The Law Reform Committee of the Law Society welcomes this Bill, generally speaking, in that it makes provision for a greatly improved system of protection for those involuntarily detained in mental health institutions.  However, the Committee must express its disappointment at the non-inclusion of provisions for Adult Care Orders for the protection of the adult mentally ill.  The Committee still strongly feels that the adult mentally ill require protection from exploitation and ill-use in the same way that children do.  Other jurisdictions have made such provision, and we would, for example, refer to the Hong Kong Mental Health Ordinance which provides for the making of what is termed a Guardianship Order.  As the Irish population ages, the number of such vulnerable people will increase.  The protection of such vulnerable people should not be delayed until the publicity of a tragedy forces hasty legislation.

The Committee is also concerned that the Bill does not contain specific protection for Voluntary Patients (other than the provisions in Sections 22 and 23).  The point has been made to the Committee that frequently the consent of a voluntary patient may be suspect, and may not be a full and informed consent.  For example, patients may often consent to be admitted voluntarily under threat of involuntary committal.  It is suggested that the Mental Health Tribunal be given power to review the consent of all voluntary patients who are more than, for example, 28 days in hospital.  The submission that follows makes other references to voluntary patients.

Also, it is suggested that the form of application for committal should be as simple as possible and should be readily available in Doctors’ Surgeries, Garda Stations, Post Offices, etc.

On a general level, the Law Reform Committee is concerned that the Bill would be unworkable without the provision of adequate resources.
 

COMMENTARY ON SPECIFIC PROVISIONS OF THE BILL
 

Section 2.

“Child”.  This definition should harmonise with the Child Care Act and similar legislation.

“Parents”.  Does this include the father of a non-marital child?  Should reference be made to the provisions of the Status of Children Act, 1987?  The definition does not refer to a person in loco parentis.

“Relative”.  Does not refer to a cohabitee, step-parent or step-child, and the Committee believes that it should.  There would be many people within these additional categories who should be included in the definition.  Furthermore, a person against whom an order has been made under the Domestic Violence Act, 1996 should be excluded from making use of the provisions of Section 8, and should be disqualified from making orders under Section 9 and 13, and any similar Sections.

An extended definition of “parents” and “relative” is perhaps not necessary for the purposes of Section 8, because “any other person” can make an application for an admission order.  See 8 (1)(c).  However it will be necessary for Sections 9 and 13, for example, as the doctor could be a step-relative of the patient, or a cohabitee.
 

Section 8.

Subsection (2)(c) perhaps should be amended to “any approved centre” instead of “the approved centre concerned”.  At the stage of application is it necessary to state “the approved centre concerned”?  The applicant may not know which appropriate approved centre will be involved.  The exclusions mentioned above in the commentary on the definition of “Relative” are apposite here.  See Section 5 (7) of the Powers of Attorney Act, 1996.

Generally, the Committee is concerned that members of the Garda Síochána are no longer expressly included as persons capable of making an application. Gardaí are authorised to make special applications under Section 165 of the 1945 Act and the White Paper on a New Mental Health Act suggested that they be included in certain circumstances.  The role and powers of Gardaí should be set out clearly in the Bill.
 

Section 9.

See commentary on the definition of “relative” above.

In subsection (3)(b) change “the approved centre” to “an approved centre”.

In subsection (3)(c) widen the definition to include step-relative, cohabitees, and non-marital fathers.  See above.

It might be appropriate to provide that the GP be entitled to seek psychiatric or legal advice when making a determination under Section 9(1).
 

Section 11.

(5) The word “immediately” might usefully be added, to ensure that the patient is not kept overlong in a Garda Station.  See “forthwith” in (2) and “immediately” in (4).
 

Section 12.

(1) Is it entirely reasonable to expect the applicant to bring the patient to the approved centre?  Surely the onus should be on the approved centre, upon being advised of the making of the recommendation by the registered medical practitioner.  The Committee would be opposed to the imposition of this statutory duty on the applicant.  Alternatively the duty could be imposed on the local Health Board.

(4)(a) The word “patient” is inappropriate, because an admission order has not yet been made.  The word “patient” should be replaced by the words “person concerned”.

(4)(b) Why “return”?  We suggest “removal”.
 

Section 13.

