consequential on amendment No. 6. Amendment No. 3 is a technical alternative. Amendments Nos. 1 to 3, inclusive, and amendment No. 6 may be discussed together. A recommittal is necessary in respect of these amendments because they do not arise out of committee proceedings. I call on the Minister to move that the Bill be recommitted in respect of these amendments.

John Moloney (Laois-Offaly, Fianna Fail)
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I move:

That the Bill be recommitted in respect of amendments Nos. 1 to 3, inclusive, and amendment No. 6.

John O'Donoghue (Kerry South, Ceann Comhairle)
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Is that agreed?

Jan O'Sullivan (Limerick East, Labour)
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No, it is not agreed.

John O'Donoghue (Kerry South, Ceann Comhairle)
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Would the Minister of State like to make an explanatory statement before we move any further? Then we can listen to the argument.

John Moloney (Laois-Offaly, Fianna Fail)
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I will try to clarify the reason for recommittal and for taking these together. The Government decided to bring forward these amendments to the Health (Miscellaneous Provisions) Bill 2009 in order to address the difficulties in the operation of the Mental Health Act 2001. The need to amend the Mental Health Act 2001 arises from the recent High Court proceedings where a patient sought and was granted a declaration that her removal to a psychiatric hospital was not in accordance with section 13(2) of that Act.

The 2001 Act provides for the involuntary admission to approved centres of persons suffering from mental disorders. In addition, the legislation provides that where a person is acutely mentally ill and requires admission to hospital, but is unwilling to travel to hospital voluntarily, the person can be brought to the hospital. Section 13(2) of the 2001 Act places a statutory obligation on the clinical director of the approved centre to provide such assisted missions, where necessary using staff from the approved centre.

Is further clarification needed?

John O'Donoghue (Kerry South, Ceann Comhairle)
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There is no need to go into the amendments, only to explain the need for recommittal. Does Deputy Reilly have a problem with the recommittal?

James Reilly (Dublin North, Fine Gael)
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I have a problem with the manner in which this has been introduced, but not with addressing the issue.

Jan O'Sullivan (Limerick East, Labour)
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I object to the way in which this is being introduced. We were given these amendments yesterday. The substantial amendment, amendment No. 6, amends the Mental Health Act 2001. I went back to my file on the Mental Health Act 2001 and found that substantial concerns were raised by, for example, the National Disability Authority, Schizophrenia Ireland and a number of other organisations in respect of the human rights element and protection required in the Mental Health Act 2001. There may well be a problem with the detention of people who need to be brought back into care, but this is not the way to do it.

We need to have an opportunity to consult with the various bodies which had concerns about that Act previously. We are now reducing the protection through what is being done today. In the original legislation, the staff of the institution were allowed to get the assistance of the Garda Síochána if they had to bring somebody back who had, for example, absconded. That is provided for in the original legislation, which I have here with me. However, what we are doing now is providing for an authorised person to do that.

There may well be a good reason for this and the Minister of State may be able to cite the details of the situation which I understand has occurred. This, however, is not the way to do it. As legislators, we have an obligation to go back and consult the various bodies that had a concern about the legislation originally, if it is being substantially amended.

James Reilly (Dublin North, Fine Gael)
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I have the same issue. As a general practitioner I understand the difficulties. I understand the difficulty that arises when a patient is deeply psychotic in the middle of the night and one is trying to get that person into a safe place for care. I understand too the difficulty with staff having to come from the hospital to address this and the related problems. I understand also that another group of individuals with a history of being involved in psychiatric care, psychiatric nurses, have sought to address this through a body they have set up.

However, the main issue is that this Bill has nothing to do with the Bill we were discussing. The Health (Miscellaneous Provisions) Bill, which is on the Government legislative programme proposes to dissolve the National Council on Ageing and Older People, the Women's Health Council to subsume the National Cancer Screening Service Board, the Crisis Pregnancy Agency and the Drug Treatment Centre Board into the HSE and to amend the Hepatitis C Compensation Tribunal Act 1997 to remove age limits for travel insurance benefit provided in accordance with that Act. We have gone through three Stages of this Bill and now, suddenly, on Report Stage, the Mental Health Act is introduced. That is totally unsatisfactory.

There was no discourse before this was done. We go no advisory brief and no rationale for this decision. It was just done. We, on this side of the House, would like to be co-operative in addressing the serious issues that afflict the day-to-day running of our service and the care of patients, but this is no way to go about it.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Minister has sprung these amendments on the Dáil. They only appeared yesterday on the publication of Report Stage. They amount to a separate Bill and should have had a separate explanatory memorandum. We should have been given the opportunity to properly discuss and debate the measures involved that clearly affect not only the Mental Health Act 2001, but all the way through to 2009.

There has been no briefing on the net effect of the measures now appended to the Health (Miscellaneous Provisions) Bill 2009. This an outrageous way to do business. These important matters require proper scrutiny in the House, whether they are right or wrong or whether we come to an agreement that they are required. The way the business is being conducted is the most vexatious aspect of the situation.

