[Senator Déirdre de Búrca   ]
There is widespread disagreement among psychiatrists in respect of this therapy and some of them refuse to administer it. There is great variation, on a regional basis, in the use of electroconvulsive therapy in Ireland. The therapy is so controversial because the long-term impacts are extremely serious. The impacts that have been reported by those who have undergone the procedure include emotional blunting, serious loss of memory, other cognitive impairments and a sense of a gross violation of their physical integrity. The World Health Organization is opposed to the involuntary use of electroconvulsive therapy, particularly on those under 18 years of age. Mental health difficulties and serious mental illness present a real challenge to society. We are moving in the direction of using more humane and multidimensional treatments. When one considers the history of psychiatry, one becomes aware that many barbaric practices which completely violated individuals’ rights were used. We are moving slowly towards the use of more humane treatments. The Bill proposes something from which future generations of mental health patients will benefit. A certain amount of courage will be required in accepting the Bill. There is a great deal of concern and ignorance among members of the general population and legislators with regard to whether what is proposed would amount to good practice. I argue, on the basis of the research carried out by the Green Party, that it does amount to good practice. I call on the members of other parties to support the Bill which will lead to the deletion of the sections of the Mental Health Act 2001 relating to the involuntary use of electroconvulsive therapy. Question put and agreed to. Acting Chairman: When is it proposed to take Committee Stage? Senator Donie Cassidy: Now. Agreed to take Committee Stage today.  Mental Health (Involuntary Procedures) (Amendment) Bill 2008: Committee Stage.
SECTION 1. Question proposed: “That section 1 be deleted.” Senator Dan Boyle: Section 1 refers to section 58 of the Mental Health Act 2001 which relates to the practise of psychosurgery. In consultations which took place since the previous occasion on which the legislation was debated, the other sponsors of the Bill and I agreed that it needed to be more focused and should concentrate solely on the involuntary use of electroconvulsive therapy. However, we are still of the view that action should be taken to tackle the legislative provision relating to the practise of psycosurgery. This should be done in the context of a future review of the Mental Health Act 2001. “Psychosurgery” is a more polite medical term for the practise of lobotomy. It has not been practised in this country for more than 30 years and the likelihood is it probably will not be used. We should be unhappy it is provided for in legislation but that is not the focus of the Bill. On those grounds, we propose that section 1 of the amendment Bill be deleted. The purpose of this debate and the Bill, as we hope to progress it, concerns involuntary treatment and the inconsistencies in how people are treated medically in terms of physical ailments and psychiatrically in terms of mental ailments and the principle of, and the ability to give, consent. It is not an all-embracing attempt to change the legislation. However, it points to one important area. As we move on to the other amendments, it is important to put on record that it is not about removing, in all circumstances, the use of ECT, a controversial treatment, but of minimising its use. There is an acceptable argument that it has been overused, misused and unfortunately has affected people in a way that may not have been intended. There have been victims of the use of this treatment. We will hear arguments as to how people have been treated successfully owing to the existence of the treatment. In striking the balance between people’s right to their own bodily functions and minds and the need to protect society and administer an appropriate course of medical and psychiatric attention, we can all agree, whatever else we agree about in terms of the general focus of this Bill, that our law is deficient and that the review of the Mental Health Act is overdue and needs to come to a quick conclusion and make appropriate changes in order that the rights of patients, in particular, can be better protected. Senator Feargal Quinn: I am in an area in which I am out of my depth inasmuch as I do not know a great deal about this. However, I have spoken to some people who have had involuntary treatment and it has had a very severe effect on their lives. One is torn between the disastrous personal experiences of people and the professional advice. I have checked up on this. It is very interesting that a much refined version of lobotomy, to which Senator Boyle referred, called neurosurgery for mental disorder is still carried out in the United States and in the United Kingdom in Cardiff and Dundee hospitals for persistent severe depression, anxiety and obsessive compulsive disorders. In 2006 a neurosurgeon in Cardiff described the practice as not a panacea but added that in patients for whom all other treatment has failed, it