Seanad debates

Thursday, 11 July 2019

Nithe i dtosach suíonna - Commencement Matters

Proposed Legislation

10:30 am

Photo of Maire DevineMaire Devine (Sinn Fein)
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I will try to be less cranky. The Minister of State has got an expanded brief today. As the other Members are in absentia, I know the response will probably not be very satisfactory but I thank him for coming to the House.

By way of background, in 2012, an expert group was appointed to review the Mental Health Act 2001 by the then Minister of State, Kathleen Lynch, and in 2015, a total of 165 recommendations were made. That seems like an eon ago but nothing has happened since then.

As a former psychiatric nurse and union representative, I was very involved with the review of the Mental Health Act and the law in terms of those working on the ground also. We saw that there was a dire need for the Act to be overhauled. Its aim was to protect people who go into hospital to avail of mental health care and treatment.

To date, only two of the expert group’s recommendations have come into effect. The Government has failed to meet its own timetable. In June 2016, the then Minister of State with responsibility for mental health, Deputy Helen McEntee, publicly stated that this would be done by the end of that year. Since then, numerous dates have been given for publication of the draft legislation but nothing has happened. These delays are hugely problematic given the lengthy duration of the review of the Act to date and the seriousness of the gaps in human rights protections for adults and children receiving inpatient mental health treatment.

We are all in favour of moving away from antiquated, Victorian-like methods to modern day treatments where people can have a say and be included in their treatment. That provides people with ownership of their treatment and it is much more effective and beneficial for the patient in terms of their recovery.

We are still only at the infant stage of this process, which has been going on a long time. We are waiting for new legislation but a body of work can be done in the meantime. I had legislation ready but, unfortunately, it was rejected. It concerns 16- to 17-year olds consenting to treatment. An anomaly exists in respect of the human rights of those individuals. Teenagers of that age can consent to physical treatment and dental treatment but when it comes to treatment of the spirit or the mind, whatever one wants to call it, they are not allowed consent. It will only take one young person to take this issue to the High Court for this Government to move very quickly on it, as it did earlier last year following instructions of the High Court on detention for periods of more than six months in a psychiatric hospital.

I acknowledge Deputy Buckley in the Gallery. Yesterday, I moved First Stage of the Assisted Decision-Making (Capacity) (Amendment) Bill 2019, which goes a long way towards protecting the rights of involuntary patients.

I have been naive in the past but in the three and a half years I have been a Member of the Seanad, I have become much more clued in to the way politics works. When one sits down with the Minister or officials in the Department of Health, one comes away wanting to shut down the Department. Are they so mean that they cannot share democracy? They covet everything. Measures cannot be seen to come from the Opposition yet it is in the spirit of democracy and the human rights of involuntarily incarcerated people that we try to give voice to them. That is not being allowed to happen because work has not yet been done on this reform yet Opposition Members like myself and Deputy Pat Buckley are working away on it. The Bill was passed by the legislative department here. We have worked very hard on the Bill only for it to be shut down without an alternative being offered other than to say it will be dealt with later.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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Thank you, Senator. The Minister of State to reply.

Photo of Maire DevineMaire Devine (Sinn Fein)
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It is as if they cannot allow any kudos to be given to Sinn Féin or other legislation proposed by the Opposition, including in terms of many money messages.

Photo of John HalliganJohn Halligan (Waterford, Independent)
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I thank Senator Devine. I certainly do not think she is naive.

On behalf of the Minister of State, Deputy Jim Daly, who is abroad this week on Government business, I thank the Senator for asking this very important question. As she will know, the expert group review of the 2001 Mental Health Act was completed in 2015. The group’s final report had 165 recommendations, most of which relate to changes to the 2001 Act. Shortly after publication, the then Government gave approval to prepare the heads of an amending mental health Bill to reflect the group’s recommendations.

Among the many changes to be made are the proposed expansion of the existing authorised officer service to play a more prominent role in examining alternatives to inpatient treatment as well as initiating applications for involuntary admission, the review of the detention of patients after 14 days rather than 21 days and also, as the Senator will be aware, allowing 16 and 17 year olds the right to consent to or refuse mental health treatment.

I can now inform the House that a draft of these heads has been finalised by the Department of Health and were passed on to the Mental Health Commission last week. The Minister of State, Deputy Daly, wishes to stress the importance he attaches to allowing the commission, and this is reasonable, which has an in-depth knowledge of the inner workings of the Act, to contribute to the detail of the Bill.

The Minister of State, Deputy Daly, is on record in the Oireachtas and elsewhere stating that while it is a matter of regret to him that it has taken time to bring these heads to draft stage, nonetheless, this work had to be balanced with the many other calls on the Department of Health to progress not only emergency and Private Members-related legislation but also other mental health strategies and agendas relating to services.

Work on the Bill by the Department has been front-loaded and the commission has effectively been provided with text that is far more detailed than heads alone and represents what the Bill itself would look like. We believe this should ultimately reduce the time required to finalise the actual text, once Government approve the heads of the Bill.

Some have asked if the current draft will be published and whether there will be an opportunity to comment on its contents. The fact is that this is an unfinished and effectively internal draft currently subject to comment from the experts who understand the detailed operation of how the 2001 Act operates. Following consultation with the commission, and when the heads are finalised and approved by Government, they will then be published.

Before the expert group began to discuss the revision of the 2001 Act, there was a full public consultation on the changes that should be made. Some 116 submissions were received at that time and the changes proposed fed into the workings of the expert group.

In addition, as the Bill proceeds through the legislative process, Oireachtas Members and all key stakeholders will have an opportunity to provide further input. I hope that reply allays some of the Senator's fears.

Photo of Maire DevineMaire Devine (Sinn Fein)
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I cannot say that it has, and the Minister of State did not expect me to say it did, but I thank him for the response. I would love an audit to be done on legislation proposed by those Members in opposition to see what legislation has been blocked.My sense is that everything is being blocked. I know the money message is being used and abused, and there have been questions over that.

These two Bills, the Mental Health (Capacity to Consent to Treatment) Bill and the advance care directives Bill, could be stand-alone Bills. We do not have to wait for the Government to act. I understand the Government is overwrought and busy but when people are overwrought and busy, they seek out a helping hand. Lo and behold, but it will not allow that helping hand to be the Opposition. If that is cynical, that is what I have learned. I ask no forgiveness for continuously speaking out against the blocks that are being put in the way. Meanwhile, people in distress and despair wait for their voices to be heard and wait their human rights to be legislated for.

Photo of John HalliganJohn Halligan (Waterford, Independent)
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I again thank the Senator for allowing me to update the House on behalf of the Minister of State, Deputy Daly. In sending the draft heads to the Mental Health Commission, we have reached a position that Oireachtas Members wanted us to reach - if the Senator recalls, that is what was being asked of us. Oireachtas Members have been requesting this for some time. We are obliged to await the views of the commission on the detailed drafts provided to it. The Minister of State, Deputy Daly, has asked me to reassure the House that he fully understands the importance of having the legislation in place before the expert group begins to discuss the revision of the 2001 Act. As I said, there was a full public consultation and a sizeable number of submissions, some 116, where received at the time. The changes proposed were fed into the working group. In addition, as the Bill proceeds through the legislative process, Oireachtas Members and all key stakeholders, including the Senator, will have an opportunity to provide further inputs. We have made a lot of progress in recent months and we are close to being where the Senator would like us to be.