I understand this is being done on the advice of the Attorney General. His opinions are under considerable contest at the present time, particularly with regard to judges and pension levies. Therefore, he may not have a monopoly of wisdom on this matter either and could well be wrong. While I do not link the two matters, Deputies, nevertheless, have a right to make it clear that the Attorney General is not infallible. These matters should have been properly addressed in a separate Bill with a separate explanatory memorandum. The issue should have been addressed in the House in that way.

John O'Donoghue (Kerry South, Ceann Comhairle)
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Deputy Ó Caoláin cannot say to the House that the Attorney General is definitively wrong on any matter, when he has not been proved wrong. I cannot allow that happen when he is not here to defend himself.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I am only saying he is not infallible, like the Ceann Comhairle and myself.

John O'Donoghue (Kerry South, Ceann Comhairle)
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I suppose he is not. The proposal before us is whether to recommit these amendments to Committee Stage. The question as to whether the amendments are acceptable to Members is a different matter and goes to the substance. The Bill, as its Title suggests, is a miscellaneous Bill, the Health (Miscellaneous Provisions) Bill 2009. Therefore, the amendments are in order. I want to advise Members on the issue because it is important. The issue is whether the Members wish to consider these amendments, and reject or accept them as may be, in Committee - in other words, there would be no limits - or that we discuss them on Report. If we discuss them on Report Stage, Members know the rules. The person who moves the amendment has a right of reply, but the intervening contribution can only be two minutes and no Member may speak more than twice.

Would Members prefer to discuss them on Committee, giving them a greater opportunity to discuss the amendments and then seek to vote them down if necessary? I am in the hands of the Members. I can put the question or can proceed on Committee if Members accept that.

James Reilly (Dublin North, Fine Gael)
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As a Deputy and a doctor, I consider the Health Acts to be the Health Acts, but I consider Mental Health Acts to be Mental Health Acts. I accept the Ceann Comhairle's ruling and understand that from a technical perspective he is right. However, he must agree that any reasonable person would be misled by this. I believe we should put this to a vote now, because this should not be done.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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On a point of clarification -----

John O'Donoghue (Kerry South, Ceann Comhairle)
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Strictly speaking, there can only be one intervention by each spokesperson. Unfortunately, I will have to put the question.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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That is not how the Chair applied the rule with regard to Deputy Reilly. What is good for the goose is good for the gander.

John O'Donoghue (Kerry South, Ceann Comhairle)
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Go on.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Chair indicated we have a choice procedurally, but he did not indicate there is a time constraint. There is a time constraint and I presume it holds and the guillotine applies. Therefore the option between Committee Stage or proceeding as we are is not as agreeable as the Ceann Comhairle indicated. We have one hour left to conclude all our deliberations on this Bill, with all the addendums to it.

Jan O'Sullivan (Limerick East, Labour)
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Is the Ceann Comhairle suggesting that these amendments are in order, even though they did not arise from Committee Stage and that if we do not agree to recommitting them we will have to deal with them on Report Stage? I do not want to take up time. This is a procedural argument.

John O'Donoghue (Kerry South, Ceann Comhairle)
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The amendments need to be recommitted as they do not arise out of Committee proceedings. To that extent, the Deputy is correct and they would not be in order. The issue is whether Deputies wish to have a vote on this. If there is a vote on this, the result will decide if amendments Nos. 1 to 3, inclusive, and amendment No. 6 are recommitted. The vote will take up a certain amount of limited time. I cannot advise Members any further.

James Reilly (Dublin North, Fine Gael)
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Sorry Ceann Comhairle-----

John O'Donoghue (Kerry South, Ceann Comhairle)
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We cannot go back on it now. That debate is over.

James Reilly (Dublin North, Fine Gael)
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On a technical point-----

John O'Donoghue (Kerry South, Ceann Comhairle)
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That debate is over. I will ask the Minister of State, Deputy Moloney to move amendment No. 1. Deputy Reilly can talk about it when his turn comes. I am not going back on it now. I must move along. Amendments Nos. 1 to 3, inclusive, and amendment No. 6 will be discussed together.

John Moloney (Laois-Offaly, Fianna Fail)
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I move amendment No. 1:

In page 5, line 16, after "1997," to insert "THE MENTAL HEALTH ACT 2001,".

By way of clarification, I take the points made by Deputies Reilly and O'Sullivan. I can understand Deputy Reilly's point about separating mental health from the other health issues generally. However, the complaint is the fact that it is rushed legislation. A full review of the Mental Health Act will be undertaken in 2011. I sincerely accept the point Deputy Reilly made, but the timing is dictated by High Court findings and this was the earliest opportunity before the summer recess to deal with the matter. I can assure the Deputy I did not get advice to rush anything in and I accept the point he made on whether the mental health legislation should be taken separately, but as there is a time constraint I have no choice but to do it.