transforms their lives if it works well. Many professionals in the area still see a place for the treatment. Nobody is disagreeing with the treatment as such. There is an oft held perception that ECT is a high risk with little benefit but we must look beyond those pure assumptions or perceptions as to what ECT is and whether it can bring benefit to those suffering, even if they are unable to agree to the therapy at that time. It is worthwhile noting a report published in the Lancet medical journal by researchers at the University of Edinburgh and the University of Aberdeen who found ECT to be the most effective treatment for depression, particularly when the condition is accompanied by psychotic symptoms or hallucinations. However, they pointed out that there are some risks associated with ECT, including having greater anaesthesia and memory impairment. The researchers said that all effective treatments for depression, which is by nature associated with the most profound suffering, must be welcomed. In another report in the Lancet in 2003, the United Kingdom ECT review group found ECT to be one of the most safe and effective treatments in medicine. I am going to some pains to remind Members that it is a very effective treatment. As the Irish Journal of Psychological Medicine highlighted in its editorial published this year, this proposal is meant to promote the use of advanced directives made by patients early in the course of their illness when they have capacity. The assumption is that advanced directives will prevent paternalism and promote the rights of the patient. However, the authors of the article state that a ban on involuntary ECT would render them unable to treat some of the most mentally ill people in society. They state it would lead to medical deterioration and subsequent general hospital treatment for some. It would mean a basic violation of the treatment contract because the detention in hospital of involuntary patients should be based on the principle of reciprocity for which they state they must aim to restore decision-making capacity to patients. I agree with this view that medical practitioners must be able to have the ability to restore this decision-making capacity to involuntary patients. That is why I find it difficult to divide between the personal experiences of those who have spoken to me and the medical experience and the professionalism of the experts in that area of medicine. I am not saying we should not go ahead with this but I am expressing the concern that we should not jump into it without giving serious consideration to the very definite medical advice we have been given before we assume it is the correct thing to do. Senator Maria Corrigan: I welcome the opportunity the Bill provides to debate this crucial and, at times, very distressing aspect of care for people. The amendment that a programme of electroconvulsive therapy shall not be administered to a patient unless the patient gives his or her informed consent in writing to the administration is one with which we are all in agreement where the patient has capacity to consent. This demonstrates the need to move with speed on the capacity to consent legislation which we have been expecting. Much progress has been made on it and I hope it will be brought before us. It raises a vital issue for people with mental health difficulties and people with intellectual disability in terms of the basic human right it would restore to them. We need to see that legislation as quickly as possible because without it, we would find it difficult to implement this amendment. I refer to the group of people who may not have capacity to give consent. That is where the conundrum arises. Senator Quinn referred to past research. Results are mixed but there is a very clear body of thought in the area of mental health which would attest to the effectiveness of ECT for a very limited number of patients. The conundrum for us is what process should be in place where a patient cannot give consent. We have spoken about the idea of advanced consent. Looking at the issue of advanced consent would be very beneficial where somebody is at the initial stages of illness or has a history of illness and has the capacity to give consent when well. From my personal and professional experience, I know that for a very small number of people advanced consent would not have been an option because of the speed with which they found themselves suffering from mental health issues. The conundrum for us is what should be in place for those individuals who have not been able to give advanced consent and are not in a position to give consent at the time of proposed treatment. The amendment proposes that we would withhold the right for ECT to be administered. I am not too sure that this is the best way forward. We must have regard for the medical advice given to us. However, perhaps we should look at the provisions, whereby two consultant psychiatrists would sign off on it and at whether a different process should be in place which would see the involvement of a strong advocate for the patient who is not a consultant psychiatrist. I am not casting aspersions on the professional integrity of consultant psychiatrists and accept they