Kathleen Lynch (Cork North Central, Labour)

I thank all Members for their good wishes and for welcoming me to the Seanad. I am not certain it is the way I would have chosen for my first visit but one must deal with the hand one has been dealt, as with everything in life. I appreciate the words of welcome. I hope that when I have finished saying the little I have to say we will realise we are not that far apart in what we all want. I hope we can come to an accommodation because the new Government intends to deal with all the issues referred to in this debate. The programme for Government as published deals with every issue raised today. I hope we can reach an arrangement whereby I can have a little more time to deal comprehensively with the issues which need to be dealt with.

In reply to Senator Norris's contribution, of a total of 44 patients sent for a second opinion, two psychiatrists disagreed with the referring consultant's opinion. It should be noted that very decent and honourable people work in the field of mental health. Because we know so little about it ourselves and because we have such a fear of becoming mentally unwell we are mistrustful and unsure of that area. This is our failing as opposed to theirs.

I have listened with much interest to the points raised in this debate and I have to admit that I have some reservations about the administration of electroconvulsive therapy, particularly in the absence of patient consent. My officials inform me that ECT is a recognised treatment for severe mental illness and is sometimes used to treat persons with severe depression who do not respond to drug treatment. In reply to Senator Bradford, I refer to people who do not interact with others, who neither sleep nor eat nor make eye contact and who are virtually catatonic, who are what the profession means by being "unable". However, I am also aware that ECT has many critics from within and without the medical profession and there is some evidence to suggest that memory loss can be a side effect. One does not need to be told by the medical profession to know there is a difference of opinion. The views expressed today show the range of opinion, from the extreme to the accepting to the in-between and this is the difficulty posed by this issue.

It is obvious that ECT is a controversial treatment and I will need some time to fully understand both sides of this very emotive debate. I want to examine the reputed benefits and reputed limitations of the treatment before I make any legislative changes. I also need time to consider if it would be feasible to simply delete the provisions relating to ECT in the Mental Health Act 2001 and allow common law to prevail. I ask the House to give me that time. My difficulty and concern is that doctors might choose not to provide the treatment under common law because they could fear being sued. If one is concerned about the medical profession protecting itself then this is an issue to be considered and about which one must take a sensible view.

I wish to make it clear that the legislation will be changed. The Government for national recovery is committed to a review of the 2001 Act which will be informed by human rights standards. In that regard I can assure all present that the promotion of the human rights of service-users will be the principle underpinning any and all mental health legislative developments in the future. For my part I believe that a patient should have the right to refuse ECT. Our laws should not allow two consultant psychiatrists to override the expressed wishes of a patient and force an unwilling person to undergo this treatment. I accept that the clinicians have the patient's best interests at heart and may consider the treatment to be life-saving. We all know of such cases. However, if a patient who has the necessary capacity to make the decision, has been given all the information about the procedure and opts to refuse treatment, it is incumbent on us to ensure that this decision is respected. I therefore readily accept that the word "unwilling" should be deleted from section 59 (1)(b) of the Mental Health Act 2001 and in that regard I am happy to support the amendment proposed by Senators Prendergast and Bacik. In the context of the administration of medicine, I am of the view that the word "unwilling" should also be deleted from section 60(b). However, I am conscious that there are patients who lack capacity and are not in position to make such an informed decision. I agree with the point about the lack of capacity legislation, which is not just about people with mental illness. It is about the elderly, people with intellectual disability and those who might not be fully informed about what the issues are. Only today I was discussing introducing capacity legislation with officials. While it is only a personal opinion that I have had for a number of years, I believe it should not be mental capacity but legal capacity and we should start to change our use of language.

I note from the activity report published by the Mental Health Commission last month that in 2009 some 35 programmes of ECT were administered to patients who were deemed by consultant psychiatrists to be unable to consent to the treatment. Should such patients have been denied treatment on the basis that they were not able to give their consent? I believe Senator Harris's contribution in this regard was well worth listening to. I also note from the report that in total, 373 programmes of ECT were administered in 2009 and in almost 88% of cases the ECT was terminated when improvement was indicated. Should patients who are unable to consent be denied that prospect of improvement?

I confess I do not have the answers to my questions and I need time to explore the issue. I do not want to rush to judgment on this; I want and need to look at the evidence base, listen to stakeholders and consult with my officials. It is important that we are now having a free and open debate in 2011 about the stakeholders. A number of years ago we would not have talked to stakeholders but would have talked to members of the profession. There are others who need to be consulted.

Over the coming weeks and months, I will meet relevant people and groups who, I hope, will give me a better and fuller understanding of my brief. In this regard I will meet service user representatives. We are fortunate to have a highly developed service user movement in mental health. I will meet representatives of the National Service User Executive and listen carefully to what they have to say on ECT. I will also of course meet representatives of the College of Psychiatry of Ireland. I will ask the college to reassure me about the efficacy and safety of ECT, and provide the evidence to convince me that ECT should continue to have a place in a modern psychiatric service.

I am aware that the previous Administration had proposed legislative changes and heads of a mental health Bill were at an advanced stage of preparation. While I will of course examine those proposals, I will make up my own mind on this issue. I am not simply a Minister of State who will carry on the baton. I will assess the situation for myself and ensure that we are heading in the right direction where human rights are paramount before I make my own proposals for legislative change.

As I am sure Senators are aware, the Government is committed to the introduction of a new mental capacity Bill. This new legislation will offer the possibility of assisted or substitute decision making, which may help solve the dilemma on the administration of ECT to persons who lack capacity. I will give this matter much consideration. I have a personal opinion and I will be informed by people who consider themselves to be greater experts than I am. There are very few people who lack capacity if the right supports are put in place. If one takes on board how people behaved in the past, what their environment was and how they communicate, I believe there are very few people who lack capacity and with the right supports we can give them that capacity.

I thank the House for raising this important issue and in particular I thank Senator Boyle of the Green Party. It is a vital issue that needed to be ventilated. I am not certain that I appreciate it being done in the first week after my appointment as Minister of State, but these are the things that happen. I have listened closely to the comments made here this afternoon and have taken note of the very genuine concerns expressed which I believe are motivated by the desire to do right by those with mental illness. I also share Senators' concerns for people with mental illness and their comments will go a long way towards helping me understand the issues and will undoubtedly inform my deliberations.

I am sorry that I cannot be more definitive on the proposed Bill at this stage. While I can assure the House that legislative changes will be made, I cannot give any guarantees as to the extent of those changes. I want to do what is right and what is best for our vulnerable patients because they deserve no less. I will not rush to judgment, but will instead take a measured and informed approach. Any decision I make will be evidence-based and taken against the backdrop of the need to protect human rights. In this context I ask the Senators for their support. I hope that between us and with people who have a genuine interest and who speak for those who have no voice, we can come up with a body of legislation that will ensure that the nightmare scenes we saw before will not be repeated.