James Reilly (Dublin North, Fine Gael)
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If the Minister of State had communicated the position, we could have avoided it.

John Moloney (Laois-Offaly, Fianna Fail)
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All I can say is I apologise.

James Reilly (Dublin North, Fine Gael)
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That is accepted.

John Moloney (Laois-Offaly, Fianna Fail)
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The 2001 Act provides for the involuntary admission to approved centres of persons suffering from mental disorders and, in addition, the legislation provides that where a person is acutely mentally ill and requires admission to hospital but is unwilling to travel to hospital voluntarily, he or she may be brought to the hospital. Section 13(2) of the 2001 Act places a statutory obligation on the clinical director of the approved centre to provide such assisted admissions, where necessary, using staff of the approved centre.

In the case referred to, a patient had been removed to a psychiatric hospital in April 2007 by the external agency contracted by the HSE to provide assisted admissions, where they could not be provided by the local service. We must deal with the issue of what constitutes staff of the approved centre, which was the subject of the judicial review proceedings. In his ruling, the judge found that the meaning of the term "member of staff" is confined to an individual and a corporate entity such as an external agency could not be a member of staff. This narrow interpretation of the term "staff of the approved centre" presents difficulties in the ongoing provision of an assisted admissions service.

In 2008, of the 2,004 involuntary admissions, 604 were assisted admissions, of which 42%, or 250, were provided by an external agency. All the assisted admissions in the Dublin and Leinster region were provided by the external agency. I am satisfied that the external agency has provided a very professional, high quality and safe assisted admissions service for the HSE and the two private psychiatric hospitals since 2006. To date, more than 600 people have been safely brought to the hospital by the agency and there have been no complaints about the service during the period, which is noteworthy when one considers the sensitive and potentially difficult nature of the service.

The provision of the assisted admissions by a central agency enables the development of specialised expertise in the de-escalation of difficult situations, which is of immense value and ultimately makes the situation easier for the patient and his or her family. The company involved employs only fully qualified psychiatric nurses, all of whom receive intensive specialised training, including appropriate interactions with service users and training on de-escalation and talk-down techniques. The company complies with all mental health commission guidelines and standards in its work. It also provides special transport with trained drivers and co-operates effectively with the Garda Síochána when its assistance is required.

To bring clarity to the purpose of the amendment, to ensure the continuation of externally-provided assisted admissions the amendment is necessary to ensure that acutely mentally ill persons who require hospitalisation and refuse to come to hospital voluntarily can be brought to hospital by specially authorised persons, where the local service is not in a position to provide the necessary assisted admissions. Otherwise, we will have a situation where an assisted admission service will not be available uniformly country wide and as a result vulnerable people in need of treatment will be left in the community when they should have been admitted to hospital

By way of dealing with amendments Nos. 1 to 3, inclusive, and amendment No. 6, as proposed by the Minister for Health and Children, Deputy Mary Harney, I would like to discuss each of the amendments in the first grouping, that is, amendments Nos. 1 to 3, inclusive, and amendment No. 6, if that is in order.

Amendment No. 6 provides for changes to the Mental Health Act 2001 in order to ensure the continuation of externally provided assisted admissions. It is proposed to amend sections 13 and 27 of the 2001 Act to provide that a clinical director can arrange for a person to be removed or returned to the approved centre by members of staff of the approved centre or by authorised persons. The amendment provides that the registered proprietor of an approved centre may enter into a contract for the purposes of arranging externally assisted admissions. Persons who are employed by the external agency will then be authorised in writing by the clinical director to provide assisted admissions to his or her particular approved centre. It is proposed to amend section 9(2) of the Mental Health Act 2001 to disqualify authorised persons from making an application to detain a person under the Act and thus ensure that no conflict of interest can arise.

A question has arisen as to whether assisted admissions by the external agency to date are valid. Counsel has advised that the Legislature has the power to ratify previous breaches of sections 13 and 27 and in these circumstances, and for the avoidance of doubt, a validation provision is included in the amendment to confirm all external agency assisted admissions to date.

Amendments Nos. 1 and 2 are related to amendment No. 6. Amendment No. 1 amends the Long Title of the Health (Miscellaneous Provisions) Bill so that it encompasses the amendment to the Mental Health Act made in the Bill. Amendment No. 2 provides that the Mental Health Acts 2001 and 2008 and section 62 may be cited together as the Mental Health Acts 2001 to 2009, and shall be construed together as one. Reference to section 62 in this instance is a reference to the new section to be included in the Bill, in line with amendment No. 6.

Amendment No. 2 also provides that the Health Acts 1947 to 2008 and section 62 may be cited together as the Health Acts 1947 to 2009, and shall be construed together as one. This is a reference to section 62 of the Bill as it stands printed at present, and refers to an amendment to the Health Act 2007. This new citation and construction for the current section 62 arose from proposals made by Deputy O'Sullivan on Committee Stage, for which I am grateful to her.