act in the best interests of their patients, but I am trying to ensure our legislation provides reassurance that rights will be protected. Acting Chairman: As we are on Committee Stage, I ask Senators to speak to the section. Senator Frances Fitzgerald: I welcome the focus this Bill has brought to mental health issues. Judging from the comments of the Minister of State at the Department of Health and Children at a recent meeting of the Joint Committee on Health and Children, he will need support from all sides of this House if he is to maintain funding for mental health. We are at present discussing the quality of mental health interventions and how to ensure the highest standards of care and protection in all treatments. Electroconvulsive therapy will not be familiar to most Senators because it is rarely mentioned in the public arena. Like many other psychiatric treatments it has been practised behind closed doors in the past. This debate is part of an ongoing and necessary process of bringing transparency to such treatments. I previously suggested that the Minister of State or the Joint Committee on Health and Children should arrange hearings on the issue in order that interested parties can offer their opinions. I would like a better focus on mental health issues and the funding of services but I acknowledge the Acting Chairman’s advice that we speak directly to the section. The Mental Health Commission’s investigation of the administration of ECT without consent is relevant to this debate. The variations in ECT administration around the country raise serious questions and explain to some extent why the Green Party has brought forward this Bill. I would like to discuss the issue of involuntary treatment in the context of capacity legislation and a review of the Mental Health Act 2001. Similar principles should be applied in respect of standards on voluntary patients in areas such as continuing medication after three months if we are to ensure best practice in the treatment of vulnerable patients with mental health issues. The Bill will not apply to patients who are willing and able to offer consent but questions arise in regard to depriving incapacitated patients of the chance of being treated with ECT. I appreciate this is a controversial issue and that some countries have decided to discontinue ECT or have introduced advanced directives on its use. We should consider these options because I am concerned about the variations in treatment in Ireland. Advanced directives, advocacy roles or court directives could be developed to govern the use of ECT. I imagine that the numbers treated would decrease as a result. We must accept, however, that ECT remains a recognised form of treatment for certain conditions. I appreciate that some user groups and advocates of this Bill take the view that it should not be considered as a treatment. Such concerns are understandable given the nature of ECT. Equally, however, some expert researchers will attest to its usefulness. I was recently given a briefing by a psychiatrist who made a strong argument for the use of ECT as a last resort in very specific cases. I ask for the Minister of State’s opinion on the implications of depriving incapacitated patients of the chance to be treated with ECT. In the case of a person who lacks capacity, it may be possible to deal with the question of whether the treatment may be given under the common law doctrine of necessity. The safeguards may be more limited in such a situation because the legal provisions would be vague and less protective of patients. We will have to consider the legal implications of the Bill. If certain categories of people can benefit from ECT, I ask whether the Minister of State believes it should be maintained, albeit with enormous safeguards. Acting Chairman: On a point of clarification, the Minister of State may comment if he so wishes but as this is a Green Party Private Members’ Bill, Senator Boyle will be addressing Senators’ questions. Senator Liam Twomey: I ask the Minister of State to comment on the issues I will raise. I am probably the only Member of this House who has administered ECT. It is a truly barbaric procedure but so too is major surgery. We should consider the outcome of the treatment in asking whether it is necessary. I have witnessed the recovery of people who were incredibly depressed after they were treated with ECT but I was too inexperienced at the time to know whether they would have benefited from alternative treatments. We should discuss the Bill from the perspective of whether we are for or against ECT. I am not convinced that advanced directives would be as effective as some presume because nobody decides to embark on ECT before trying all the alternatives. Patients may not have the opportunity of considering advanced directives on ECT. If we are not going to ban the treatment, we should examine the effectiveness of the protocols governing its application. Anecdotal evidence strongly suggests that ECT is being used inappropriately and too often. Perhaps we should restrict the treatment to a limited number of institutions and consultants. When I was a senior house officer, consultants directed me to go to a ward, with an anaesthetist, to