With regard to Section 13(1)(b), it might be appropriate to require that the GP should be informed before the consultant psychiatrist refuses to make an order, and certainly that the family should be so informed.

The 24 hour period in Section 13(2) should be reduced to about four hours, except in exceptional circumstances when it should not be longer than 12 hours.

The exclusions contained in 9(3) should apply to the consultant psychiatrist in subsections (1) and (2).  See above.
 

Section 14.

(3) Insert “consultant” before “psychiatrist” in line 5.

(4) The Committee feels that “one week” is too long.  It is suggested that the examination should take place on the day of the making of the order concerned.
 

Section 15.

(1) The Committee is of the opinion that “as soon as may be” is too indefinite.  We suggest that “…in any event not later than 24 hours after making it…” be added.

(2)(c) Add “within the period stated in subsection (1)” after “given”.
 

Section 16.

(1) “as soon as may be” is too indefinite.  Add “…and in any event within 24 hours of receiving it…”

(1)(b) The Committee suggests that there should be provision for the legal representative to be provided with the resources to engage expert assistance, such as an independent consultant psychiatrist.

(1)(c) The order should be changed to (i)(iii)(ii) in order to make it clear that the Commission’s appointee could examine the records relating to the patient before interviewing the responsible consultant psychiatrist.  Also, the period of 14 days within which this appointee must report appears too long.
 

Section 17.

The Committee is of the opinion that the period in subsection (2) is too long at 28 days, particularly as many involuntary detentions are for less than that period.  There might be a risk of successive “committals” for, say 14 days, none of which would be long enough to permit the Tribunal to make a decision to review.  Provision should be made to avoid this possibility.  While Section 27 permits a discharged patient to have their detention reviewed, the Committee believes this is an insufficient protection, and there should be an onus on the Tribunal, in every case, to conclude the review procedure and make a decision.
 

Section 18.

(1) The Committee notes the limited grounds of appeal, and suggests that they should be extended to include material or substantial non compliance with the Act.  This would have the effect of encouraging good practice.

(4) Here the onus is on the patient to prove he/she is not suffering from a mental disorder.  This is wholly objectionable, and the onus should be as in Section 17 (1)(b).

(8) The Committee approves of this novel, and welcome, departure from the “in camera” rule.

There should be a provision that the Court must hear the appeal within 28 days of the Notice of Appeal.  Otherwise, depending on the Circuit, the renewal order could very well have expired by the time the appeal is heard.  Family Law cases in many Circuits are not heard until there has been very substantial delay.

There should also be a provision that the appeal be heard in a family court as defined in the Judicial Separation and Family Law Reform Act, 1989, as amended.

(11)(c) “who” should be “which”.

(14) This means that the consultant psychiatrist who prepared the report need not attend court, and shows the need for the legal representative of the patient to be able to adduce expert evidence to the contrary.  The Committee is concerned with this aspect, and is of opinion that the consultant psychiatrist should attend court if required by the Judge or the Appellant.
 

Section 21.

(2) Should be restricted as in 20(4).
 

Section 22.

(2) Widen definition of parents.  See ante.
 

Section 23.

The Consultant Psychiatrist should be disqualified as in 9(3).
 

Section 24.

(1)(b) How is this to operate as Section 8 is excluded from applying to children (see Section 8(1))?  The Committee wonders why the Court enters the picture with regard to children.  It should be possible to utilise Section 8 for a child.  It seems extraordinary for parents who are willing to use Section 8 to be involved in Court proceedings, with the consequent costs to parents not entitled to legal aid.

(2) The Committee suggests that the time frame be made specific by the addition of “…being not later than 14 days from the date of the application.”
 

Section 27.

See comments on Section 17.  This Section should be amended to compel the Tribunal to complete a review that has commenced.
 

Section 28.

The Committee suggests an amendment to give the Tribunal power to review the continued residence of patients in approved centres after they have been formally discharged, to ensure that they are freely and voluntarily consenting to stay in the centre.
 

Section 29.

The Committee considered the penalty to be inadequate.
 

Section 32.

(3)(c) The Committee considers this insufficient and suggests that the Civil Legal Aid Act be applicable.  Patients should be entitled to advice as well as aid.  This is particularly important.
 

Section 46.