In addition, amendment No. 2 provides that the Health (Miscellaneous Provisions) Bill, when enacted, other than section 62, shall come into operation on such day or days as the Minister may appoint, by order or orders, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions. Again, the reference to section 62 in this instance is to the proposed new section under amendment No. 6. This is required because the intention is that this new section is to come into operation as soon as the legislation is enacted.

As amendment No. 3 put forward by Deputy O'Sullivan is encompassed in amendment No. 2, I do not propose to accept it. I would again like to thank the Deputy for raising this matter on Committee Stage. I commend the amendments to the House.

Jan O'Sullivan (Limerick East, Labour)
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I thank the Minister of State for taking on board the point I made in amendment No. 3, which I will withdraw on that basis. The main points I wish to make are in regard to amendment No. 6 and the alteration and amendment of the Mental Health Act 2001.

We have already expressed alarm, as I did this morning on the Order of Business, in regard to the recommittal and this way of amending legislation. I searched back and found my file on the Mental Health Act 2001 and found I had received representations on the legislation from the Irish Council for Civil Liberties, Schizophrenia Ireland, the National Disability Authority and possibly other organisations whose records I have not kept. A White Paper was published in advance of that legislation, so there was clearly much discussion around the balance of rights, because there is a very sensitive balance of rights in regard to the detention of people who have a psychiatric illness and who may be a danger to themselves and others. We are all realistic enough to know there are situations where people have to be detained for their own good. However, it is a balance of rights, which is the point that concerns me here.

I have not had a chance to consult with anyone in advance of this debate because we received the list of amendments only yesterday and it was this morning before I had an opportunity to fully read the amendment. In the original Mental Health Act of 2001, there was a provision under section 13 and the other section referred to, section 27, in regard to the removal of persons to approved centres. Section 13(3) of that Act states:

Where the clinical director of the approved centre or a consultant psychiatrist acting on his or her behalf and the registered medical practitioner who made the recommendation are of opinion that there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist the members of the staff of the approved centre in the removal by the staff of the person to that centre and the Garda Síochána shall comply with any such request.

There was concern among some of the organisations about definitions of, for example, an authorised person and who that person should be. The assistance of the Garda Síochána could already be sought, and gardaí were obliged under the law to comply with the request for assistance, so there was already a fairly tight system whereby a person could be detained and brought back to the approved centre. We need a far better explanation as to why that legislation is inadequate and why we need new legislation.

It is a matter of balancing rights. People in these organisations are genuinely concerned that there may be an over-heavy hand in some situations. While I accept that in the majority of situations the person does need to be detained, it is a very fine line and one on which, as legislators, we need to tread carefully.

The "authorised person" is defined in the amendment. Although the Minister of State claims they will be qualified people, I see nothing in the legislation that describes exactly what kind of person can be authorised. Must they have a particular professional qualification or be a particular kind of person? Is there a loophole whereby these centres could take on anybody who is physically strong enough to detain these persons and bring them back to the authorised centre?

These are the concerns I have with the legislation. It is an important duty on us, as legislators, to protect the public in these kinds of situations and to make sure we are not leaving loopholes or gaps in legislation that could affect people's civil liberties and human rights at a later stage. I am concerned that the definition of an authorised person appears quite loose. It appears the registered proprietor of the centre can pretty much decide who the authorised person should be. In the Act of 2001, there were much tighter controls over who could or could not remove a person who needed to be brought back to a centre.

Has there been a problem with the Garda Síochána assisting where necessary? Generally, if somebody needs to be detained, for whatever reason, the Garda Síochána is the organisation which is used to doing that kind of thing, and it is controlled in turn by codes of practice that have been tightened up over the years. Checks and balances are in place, with a Garda Ombudsman giving the public a place they can go if they feel they are not being properly treated. Another one of the suggestions in this legislation is that there should be advocates for the people concerned but, again, I do not see any reference to this in the amendments.

My concerns are purely concerned with ensuring we protect the rights of the individuals concerned and that we do not, in our haste, enact legislation that turns out not to protect the public as it should.

James Reilly (Dublin North, Fine Gael)
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Likewise, while I accept there is a serious issue that has to be dealt with, I am concerned that rushed legislation will be poor legislation which we will have to revisit. I too am concerned that, despite telephone calls, I have not been able to consult with the sort of people I would like to have been able to consult, such as the Mental Health Coalition. I know my colleague, Deputy Dan Neville, tried to contact Amnesty International to obtain its view on the Bill. Nobody was aware of the manner in which this legislation would be presented to us, but I am sure the Psychiatric Nurses Association, Schizophrenia Ireland and other consumer groups would have a view. This is what makes me nervous about taking this legislation without having had time to examine it fully.