carry out ECT treatment on a patient. That was maybe too loose a way to carry out the treatment. When the Minister of State responds he may need to examine within his Department the protocols and procedures for carrying out ECT, by limiting it to certain institutions and tightening up the way it is carried out, who is informed or who allows it to go ahead. I do not know that advanced directives will work. Advanced directives for ECT should be the same as advanced directives for any form of treatment, for example, for someone involved in a car accident or who gets a serious illness and is left comatose. The advanced directives should kick in for anybody who no longer has the capacity to decide his or her own future. That could apply to dealing with someone who has Alzheimer’s disease. None of us would decide to write an advanced directive on what should happen if we get Alzheimer’s disease. We simply get it and then it is too late. This situation is similar. We should consider whether we abolish ECT or allow it to continue in a very rigid way. The Minister of State needs to bring forward proposals on that issue and that may be what we should debate on later Stages. Acting Chairman: I ask Senators to please stick to Committee Stage. We have completed Second Stage. Senator Déirdre de Búrca: I wish to respond to Senator Twomey’s point about whether we should support the use of ECT. The thrust of our amendment is to remove the involuntary use of ECT from the Statute Book. The question of removing it altogether is a wider one. It misses the point of our amendment. Senator Twomey said surgery is invasive. Acting Chairman: The Senator is responding to the queries but Senator Mullen has indicated he wishes to speak. I did not realise that Senator de Búrca wanted to respond. Senator Dan Boyle: The Senator is just making a point. Senator Déirdre de Búrca: Yes, I am just making a point in response to Senator Twomey. He said that surgery is involuntary in that it is invasive but will he consider how acceptable it would be to the public if we were to carry out involuntary surgery because we felt it would achieve certain outcomes? That would be absolutely unacceptable. As Senator Boyle said we must examine complementary approaches to treating physical—— Acting Chairman: The Senator is responding to questions. Senator Mullen has yet to speak. When we return to this side the Senator, or whoever wishes to respond, may do so. Senator Déirdre de Búrca: I wish to make one final point because this is important. When we raised this issue over a year ago, many who contributed said they did not know enough and wanted to defer to mental health experts, psychiatrists and so on. That was over a year ago. We have had an opportunity here—— Acting Chairman: I have to deal with procedure. Senator Déirdre de Búrca: We have had an opportunity for hearings and to invite in experts but have not done so. We are still at the point we were at last year. No reforms or changes have been made to the Mental Health Act. Senators have made very good suggestions today about the need for people with serious mental health difficulties to have advocates, for advanced directives, considering approaches that have social and psychological dimensions rather than relying on extreme, controversial biological treatments such as ECT and its involuntary use. It is important to respond to the points other people are making here. We need to take this issue more seriously. Over a year has elapsed since we introduced this Bill and unfortunately we have made very little progress. Acting Chairman: I have no problem allowing anyone respond but people must speak first, then the Senator can respond. Senator Rónán Mullen: As the Green Party has withdrawn certain aspects of its original proposals in this Bill, I will confine my comments to what remains, essentially whether ECT should be permitted in the absence of the patient’s consent. I admire the animating spirit behind this initiative and believe it is right and proper that we think long and hard in terms of human rights and dignity when we consider any kind of medical procedure. Without wishing to sound patronising, it is because people care so much that important issues are brought before us. Nonetheless, the question of consent raises a core philosophical issue. Our society correctly lays a strong emphasis on rights and that leads to our thinking about patient autonomy which is important most of the time. Rather like anti-discrimination provisions they are always right except when they are wrong. There may be circumstances in which, if we viewed this issue through a communitarian lense, or within the concept of paternalism, which is not desirable in itself because its language is wrong, it may remain a fact that in certain cases society must on occasion act in the best interests of some of its members. Therefore an untrammeled appeal to a doctrine of patient autonomy could end up operating not just against the common good but against the good of individuals in particular circumstances. That is what animates my contribution, with great and sincere respect for what the Green Party proposes. We all agree that ECT is the last resort. It is often prescribed for patients