(6) This reporting provision is inadequate.  It refers to financial matters only.  It should refer to the workings of the entire Act.  See comments on Section 32 above.
 
 

Section 47.

The Committee is concerned that there appears to be only one decision-maker on the tribunal.  It is suggested that there be a tribunal of three, a medical person, a lawyer, and a lay person.  A panel of people willing to be lay tribunal members could be instituted, and given the appropriate training.  A number of Law Society Committees, including one Statutory Committee, have lay members.

There should also be a disqualifying provision for the consultant psychiatrist as for Sections 9, 13 and 23.
 

Section 48.

(8) The Committee considers that there is a risk that proper (and uniform) procedures will not be followed if tribunals are heard completely in private.  It is suggested that a provision similar to Section 18(8) be applied.  Relatives certainly should not be excluded.

(9) The Committee considers it inappropriate that absolute privilege only applies to statements when made by the members or officials of the tribunal.  Statements by the patient and his/her legal representatives, and witnesses, should also be absolutely privileged, as in a Court situation, to facilitate a full and frank exchange of views.
 

Section 50.

(1)(b) While the Committee has no objection to the Inspector reviewing and reporting on mental health services, as mentioned above, it considers that reporting should be of all matters coming under the purview of the Bill.  The Inspector has a duty to report to the Commission, but the Commission does not appear to have a duty to report to the Minister or the Oireachtas.  The Inspector should also furnish his/her report to the appropriate Oireachtas Committee.
 

Section 51.

(a)(i) The Committee suggests that there should be a statutory duty on approved centres to make patients aware of their rights to see the Inspector.
 

Section 55.

(b) Add “in writing and…” after “…information…”
 

Section 56.

Definition of “treatment” (in Section 2) confines it to treatment for the purposes of ameliorating a mental disorder.  Provision should be made for the treatment of a patient for ameliorating a physical disorder while that person is bound by an admission order, with the appropriate safeguards.  The Inspector should have the obligation to review and report on the medical treatment of both mental and physical disorders of both voluntary and involuntary detained patients.  (See Section 50.)

More generally, the GP (in relation to Section 9) and the approved centre (in relation to Section 13) should have power to give emergency treatment after the GP has made the recommendation, but before the mentally ill person has become a “patient”.  In many cases it would be necessary to administer medication to sedate the person and Section 56 would need to be amended to permit this treatment.

Sections 57, 58 and 59.

The Committee considers that the protections given by these Sections should correspond as nearly as possible to Section 57, and that if the Tribunals do not have a role in Sections 58 and 59, then the Commission and/or the Inspector should have a specific function in policing these sections and reporting thereon.  The point has been made to the Committee that ECT is not very widely practised and so suggests that patients should be afforded the same protection with regard to ECT under Section 58 as they are with regard to psycho-surgery under Section 57.  Each course of ECT should be open to being appealed to the Mental Health Tribunal.

These Sections should also be made apply to voluntary patients.

There should be a criminal sanction for the infringement of these three Sections.  There is no sanction whatever as the Bill stands, and Section 72 will provide an almost complete amnesty in regard to civil proceedings for breaches of these Sections.  The disqualifications contemplated by Section 9 should apply to the consultant psychiatrists mentioned in these Sections also.
 

Section 63.

(5)(b) The Committee suggests that the Bill provide that registration may be refused or cancelled if the proprietor or a relation has been convicted of an offence under the Bill (not just Part 5) or an offence under the Nursing Homes Act, or similar legislation, and that the proprietor must hold certain prescribed qualifications.
 

Section 65.

(2) The Committee suggests that the Bill provide that qualifications of staff be prescribed.
 

Section 67.

The Committee considers the penalties on summary conviction to be inadequate.
 

Section 68.

The Committee strongly feels that this Section should apply to voluntary patients as well as “patients” as defined in the Bill.  Voluntary patients must have the same protection under the Bill as those involuntary detained.
 

Section 72.

The Committee strongly opposes this Section, and feels it may be unconstitutional.  At the very least, the Section should provide that nothing shall prevent proceedings being instituted where the act complained of was done in contravention of a provision of the Act (e.g. treatment without consent).
 

Section 73.

(2) The Committee suggests that 12 months is a little short, considering the complainant may be unable to make a complaint as quickly as a person not suffering from mental disorder.