A couple of obvious questions spring to mind. Naturally, as a GP, I am only too well aware of the difficulties that present, particularly at night. In one experience I had as a young doctor, I arrived at a house and was asked whether I was the garda, such was the situation - I will not go into the details but a weapon was certainly involved and it was not a nice situation to be presented with, although it worked out to the good in the end. The Garda Síochána is fully committed but its members are under a great deal of pressure, although we will not go into the broader political talk of how the country is rife with crime and gangland killings. Gardaí cannot always get to a scene in a timely fashion and, while there is a certain attractiveness in what the Minister of State says, like Deputy O'Sullivan, I would have grave reservations about regulation. The current individuals concerned may be of the highest calibre but there appears to be no proper regulation, no regular inspections or a proper selection process from an independent body such as HIQA, Health Information Quality Authority. These companies could change hands and different people could be employed from those originally in place.

Have all these people been vetted by the Garda? Have they all been trained in matters of hygiene? Have they all been trained in restraint? The Minister of State mentioned the need for staff to sometimes talk a patient down. Are these people trained in counselling techniques and how to deal with high-energy, disturbed behaviour? Are there standards for the vehicles such people will use? Are there standard instructions for how often they should be cleaned after use by someone who, for example, may have been covered in blood or who may have become incontinent? All such issues must be addressed by standards which apply to this or any other agency used for the purpose of protecting patients.

Currently there is no regulation of the ambulance services whether public or private. I am in receipt of knowledge today of a situation in which one private ambulance operator took over another only to find some 20 people in the operation had never been vetted by the Garda and that the inspections carried out had been of a very cursory nature. If a firm has 100 employees and it claims they have all been vetted it is easy to check this by counting 100 forms vetted by the Garda. However, it is possible for a firm to state it has only 20 employees and produce 20 forms while in practice employing 100 people. There are so many loopholes at present that I could call for the regulation of ambulances to be addressed under the Health (Miscellaneous Provisions) Bill too. We must have such regulation if outside agencies or bodies are to be used. I caution that some two or three weeks of this session remain and we could revert to this section and allow time for consultation with interested groups. That would ensure we would not find ourselves returning to the whole Bill because people expressed serious concerns. We may do our best but such people would have a greater knowledge of these areas and may recognise problems we cannot see.

I wish to raise the serious and important issue of the need for the Irish Medicines Board to address and assess medical devices that come to the market. The former Minister of State, Deputy John McGuinness, has alluded to this matter in the past. I realise this is slightly off the point but the medical devices industry is worth €6 billion, representing 9% of our exports, and it employs some 26,500 people. It has the advantage of access to the European market. If the board is efficient such that it can assess devices rapidly and get them to the market it confers a very significant opportunity to grow the industry.

However, there is not enough staff in the Irish Medicines Board. I trust the recruitment ban will not interfere with such an important industry. Having said that I do not wish in any way to demean the issue of mental health or the need to regulate the sector and the agency we propose to put in place. Unless the Minister can include the amendments there is no way I could vote for the amendment, although I recognise it is badly needed and a significant issue exists in this case. However, I do not wish to fall into the trap of rushed legislation leading to bad legislation and more problems later on. I believe the Minister of State has no wish to find himself in the courts again and nor do any of us.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Is there an agency or entity already performing these roles? Are such agencies registered and, if so, with whom do such bodies register? If these agencies are in situ, who is being recruited to perform these roles? We are discussing externally assisted involuntary admissions by those not directly employed by the HSE or members of the Garda. Such people operate in the private sector. This is a form of privatisation in terms of the placing of people within psychiatric institutions involuntarily. What are the determinants for qualification as an authorised person? What oversight applies to the conduct of such authorised persons? What steps are in place to ensure authorised persons throughout the jurisdiction act in accordance with the highest standards? Have such standards been laid down anywhere and, if so, where have they been laid down and by what mechanism?

I refer to the amendments bounced on us by the Minister of State, the fact that there has been such a degree of urgency and that these measures could not have been taken independently of the Bill. Is there a legal challenge in train or in preparation of which the Minister of State, the Department or the HSE is aware that has given rise to the rushed introduction of these amendments? There have been precedents involving the Minister for Health and Children. What exactly has given rise to the introduction of these amendments with such speed and such a determination to refuse to accommodate proper scrutiny and real engagement with all the various interested parties to which other Deputies have already alluded and with whom I also have an excellent working relationship? I would appreciate an answer to all these questions but especially a clear answer to my last question.

Dan Neville (Limerick West, Fine Gael)
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I welcome the opportunity to make a contribution. I was involved in the passage of the 2001 Act along with Deputy Jan O'Sullivan. It was a tortuous process because of the level of consultation and discussion with the then Minister and the level of concern expressed throughout, but especially on Committee Stage. The introduction of this section in one fell swoop is of great concern because of that previous experience and the concerns expressed at that time.

