Seanad debates

Wednesday, 23 March 2011

Mental Health (Involuntary Procedures) (Amendment) Bill 2008: Committee Stage (Resumed)

 

6:00 pm

Photo of Joe O'TooleJoe O'Toole (Independent)

I wish to add to my earlier contribution. With all due respect to Senator Prendergast, whom I know is very committed, she undermined her own argument. It may well be the case that relatives and other people should be consulted but in her contribution she made it quite clear that she was only referring to two consultants. In 2007, my former colleague, Dr. Mary Henry, and I put forward a piece of legislation entitled, the Mental Capacity and Guardianship Bill. I refer to section 4 of that Act:

(a) no intervention is to take place unless it is necessary having regard to the needs and individual circumstances of the person including whether the person is likely to increase or regain capacity;

(b) any intervention must be the method of achieving the purpose of the intervention which is least restrictive of the person's freedom;

In reference to a person who does not have the capacity, the section states:

(c) account must be taken of the person's past and present wishes where they are ascertainable;

If it were the case that what Senator Prendergast said at the beginning of her contribution was correct I would have a slightly different view. The section further states:

(d) account must be taken of the views of the person's relatives, primary carer, the person with whom he or she resides, any person named as someone who should be consulted [such as consultants]and any other person with an interest in the welfare of the person or the proposed decision where these views have been made known to the person responsible;

(e) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy

Those are the sections of the piece of legislation that deal with the points that I believe Senator Prendergast also wishes to deal with but this is not in the legislation before us. There is no requirement to consult with any of those people. I want such a requirement and I am supporting the legislation from the Green Party on the basis that it is the best available at the moment. I said at the beginning it is not perfect but it could be made perfect by dealing with capacity and guardianship along the lines I have just outlined and there is a lot more in the legislation introduced by former Senator Mary Henry and me at that time in order to deal properly and in a balanced way with these issues. Governments do not want to know. I appeal to the Minister of State that support for this legislation is only a first step. I would like to see the 2005 review which was referred to by Senator Norris and to deal with the issue of capacity which protects everybody, the consultant, the patient, the family, the friends. It is multidisciplinary in that regard. This is what is required of the capacity and guardianship elements and they are not in the Bill as it stands.

The current choice is just two consultants who can ride roughshod — I do not say they would do so but that is the way the legislation is written — over the views of the person. Consultants tell people everyday that smoking is bad for their health and they should not smoke but people continue smoking and with the full capacity to do so. There is a lot to be said for saying we should not allow them to do so but I am not suggesting this argument for a moment. My point is that the current legislation is flawed and the legislation being proposed is not perfect but it is better. In that regard I appeal to Members to support it. I appeal to the Minister of State to take it that step further. Every one of the issues raised by Senators Corrigan, Prendergast, Harris and Bradford can be dealt with by a combination of a review and mental capacity and guardianship legislation.

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