who are involuntary, unlikely to be willing or able to consent. That goes without saying. The question is whether the treatment is effective and whether the safeguards ensure that ECT is sparingly used only in cases where it is deemed to be necessary. I understand that in practice if the legal representative of the patient objects to the treatment the matter would go to the tribunal which safeguards the rights of the patient in whose best interests it acts. In Ireland today ECT is reserved for certain circumstances, such as catatonia, treatment resistant depression or severe depression with stupor, which would likely lead to a person’s death by starvation, and in cases where the person would die if not given ECT, especially if he or she is elderly or frail. Could this be an important and essential treatment backed by some kind of evidence base? I need to think about and research it more before ruling it out completely. The patients most in need of ECT, whether those in a catatonic state or depressive stupor, are generally unable, by virtue of their condition to give consent. Therefore, changing the law so that it can be given only with consent may result in deaths. While I am open to debating this issue I am concerned that the Bill, although well meaning, could be counterproductive and I wonder whether the opinion of the medical community has been sufficiently taken into account. Starting with Hippocrates, medical treatment has the best interests of the patient at heart. This occasionally involves the use of treatments such as this or, in rare cases, psychosurgery. Insisting that patients who are often not in a position to act in their own best interests should have a veto over ECT treatment could be a dangerous and counterproductive measure. In the words of one medical contact, if a person was capable of acting in his or her own best interests he or she would not need ECT. Acting Chairman: I remind the Senator we are on Committee Stage, not Second Stage. Senator Rónán Mullen: We are talking about rarely used treatments, that are strictly regulated but where a treatment is evolving, it is not the place of this House to substitute its judgment for that of medical professionals who might in the future develop a type of psycho-surgery or other treatment that could be beneficial. These matters must always operate within constitutional and legal parameters. I underline again my respect for the spirit underlying the Bill, even if I cannot support the proposed removal of the possibility of this procedure being performed without consent. Senator Dan Boyle: I thank Members for their contributions. It is important to note we are talking about a limiting of the practice of electroconvulsive therapy. The debate relates to those subjected to the treatment, and whether a majority have been affected in a negative way, rather than helped. The existing law is failing in many respects. The safeguards for patients implemented by the Mental Health Commission are carried out too secretively. The extent to which the patient or his representatives is able to contribute that process is non-existent. Our process is behind that found in other European countries. ECT is not practised at all in Slovenia. In England and Wales, the practices are quite similar to those in Ireland. However, Scotland has had a separate Parliament since 1999 and the Scottish Mental Health (Care and Treatment) Act 2003 gives patients with capacity the right to decide. Where people in this country have the capacity to decide, that capacity is overruled in the current situation and the treatment is administered regardless. That is a flaw in its own right. The involuntary nature of the practice when people have the ability to refuse is a major flaw in our legislation. None of us can be happy with this. The Austrian Government tried to overcome the difficulties described by Senator Corrigan by appointing a patients’ advocate who would act on a patient’s behalf. There is something similar in Belgium, where a person known as judge of peace acts under similar principles. There are laws in Denmark which allow for complaints about the administration of involuntary treatments and involuntary admissions. That is subsequent to the fact, but it has helped reduce the reliance on psychiatric measures in Denmark. Over a 20-year period to 2008, the number of beds in psychiatric institutions in Denmark halved because the Danes took what we would argue is a more humane approach. The balance at state and federal level in Germany is towards a more human rights patient-centred approach over and above what are seen to be the preferred approaches of the medical profession in administering care and attention. Ironically, ECT has been more or less taken out of the psychiatric system in Italy, which was the first country to use the practice. It is now expressly discouraged for schizophrenia and is banned as a means of achieving a rapid remission of symptoms in those who are deemed to be suffering under such psychiatric conditions. We argue that Ireland does not have the proper balance between the rights of patients and the administration of effective standards. In the renewed programme for Government that was recently agreed, the