I recall clearly at that time the concerns expressed regarding the changes the then Minister proposed. As with the two previous speakers, I will endeavour to obtain advice on this matter because I am not in a position to technically evaluate fully the implications of the measures in respect of the rights of people. There are experts in this area who have advised us in the past but we have not had the opportunity to consult appropriately. I am concerned that the Opposition is not empowered to fully comprehend the implications of the measures because we have not had the opportunity to do so.

Who will be authorised to do this work? No criteria is laid down regarding how to select people or an organisation. Will the work involve security people, a bouncer's organisation or someone heavy handed enough to handle people? What training is necessary and what criteria has been laid down? If criteria had been laid down for the selection of people it would alleviate our concerns with the Bill, but it has not been included. Why is the detail in this area so vague such that the Minister of State has not included criteria for the selection of people to carry out the removal of people? We have encountered very serious situations in which people must be restrained for their own sake and for the sake of others. Some very serious events have taken place regarding the safety of professional clinicians who have had to deal with certain situations. I know of an unfortunate situation in Limerick where life was seriously endangered. We recognise there must be some level of intervention with respect to people with difficulties but the concerns expressed on Committee Stage in 2001 are still relevant. When that Bill was being taken in the Oireachtas at the time, I do not remember if this was one of the many issues we raised.

The introduction of a separate Bill would have been an opportunity to discuss the whole area of mental health and mental health services. We have been seeking a comprehensive debate on the independent monitoring group's report which expressed concerns about the absence of identifiable leadership in the implementation of the recommendations of A Vision for Change. The group expressed concerns that a more comprehensive plan had not been put in place to implement those recommendations. The group was very disappointed with the slow rate of progress in the implementation of the recommendations. A Vision for Change cannot be implemented effectively without a national mental health service directorate and from private discussions with the Minister, I understand there may be some moves in this regard. It is hoped these will not be delayed.

The group recommended a dedicated leader at senior and national level and this absence has impeded progress in the implementation of the recommendations. The group said this was contributing to the continuing poor facilities and standards of care in some areas and an inconsistent approach in embedding the recovery services for people with psychiatric illnesses. It would have been an opportunity to discuss this matter.

I have been endeavouring to raise a matter on the Adjournment on the subject of the report on St. Luke's Hospital in Clonmel. This was as serious as many of the reports that have been debated at length in the House but it will not be afforded the same status as some of the other reports into serious matters which have been debated here in the past six months. I ask the Minister of State to comment on the recommendation that the hospital be closed. There are very serious allegations about fractures not being identified for some time after they occurred; sensitive and frail patients being in close proximity to patients who are more aggressive and concerns about the safety of patients. I am very disappointed that the same rigour has not been applied to the Minister of State's amendment as was applied to the original Bill in 2001.

John Moloney (Laois-Offaly, Fianna Fail)
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I thank Deputies for their contributions to the debate. I intend to deal in rotation with all the points raised but I wish to clarify a point made by the second last speaker, Deputy Ó Caoláin who quite properly asked if this Bill is in advance of some court challenge. I wish to inform him that this is not the case. This is not a matter of trying to protect against issues coming down the line.

I will deal with the issues raised by Deputies. I fully agree with Deputy Jan O'Sullivan that it is a matter of balancing rights and this should be fundamental to any change in legislation, particularly legislation which clearly in some instances was introduced in a hurry. I accept that point and I wish to apologise to the House that consultations between the Whips or the party spokespersons did not occur in the past few days. However, I refer to the time constraints as the House rises for the summer recess in two weeks. I do not use this as an excuse. I also refer to the fallout from the High Court judgment.

I take the points made by Deputies Reilly and Jan O'Sullivan regarding the safeguards in the vetting procedures. I take the point made by Deputy Ó Caoláin about privatisation. I listened to Deputy Reilly who is a GP and he referred to the issues of basic cleanliness of ambulances and the expertise of staff. All these matters will be dealt with by way of HSE protocols. I acknowledge that "protocol" is a loose word and it may be suggested that they only last for varying periods of time but the test of their validity will have to be in the criteria they will set down for employees.

I take into account the fear of changes in the mental health legislation because of possible future implications. I do not say this as an excuse but up to now there has been a difficulty in securing professional people to assist with involuntary patients. The use of external agencies is not just a matter of convenience. All personnel must comply with the mental health commission guidelines. Even as I say this, I accept that guidelines are one thing but it is a question of how strong the guidelines in the protocol will be. The guidelines and the protocols brought forward by the HSE will need to ensure that all the necessary prerequisites are in place and the most obvious would have to be the vetting procedures. Assurances will be required from external companies along with Garda security and background clearance, and with the experience of such staff in dealing with mentally ill patients. These would have to be included in the protocol.

I made the point in my contribution that there must be compliance with the guidelines of the mental health commission. The requirement for drivers is that they should work with the Garda Síochána whenever assistance is required. Protocols will be put in place by the HSE. The authorised persons will be authorised only for a period of up to 12 months and there will be continuous checking but the vetting procedure has to be put in place in advance.