Government committed itself to making appropriate amendments to the Mental Health Act 2001 to address concerns regarding involuntary committals and procedures. As limited as it is, this Bill is a sincere attempt to do this. It will not happen tonight, but we have edged the debate forward. Proposals have been made on how we can involve more actors in the debate, and I accept the points made by Senator Fitzgerald. However, Senator de Búrca already pointed out that we have had that in the original debate also. I welcome the formation of an Oireachtas group on mental health, and this is possibly a good forum for such a debate to happen. However, this debate has been dominated too much by the established psychiatric profession. There is a great debate within psychiatry itself and many psychiatrists do not believe this is an effective form of treatment or that it should be administered to the extent that currently occurs. The debate has seen very little contribution on the role and rights of patients. The Minister of State has made several attempts in the ongoing review to change the situation, but this is about where we need to go with this Bill. Senator Mullen made a point about patients’ rights and the threat to wider society. I do not accept that the use of ECT has anything to do with life saving. Psychiatrists might make arguments about mental capacity and personality disorder, but life saving procedures are medical procedures. They relate to the physical condition of the person and I do not see the situation as described by Senator Mullen. When we are passing Bills, we must avoid legislating for the particular. The legislation in force is based on a mythical set of standards, whereby there is an extreme case in every circumstance for which the law must provide. As our law is predicated on that premise, there are too many innocent victims who fall foul of not being the extreme case, who get treatment that is not necessary but is seen to be the easiest treatment. We should not have a psychiatric system or a philosophy of psychiatry that is based on this. That is why we are moving these amendments and seeking support. The first amendment tries to take away the debate on psychosurgery or lobotomy, which I find far more offensive, even though we have not practised it here for 30 years. That will not be the focus of the Bill. The second and third amendments deal with electroconvulsive therapy. I will wait for the contribution of the Minister of State on this, but I welcome the comments made by all Members. While there are reservations about specific aspects of what is being proposed in the Bill, there is a sincere belief there is a need to change the legislation to get the balance right. If there is a means for this House to find a way forward on the basis of this Bill, we will have done well. Minister of State at the Department of Health and Children (Deputy John Moloney): I thank Senators for their contributions. I acknowledge the sincerity of the Green Party in this debate. I also acknowledge that ECT treatment is controversial. I am glad that I do not sense any political involvement in this, as it is a genuine attempt to ensure our mental health services are reformed, which is the continuing role of a Minister of State with responsibility for mental health issues. We are speaking specifically about involuntary treatment, which has always been the way. I must accept that it is a year since we debated this issue, but I have spent the last 15 months travelling around the psychiatric hospitals. I have done this for a number of reasons and I always made sure that the press were never notified, nor were political colleagues. I did that at all times to ensure we built a belief that we were trying reform the mental health services. On most occasions when I visit a hospital, I ask to meet the staff who deliver this treatment and visit the ECT rooms. I am taken by the many valid points raised by Senator Fitzgerald, including that on the variation in treatment across the country. Without trying to lead to a cosy proposal I might make shortly, I made the point at the Joint Committee on Health and Children that it was no longer sufficient to make a yearly statement on mental health services. Since taking office, I have believed it is important we tie down the commitments and recommendations made on the reform of mental health services in A Vision for Change which has been running for four years and has five or six left to run. From the outside, I saw the importance of having in place a director for mental health who would have as his or her only brief the driving of the reform of mental health services. I am pleased to say Mr. Martin Rogan is now in place. However, it is not just a matter of having a person in place but of having someone who will be directly responsible for driving reforms. I have always insisted on the person in question not being responsible to the Minister, lest there be any argument about political motivation. The job description for the post of director should be to be specifically responsible to the monitoring committee charged with delivering reforms. That is now in place as part of the building blocks. The other part concerns the 14 clinical directors. |