As Deputy Reilly points out, HIQA should have an involvement in preparing the protocols proposed by the HSE and I would expect this to be the case. Part of its involvement in the protocols should be the vetting of applicants. I take the point made about ambulances. I do not wish to deal today with the medical board issue as this is a separate issue. We must take care when dealing with mental health legislation and in particular when there is a time constraint. I accept that Members have not had an opportunity to check with advisory groups, such as Amnesty International, but I plead with the House to understand the time constraint. The High Court judgment means that if this matter is not regularised we may find ourselves in a difficulty in the coming months with a person who needs to be transferred involuntarily to a hospital or institution. We must accept the fact that care staff have been properly trained. The people who have acted in this capacity have been psychiatric nurses. No one could act in this capacity if he or she did not have a qualification in mental health support as well as additional training in, for example, talk down techniques and de-escalation.

I always read with interest the contributions made by Deputy Neville in this area. I hope Members do not think this legislation has been bounced upon the House. We are faced with a severe time constraint.

A full review of the Mental Health Act will be undertaken in 2011 when the Act has been in operation for five years. We will then have an opportunity to tease out these issues. In the interim, this legislation will prevent people being exposed to harm by themselves or others in cases where the required staff is not available.

Deputy Neville requested a debate on mental health. That will not be possible before the end of the session but I accept his point and I will ask the Government to provide time for such a debate. Vision for Change is now in the fourth year of a ten year programme. Huge uncertainty surrounds the funding of mental health supports and the new capital programmes. Many people have asked what will happen to the capital assets involved in mental health. I intend to have a public review of Vision for Change during September or October next to reaffirm and establish how we should proceed with the rest of the programme's recommendations and how funding can be secured. It is no longer enough to talk about ring-fencing funding for mental health. Legislation must be put before the House to ensure that funding is raised. These issues should come before the House. I will support the call for that debate. I will return to the Clonmel issue, raised by Deputy Neville, at a later date.

I am not aware of any further challenges to the High Court ruling. We need only regularise matters following the ruling. Statistics for the last year for involuntary referrals in various counties show the widespread use of staff who are not members of SIPTU or the Psychiatric Nurses Association of Ireland, PNA. It is clear we could not provide the personnel resources for the involuntary transfer of patients. That is why we need this legislation. I concede that the Bill is rushed but it arises from the highly principled motive of ensuring that people who cannot care for themselves are cared for by the State.

James Reilly (Dublin North, Fine Gael)
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When was the High Court judgment made?

John Moloney (Laois-Offaly, Fianna Fail)
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It was five weeks ago.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Minister referred to PNA personnel. The implication of what I heard him say is that people who would be recruited to perform these roles and responsibilities would have, at least, the standard of knowledge and training required of professionals within the psychiatric services. That would be fine, but nothing in the Bill makes it a statutory requirement. Guidelines are not enough. There is no clear protocol or definite set of criteria to be met by those responsible for recruiting this personnel. Can the Minister of State assure us of the standard of person who would carry out this work? The words "agency" and "agencies" have been used. Are there agencies currently in existence which offer this service to the health services, and the mental health services specifically? Do they cover particular areas or regions? Where they do not exist, what are the current criteria for the recruitment of people to perform these roles?

I accept that a High Court decision has been handed down. Nevertheless, I find it difficult to understand why these amendments had to be pressed today, with such little notice to health spokespersons. The opportunity properly to inform ourselves to engage in this discussion is seriously impaired. I hope this precedent will not be repeated. It is a recipe for very bad decision making and very bad law making.

Jan O'Sullivan (Limerick East, Labour)
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I share the concerns expressed by Deputy Ó Caoláin. It appears there is not a registration system and that we will rely on HSE protocols. The legislation contains no requirement that the people concerned should be in any way professionally qualified. The Minister of State says he expects they will be and that the kind of people who do this work generally are. However, the legislation does not require it. Professionally qualified people are, generally, governed by a regulatory authority of some kind. Doctors, for example, are governed by the Medical Council and they can be struck off.

Generally, if somebody does not act in accordance with the norms and standards expected of them as professionals, there is a consequence. However, if anybody can do this, there might be no consequence if that person does not behave appropriately in restraining the person concerned. It is not easy to restrain somebody who does not wish to be restrained. We are not discussing a situation where somebody just asks a person to come back to a place. It will probably be fairly physical. We are obliged to ensure there is proper protection and that the people concerned are appropriate. This is about a balance of rights and ensuring people's rights are protected.

I have looked at the wording of the original Act. It refers continually to clinical directors, consultant psychiatrists, registered medical practitioners and so forth. The amendment, however, refers to the registered proprietor of an approved centre. That is privatisation, in effect. The proprietor of a public institution is presumably the State, the HSE or the Minister, that is, wherever these institutions are vested. The amendment uses the term "registered proprietor" and states: "Where the registered proprietor of an approved centre has entered into an arrangement referred to in subsection (1) with a person, the clinical director of that centre may authorise in writing...". There is a handing down of authority to the clinical director but it is the registered proprietor who makes the agreement with the authorised person to carry out the work of bringing the person back. Why is that language used in the amendment? I have seen no reference to registered proprietors in the original Act, which refers consistently to consultant psychiatrists, medical practitioners, registered nurses and staff. Why are proprietors getting involved rather than clinical directors?

I have a problem with being dependent on HSE protocols to ensure this will be done in an appropriate way. HSE protocols are all very well for some of the issues raised by Deputy James Reilly, such as cleanliness and the like. However, with regard to a person's behaviour to a very vulnerable individual who is having something done to them that they do not want, that is, being brought back to a centre against their will after absconding from it, it is vital that the person who carries out this work is appropriate, and has appropriate standards. There must be some type of appropriate redress if it is not done in the right manner. Under the original Act this is done by clinicians who can get the assistance of the Garda. My reading of the amended version is that the authorised persons can also get the assistance of the Garda, as in some cases the Act provides for entry of a dwelling or other premises by force if necessary. I presume the gardaí would do that. Perhaps the Minister will clarify if these authorised persons can also get the assistance of the Garda and how that will work.

There are very real issues here and I am not reassured by the fact that the HSE will introduce protocols. I do not believe it addresses the human rights elements of this.

James Reilly (Dublin North, Fine Gael)
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Another week will not give rise to tumultuous events. We could avoid rushing this legislation through and consult with the various bodies that should be consulted. This is important legislation. I acknowledge there is an issue and that it must be addressed. Professionals would acknowledge that as well. However, input on the needs of patients, as represented through Amnesty International, Schizophrenia Ireland, the Irish Mental Health Coalition and the Psychiatric Nurses Association, would be useful.

This is very serious legislation, which gives some people power over other people. The only people who have that power currently are answerable to the Medical Council and An Bord Altranais. We are giving this power to an agency, and the legislation does not even contain an amendment providing that these agencies must employ psychiatric nurses for this duty. It only refers to an agency. Like Deputy Jan O'Sullivan, I noted the use of the word "proprietor" and wondered about its implications. I also wondered what the current situation is vis-À-vis institutions such as St. John of God Hospital, St. Edmundsbury and so forth where people can be committed by two doctors. Only doctors can do it, not the proprietor. Will the proprietor make arrangements with an agency?

John Moloney (Laois-Offaly, Fianna Fail)
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The legislation remains the same. It still requires two doctors. This is to assist involuntary admissions.

James Reilly (Dublin North, Fine Gael)
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Yes, but the concern is that a private individual who might own an institution for the care of the psychiatrically unwell, run by doctors, may enter into an arrangement with other private individuals who are agents to do this work. There is a big loophole there, with much room for problems and trouble, if we do not specify the standards in legislation and if it is not regulated by legislation. There is no regulatory authority to regulate this body or agency involved in this type of work. That is very important.

I also seek clarification on the issue of using whatever force is necessary to gain entry. That should be restricted to the Garda and not include a private security firm. We have seen enough of those in the United States of America.

John Moloney (Laois-Offaly, Fianna Fail)
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I understand why Members quite properly wish to tease this out. The agency referred to is known as Nationwide Health Solutions. It has not come into existence this week but has been operating since 2006. I confirmed in my earlier response that it depends on protocols. I understand the worry in that regard. However, there is only one agency operating in the country. To remove doubt as to whether people are professionally trained or in a position properly to bring somebody involuntarily to an institution, all the staff involved up to now have been qualified psychiatric nurses. I accept that the future is the issue. I do not wish to labour the point but the reason the legislation is before the House is due to the time constraint and the High Court judgment. More importantly, the HSE on approximately 204 occasions was obliged to use outside agencies to bring in people involuntarily because it did not have the staff required to do so. It was an attempt to ensure that people who could harm themselves or others could be transferred professionally by people with the appropriate qualifications to do that.

The safeguard is the involvement at all times of the Mental Health Commission. With regard to protocols, the Mental Health Commission will have an involvement and oversight regarding the guidelines to which Nationwide Health Solutions will conform.

James Reilly (Dublin North, Fine Gael)
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Can I make a helpful suggestion? I accept we are against the clock. We should have another half hour to discuss this, with an opportunity to consult the relevant people. I suggest an adjournment until Thursday. I am sure we could include this somewhere in the business of the House and avoid a vote. Otherwise we have no choice.

John Moloney (Laois-Offaly, Fianna Fail)
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I assure the House there are protocols. While they might not be strong enough, heretofore they have been used. I assure the House there are protocols although these may not be strong.

I shall take the Deputy's point.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I wish to make a quick point.

Jack Wall (Kildare South, Labour)
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As it is now 6 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Health and Children and not disposed of, including those in respect of which recommital has been decided, are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed."