Public Business. - Mental Treatment (Detention in Approved Institutions) Bill, 1961: Second and Subsequent Stages.
Wednesday, 8 March 1961
Seanad Eireann Debate
Minister for Health (Mr. MacEntee): The Mental Treatment Act, 1945, provides that in suitable cases patients may be received into mental institutions as temporary patients for a maximum period of six months in the first instance. Under Section 189 of the Act, whenever the chief medical officer of the institution becomes of opinion that the patient will not have recovered on the expiration of the initial period a request may be made to the Minister to extend the period, and where the Minister by Order so extends the period the patient may be retained in detention in the institution for a further period, not exceeding six months. The Section also provides for further periods of detention where necessary, each time within a limit of six months, and provided that the maximum period of detention may in no case exceed two years.
Before the 1945 Act was passed, there was no provision for admittance to mental institutions on a temporary basis. Since then, with the gradual recognition by those affected or their relatives that mental illness, like other illnesses, was amenable to treatment and that in many cases complete cure was possible, the number of persons admitted to such institutions as temporary patients has increased very considerably, and in consequence the number of requests from medical superintendents for orders extending the periods for which particular patients may be retained under treatment has also increased substantially. It is now in fact running at the rate of nearly 3,000 a year.
 The requests are usually received about a fortnight before the then current period of detention of the patient is due to expire; but it frequently happens that a request is not received until much closer to the current expiry date. Since in the absence of a Ministerial order, there is no legal power to retain a patient after the authorised period of detention has expired, it will, I hope, be appreciated that there is frequently a considerable element of urgency involved in dealing with these requests. Notwithstanding this, no case appears to have arisen until recently in which the relevant order was not made within the due time.
Every application for extension received has to be put through certain processes. I can best explain what is involved by reference to an actual file which I have here for the purposes of demonstration. I have, of course, taken the necessary precautions to ensure that the patient to whom it relates will not be identified. This pink paper is a copy of the primary document submitted in connection with the initial reception of the patient. This document arrives in the Department within a few days of that reception. The green paper is a statutory report furnished by the medical officer in the institution to the medical officer in the institution to the Department within twenty-one days after the patient is received. The white document is the request made, in the form of a letter, by the medical officer of the hospital for an extension of the period of detention.
When such a request as this is received in the Department, a member of the staff extracts and attaches to it the earlier documents in relation to the patient, that is to say the pink document and the green document which I have shown to the House. If earlier requests have been received in respect of the particular patient involved, the white documents containing these earlier requests which cannot exceed two—since not more than three request's for Ministerial orders can be granted in respect of any such temporary patient—will be already on the file and to these the current white document is added.
 The file is then referred to the Inspector or Assistant Inspector of Mental Hospitals as the case may be. He examines the reception documents and the application for extension, and advises whether, in his view, there is a prima facie case for the extension. If he so certifies, the name is entered, with other names, in a draft order and the draft order and the documents are referred to a senior officer who certifies that he has personally seen the requests and the supporting documents from the appropriate medical officer in each of the institutions in which the patients to be covered in the order are detained. This certificate is submitted to the Minister with the draft order for signature. When the Order has been signed a separate notification in respect of each patient covered by the Order is sent to the mental institution concerned.
For some time, I have been doubtful and I feel that my predecessors must also have had qualms in this respect as to whether this procedure for the granting of extensions on the order of the Minister for Health constituted any real safeguard for the patient. In fact, with the sole exception that extensions exceeding six months are not normally granted in the case of addicts, a case cannot be recollected in which an application for an extension was refused by any Minister for Health.
Last September, in conjunction with other proposals for the amendment of the Mental Treatment Acts, I went into this whole question and I arrived at the conclusion that, subject to certain safeguards which it is unnecessary for me to mention now, the power to authorise extensions should be transferred to the only persons with full knowledge of the mental condition of the patients, that is to say the medical superintendents of the mental treatment institutions. I recommended accordingly to the Government. On 18th October last the Government accepted my recommendation and the necessary provision was incorporated in the Mental Treatment Bill, 1960 which is now before the Dáil and the text of which was circulated on 29th November last.
 In December, it came to the notice of my Department that certain irregularities had occurred in dealing with a number of requests for the extension of the period of detention of temporary patients. It was portion of the duty of a particular member of the staff, on receipt of requests for extensions, to associate with each of them, in the manner which I have demonstrated to the House, the previous papers in relation to the patient concerned and refer the file to the Inspector or the Assistant Inspector of Mental Hospitals as I have described. The officer in question went on sick leave on 13th December and some little time afterwards, it came to light that he had withheld from the Inspector a number of requests which had been received by him and had suppressed them to conceal this fact. In all, 280 requests were suppressed in this way. In most of these cases, all but 22 in fact, the default was further cloaked by the irregular issue of a notification to the hospitals concerned that the necessary Ministerial order had been made.
Unfortunately the period within which extensions could be granted in the case of the 280 suppressed requests had expired by the time these irregularities came to notice. After the initial discovery, on 19th December, full inquiries had to be made to ascertain the full extent of the irregularities. When that was done, consideration had to be given to the further action to be taken.
The situation was that because of the failure to make the necessary extension orders, a considerable number of patients were being illegally detained. I gave consideration in the first instance to informing the institutions concerned of this situation and advising the immediate release of these patients but rejected this course for what, I think, were good reasons. These patients, according to the medical advice submitted to me a short time previously, had needed further detention to facilitate their recovery. Since that time. some had improved in their medical condition to such an extent that they had been discharged. Others would soon be fit for discharge. The majority  still required further treatment. It would have been upsetting to these patients and a source of worry to their relatives, to have discharged them and put in train again the procedure for their immediate readmission.
On balance I decided that the best interests of the patients would be served by seeking the authority of the Oireachtas to remedy the situation so far as was possible by legislation and this is the reason for the measure which the Seanad is considering today.
The Bill now before the House aims at remedying the situation by providing broadly that where a request for an extension was duly made, the patient may be continued in detention as if an order had been made extending the period, notwithstanding that no order was made. Provision is also made that no damages shall be recoverable by or on behalf of a person merely by reason of his detention during the period in question.
Of the 280 patients in respect of whom the applications for extensions were suppressed, it has been ascertained that 53 have since been discharged and discharged in the normal course. Included in this figure are seven of the 22 cases mentioned earlier whose period of extension had not been authorised and in which no notifications regarding extensions issued to the institutions concerned. I might mention also that these 22 cases concerned only eight institutions. In the other institutions, the issue of the notifications gave the impression to the staffs concerned that the extension had been properly authorised.
Inquiries were made by the staff of the eight institutions to which I have referred about the non-receipt of notifications and they were informed that the matter was being looked into. So far, however, no hospital authority has been notified of the cases in which the necessary orders had not been made. I took the decision not to have them notified because I felt that if the managers of the authorities concerned were made aware of the position, they would be faced with the obligation of discharging forthwith from their hospitals over two hundred patients whom the competent medical  officers of such authorities had advised it was necessary to retain in them for further treatment. I am sure that the Seanad will agree that it would have been unreasonable to have placed these authorities in such a situation.
The requests which were suppressed have been examined by the Inspector of Mental Hospitals. He has indicated that the extensions sought would have been recommended by him in all cases had the requests reached him at the appropriate time. In the normal course and in the normal way, therefore, all these extensions would have been authorised by me. In saying this, I am not seeking in any way to minimise the gravity of the irregularities which have occurred, and I may say that I consider what has happened to be most regrettable.
In asking the Seanad to give this Bill a Second Reading and to allow it to pass through its Subsequent Stages to-day, there are three features of the whole affair, however, to which I am entitled to direct particular attention. These are: (1) No blame attaches to any medical superintendent or other officer of any mental institution in relation to this matter; (2) no patient has been detained in a mental institution whose detention was not justified by medical certificate; and (3) no patient has been detained for a day longer than was justified by his condition, or will be so detained.
Professor Hayes: When I heard of this matter on Monday, and when I understood that, owing to the attitude of the Opposition in the Dáil, it was likely that this Bill would come to the Seanad to-day, I felt a particular temptation. I did not know all the circumstances, but I felt that I knew the Minister for Health extremely well, and it was a tempting prospect to get up in the Seanad and make the speech that Senator Sean MacEntee would make in circumstances of this kind, if a Minister against whom he was in Opposition had to bring in this kind of Bill.
Professor Hayes: The matter is a serious one. The fact that the Minister finds it necessary to bring a Bill into both Houses of the Oireachtas and pass an Act as rapidly as may be, indicates, as he has said himself, the gravity and the seriousness of the matter. Let me say at once that I am in favour of passing the Bill and also of the decision the Minister reached, with all the courses open to him. To bring the Bill into the Dáil was, I think, the correct decision, and I am entirely in agreement with the Minister in that regard.
I was present in the Dáil yesterday when the matter was being discussed. I knew it would fall for discussion here today and that the Official Report would not be already available. I must say it seemed to me that the attitude of the Opposition Parties in the Dáil was helpful and generous and I hope the attitude taken here today will be the same. The Minister's position and the Minister's language and general attitude were, on the other hand, quite different. He did not, in the Dáil yesterday, so far as my experience went, express any personal regret for what had happened, nor did he when concluding yesterday in the Dáil express himself as in any way grateful to the House for what seemed to me to be the helpful and the generous attitude which the House had taken. The Bill was taken as the first business, all Stages were taken together and we are being enabled to take the Bill in the same way today.
No one has ever been more insistent on the dignity, the status, the responsibility and powers of Ministers than the Minister for Health and no one has ever been more violent and more unbridled in denunciations of opponents and denunciations of what he called yesterday in the Dáil a slip-up in a Department. In this case, he says that he is not in any way to blame. He says the matter is one which occurred owing to a very strange act of omission on the part of a very young and junior official.  Surely it is rather extraordinary that the action of a young and junior official should create a situation which needs legislation to remedy.
I gather from the Minister to-day— I was not able to follow the proceedings quite fully yesterday—that not only did this junior official prevent certain documents from going to his superiors but he was also able to write to the resident medical superintendents in mental hospitals in the Minister's name giving consent for the further detention of mental patients. Am I right in that?
It seems to me an extraordinary position if a junior official can convey to the resident medical superintendents in mental hospitals that a particular patient is to be detained with Ministerial sanction. If he can do that and no one discovers it, surely there must be something wrong with the system. I find that very difficult to understand.
The Minister very properly at the end of his speech said that the resident medical superintendents were in no case to blame. I rather gathered from him yesterday that it was due to their action that the matter was discovered.
I want to be very brief on this. The Parliamentary convention most certainly is that the Minister is responsible for his civil servants and any departure from that convention would, I think, involve us in rather serious difficulties and change the whole nature of the Civil Service. Civil servants, as is well known, frequently write speeches for Ministers.
Professor Hayes: I do not think they could write the type of speech the Minister often makes but there is no doubt that civil servants do write departmental speeches on certain topics for certain Ministers—not excluding the Minister for Health.  The Minister is a very pleasing person and is good company, but on his feet he is clean daft. He cannot stop. He does not know what he is going to say and, worse still, none of his associates know, either. He has on several occasions expressed regret for having gone too far in denunciation of political opponents, with, I think, a firm resolution of amendment, a resolution which he has normally failed to keep, as the recent example in Sligo proves.
I shall come back to the subject of responsibility. A civil servant writes a speech for the Minister. The Minister does not say “I am informed by a high officer in my Department...” and read it out. The civil servant gets no credit for that kind of thing and that is as it should be. Surely the position should not be that when a civil servant is right, the Minister takes all the credit but that when he slips up, the Minister can protect himself and his Department and his Ministerial responsibility by saying: “This is all due to the action of this young junior.” That does not work and it ought not be allowed to work.
The Minister might have said in the Dáil what he said here to-day and gone a little bit further. He said to-day it was a most regrettable occurrence. He might have said: “I regret this occurrence and am grateful to the House for what the House is doing for me.”
Mr. O'Quigley: We are all accustomed to listening to members of the Soviet Politburo accuse themselves before congresses of the Soviet Party in Russia of having committed certain crimes against the people, then make an abject confession and apology and, after that, they disappear from the scene. We had something like that this afternoon from the Minister for Health, with the exception that he has not made the apology and that he is not likely to disappear from the scene until after the general election.
The Minister has given us a very poor account of how this incident  occurred. He spoke about a young and junior officer in the Civil Service. As I understood the Minister, the next step for the young and junior officer was to an officer who apparently dealt with the forms submitted to him by the young junior officer and thereafter to the Inspector or Assistant Inspector of Mental hospitals. While he was speaking, I looked up the Estimates to see the rank of the Inspector of Mental Hospitals. It is Assistant Secretary level. I take it that the officer below him must rank either principal officer or assistant principal.
Since the Minister has accused a young and junior officer, he should tell us his rank. If it is nearer to that of writing assistant or clerical officer, we are entitled to comment that it is extraordinary that such responsibility should be placed on such a junior officer. If, on the other hand, the officer is a good deal senior, it is extraordinary that those closer to the top and dealing with important administrative matters should be so neglectful of their duties.
Many Senators will recall an incident in Britain where a certain farmer was entitled to get back certain land taken from him during the war by the Commissioners of Lands over there. Through some neglect on the part of the officials in the Ministry of Agriculture, the land was not restored as it ought to have been in accordance with the law. It was the Crichel Down case and the Minister at the time was, I think, Mr. Dugdale. It was conceded by all sides in the House of Commons at the time that the Minister had no responsibility whatever for the neglect of his officials. However, when he spoke in the House of Commons about the matter, the Minister resigned. The system on which democratic institutions have been built requires absolute loyalty from State servants and absolute responsibility from the Minister.
It is not pleasant to have to deal with a situation of this kind. The Minister has tried to shuffle off responsibility for what has occurred. I would refer to a ruling by the  Cathaoirleach on 15th December, 1960, as reported at Column 449 of the Official Report, Volume 53. I was dealing with decisions which it was intended should be made by the Minister for Local Government under the Derelict Sites Bill.
Mr. O'Quigley: With great respect, if we are considering legislation in which we are vesting in a Minister of State a right of appeal, I submit that I am entitled to consider who in fact will deal with that appeal.
The Minister ought to accept blame which rightly belongs to him. He should not try to shuffle off his responsibility on some junior official, who may or may not—we do not know— be responsible for what has been done.
It is extremely odd that the Minister should drag through Parliament and through the publicity associated with parliamentary proceedings some anonymous civil servant whom it will be possible to identify not alone among his colleagues but in the public service. This is done by a Minister who on 21st December, 1960, got into a temper with Senator Stanford on the Health (Fluoridation of Water Supplies)  Bill, 1959. As reported at column 510 of the Official Report the Minister said:
We regret the Minister should cast doubts not alone on the junior officers but on senior officers and on the administration of his Department. Under Section 189 of the Mental Treatment Act, which this Bill is designed to amend, it is the duty of the Minister to certify or not to certify the extension. He failed in that duty but he will not confess it.
The Minister explained how a file in a Civil Service Department is constructed. This one was in technicolour. We have pink, green and white documents. The Minister might give some indication of the number of hands through which the file passed and, more particularly, whether the orders were signed by himself. He spoke of certain data being sent to a senior officer who signed certain things. Then he said: “The order was then signed.”
I should be glad if the Minister would say whether the order was signed personally in all cases by the Minister. The Minister was recently down in the Sligo-Leitrim constituency and on the Sunday Press of February 26th, we were told, according to the heading on page 3, that “Fine Gael sweeps away the people's safeguards”. This was the statement made by the Minister for Health. Of course the people of Sligo-Leitrim, for whom the Tánaiste made a certain High Court action an issue in the election, have already decided in a very clear way that they do not regard the people's safeguards as having been swept away. On the contrary——
Mr. O'Quigley: I want to talk about another aspect of constitutional law, which is the great safeguard of the people's rights. There are people across the way who do not want to talk now about the Constitution, which was their great boast for so long.
Mr. O'Quigley: We are dealing with a Bill which is to indemnify local health authorities, resident medical superintendents and the Minister for Health himself against liability for damages for wrongful detention of upwards of 200 people.
Mr. O'Quigley: The Minister failed to exercise the responsibility which was cast upon him by Section 189 of the Mental Treatment Act, 1945, and consequently is bringing in a Bill to indemnify himself.
Mr. O'Quigley: I am coming back by a very circuitous route through Sligo-Leitrim. So far from sweeping away the people's rights, we on this side of the House believe in the preservation of the fundamental liberties, and the most fundamental liberty with which this Bill is concerned is that set forth in Article 40, subsection 4 (1) of the Constitution, which says: “No person shall be deprived of his personal liberty save in accordance with law”. The plain and inescapable fact is that unfortunate people who are mentally unstable have been deprived of their liberty, not in accordance with law. That is what the Minister is here to rectify and against which he seeks to indemnify himself.
Mr. O'Quigley: The strong objection I have to this Bill is that the Minister, knowing that the Constitution had not been observed, did not get in touch with the next-of-kin, the people responsible for these people wrongfully detained in mental institutions, which would have been the minimum requirement. The Minister should have written telling them that “owing to failure of my Department and myself to observe certain requirements as set forth in Section 189 of the Mental Treatment Act, 1945, so-and-so is being detained at the present time in an institution not in accordance with law. It is my intention, however, to ask the Oireachtas to regularise this detention in due course.”
Neither the Minister nor anybody else has any right to detain anybody, except in accordance with law. We have enough queer detentions under the Offences against the State Act. When the Minister for Health discovered that because of his failure people were being wrongfully detained in mental institutions, he should have tried immediately to make up to those people as far as he could for the wrongful detention of which he has been the cause. But so far from trying to do that, the Minister withholds from the county managers the information that  these people are being wrongfully detained. The reason was that he was afraid that if this got out to the county managers, he would have to suffer the consequences of dozens of habeas corpus applications in the courts of justice. In this way, the Minister for Health was able to thwart the workings of the law and of the Constitution. The right of habeas corpus is recognised in Britain and is written into our own Constitution as one of the most fundamental things, but the Minister took very great care that it should not be operated in the case of people who were mentally incapable and afflicted.
I wonder if the Minister has given us all the details we require on this Bill? As I understand the position, of the 280 people who were detained or discovered to have been wrongfully detained, 53 have since been released. I should like the Minister to assure me that no person was detained one hour longer than was necessary in a mental institution as a result of his failure to comply with the provisions of Section 189. The Minister has given some kind of general guarantee that no patient was detained whose detention was not justified and that no patient was detained longer than he ought to have been. Upon what evidence does the Minister base that statement? Has he got a full and detailed report in relation to every one of these patients? If it be the case that nobody was wrongfully detained, why does the Minister insist on a clause going in that no damages shall be recoverable by or on behalf of any person in respect of his detention? If a person would have been detained in any event and an order would have been made in respect of that person, then it is quite useless and redundant to put in this section.
It seems that the Minister is not at all sure of himself in that regard, and that Parliament is being used to ensure that the ordinary rights that a citizen enjoys to recover damages against the Minister for Health, the local authorities or anybody else for wrongful detention and unlawful imprisonment will not apply in the case of these less fortunate among us who are mentally incapable.
Mr. L'Estrange: If democratic institutions are to survive and to function properly in this country, then we must have certain, fundamental rules of conduct, which must be observed at all times, especially by Governments and by those entrusted with governing our country and people. We were told in the past by you, Sir, as Cathaoirleach, on numerous occasions in this House that the Minister is responsible to Parliament for all the work of his Department. On certain occasions when I went to blame civil servants, I was quickly told by the Chair that I could not blame them for anything; that the Minister was responsible, and I would have to blame the Minister.
The Minister and all Ministers of this Government take credit any time credit is due. They make certain they get it and if they do not, Radio Éireann will very soon give it to them, whether they are entitled to it or not. I think that cannot be denied by anybody. If they take credit when credit is deserved, then I think that when they are to be blamed for anything or when anything goes wrong in their Departments, the appropriate Minister should shoulder the blame. In this case, the blame should be placed on the shoulders of the Minister for Health. He is a well-known fighter, but it would have been much better for him if he had fought his way out of this situation and had not adopted the cowardly procedure of sheltering behind a young junior officer of his Department. I think it is regrettable——
Mr. L'Estrange: In my opinion, that is what it is. I do not think there is any necessity for me to withdraw anything I said. I think it regrettable and deplorable that any Minister should do what he did, that is, to pillory a young junior officer and throw the whole blame on him. The only proper course open to the Minister is to hand in his resignation to the Taoiseach and let the Taoiseach do what he thinks best in the particular circumstances.
 We were told that the purpose of this Bill is to regularise the continued detention of a number of patients who were received into a mental hospital as temporary patients. We were told that under the 1945 Act, the maximum period of detention was six months. The order to extend that had to be made by the Minister. We were told that roughly 3,000 cases were dealt with each year. Could it have happened that this had become such a routine matter that it was left entirely to a young official to deal with? When this individual fell ill, then something had to happen and it was found that 280 cases had not been dealt with as they should have been. I cannot understand how any young junior officer could suppress 280 applications received in the period from October to mid-December. Were there no officers senior to this young junior officer who were supposed to go through any of these files? Were they not supposed to check on them? I have my ideas about others perhaps being concerned but there has to be a scapegoat—somebody has to be blamed—and I suppose the easiest way out is to blame a young junior officer.
It is wrong that this matter should be left in the hands of a young junior officer. Surely some senior officers of the Department should have checked on the files between October and December—a period of two and a half months? If they did not do so, I doubt if they are doing their work properly in the Department. There is no doubt that there is public uneasiness about the fact that 280 documents relating to the detention of 280 people could be buried for 2½ months, could lie, as we were told by the Minister, in the hands of a young junior official of the Department, without a senior officer appearing to make any inquiry or without the Minister himself making any inquiry. We wonder, if this young junior officer had not gone sick on 13th December, would any inquiry have been made about these files? Was there no senior officer in this section to ensure that those applications, which concerned the lives the rights and the freedom of  people who were unable to look after themselves, were dealt with in time?
I know that, perhaps, the Minister was too busy. He was down in Sligo-Leitrim talking about Fine Gael snatching the people's safeguards, but he himself, who was responsible for his own Department, was taking away the rights and the safeguards of unfortunate people who were unable to look after themselves. It is not for me or anybody to advise the Minister, but it would be much better if he looked after the rights and safeguards of those people who are entrusted to him as Minister for Health and left the rights and safeguards of politicians to themselves. They will look after them just as the people of Sligo-Leitrim did in the past week or so. I agree with Senator Hayes. I think that in the interests of the patients this Bill should be passed.
Professor Hayes: I do not think Senator Ó Maoláin should be thirsting for blood. Senator L'Estrange must be aware that the Cathaoirleach has nobody on the Front Bench. May I put it to the Cathaoirleach that Senator Ó Ciosáin from the Front Bench said: “You have nothing to boast of”, addressing himself directly to Senator L'Estrange? If there was a conversation, it was conducted on both sides. I would suggest to Senator L'Estrange that he should withdraw his remarks about the Cathaoirleach's Front Bench.
Professor Hayes: It was: “What have you to boast of?” There are things I am ignorant of but when a question such as: “What have you to boast of” is asked the questioner is addressing somebody in the second person and that is not in order.
Dr. O'Donovan: This is an unusual and indeed a pleasant experience, if one could treat it in a lighthearted manner. The Minister for Health is the person who, in the other House, had a Parliamentary Question put down and in the course of a written reply referred to a man who was not there to defend himself and said his conduct was infamous, that man having already been dismissed by the Minister. I do not see why anybody in these circumstances should mince  words in describing the Minister's performance in the other House yesterday and here today. However, I am not going to adopt that line.
Dr. O'Donovan: I should like to point to one statement made by the Minister which I noted at the time and which was reported in every newspaper at the last general election. The Minister at a meeting at Haddington Road referred in public to the then Taoiseach, Deputy J.A. Costello, as an audacious liar. I do not see why anybody should mince words about such a person.
Dr. O'Donovan: I am coming to the Bill and I shall relate these matters to the Bill. I went to the other House yesterday and I listened to the Minister's brief. In that brief, there was not one word of personal regret from the Minister, from the person responsible for this state of affairs—not one word of personal regret. Today all the Minister would say was: “I consider what has happened to be most regrettable”—as if he were a judge sitting on the Bench. He is not a judge sitting on the Bench in this matter. The Minister is in the equivalent position in this matter of the prisoner at the bar. That was the farthest the Minister would go. I do not believe there is another Minister— and I say this in an honest belief— in this Government or in the previous Government who would confine himself to that kind of statement.
The whole tenor of the Minister's speech today, in my opinion, was wrong, completely and absolutely wrong. I am not going to go into the case in Britain which illustrated this so very well, when a Minister, remote  from the scene of action, had to resign because the people felt that things were done by officials in his Department which would not be accepted by the people as having been properly attended to. The Minister did not cover a number of points at all, in my opinion. It is regrettable that any Minister should come to either House of the Oireachtas and blame a junior official. I notice that the Minister's brief on that matter was altered between yesterday and today. It was not nearly as explicit today as it was yesterday and I was glad to note that. The particular way in which it was put was not nearly as objectionable today as it was yesterday. It was extremely objectionable yesterday. When a Minister is responsible—and we have all been reminded time and again and indeed I think I have been rightly reminded——
Mr. O'Quigley: On a point of order, is it in order for members of the Government Party continually to intervene and cross-examine the speakers on this side of the House? It is the kind of thing which nearly gave rise to a scene a short time ago.
Dr. O'Donovan: When the record becomes available, the difference between  what the Minister said yesterday and today will be quite apparent. I shall leave it at that; there is no point in pursuing the matter at this moment because we cannot come to any final decision about it.
There is no doubt that Senator L'Estrange raised a very important point. Indeed, I have myself on one occasion, in relation to an incident which happened when the previous Government were in office, protested very strongly about the blame for that particular incident being laid at the feet of a porter. This is the same kind of thing. This attitude of shelving responsibility is just too easy, say, in relation to a body like C.I.E. — to say: “Oh, the Minister is not responsible.” It is too easy in a reasonably large body for an individual to say: “Oh, I was partly in it but there were half a dozen others involved also.” This matter is just altogether too easy but it cannot be done by a Minister. No Minister can divorce himself from his responsibility. The procedure, the understanding and the parliamentary history in the matter are as clear as daylight. No Minister by any form of words or capacity to use English can get rid of his parliamentary responsibility or Ministerial responsibility.
The Minister, as was pointed out, referred to a file and he referred to this pink paper, this green paper and this white paper. I do not refer to this lightly, but it is quite obvious that the colour of these papers was designed for a specific purpose. It was part of the administrative procedure to ensure that the pink paper was followed by the green paper and the white paper, and that anybody handling a file could, by looking into the file, know how far a particular case had gone.
Obviously, and I assert this without fear of contradiction, and if the Minister contradicts me, I am not prepared to accept the contradiction there was responsibility elsewhere in the Department in this case and there was laxity by somebody else. We could put it this way. It is the duty of the Minister to do as has been done in many Departments, to assign a list of officers, the most senior of whom do the most  responsible work and carry the authority of the Minister's seal as to what they may do, how far they may go and how far they may commit him. Has the Minister such a list in his Department? Has the Minister attended to this particular duty, which is usually attended to, when there is a change of Government, by the incoming Minister? The Minister should pay more attention to the administration of his own Department in relation to procedural matters which have quite obviously gone seriously astray.
The Minister said this was not a Bill to indemnify him. That kind of smart legal point is not worth anything to anyone. If the resident medical superintendent of a mental hospital were pilloried in any way in the courts, arising out of the Minister's action, he would have no option but to bear the costs, if the man were at any loss. I do not think the Minister would hesitate for a moment and, therefore, it is not right or correct in the administrative sense, or in the parliamentary sense, for the Minister to make that kind of smart point across the House. The Minister has a large Department——
Dr. O'Donovan: I had forgotten that. I think he gives less attention to the second than he does to the first. In the course of his speech, the Minister referred to “the duty of a particular member of the staff”. The Minister must think we are very ignorant of Government departmental procedure. All the duties of officials of these Departments are interlocked. There is continuous interlocking and responsibility amongst officials in Departments, and quite rightly so. Otherwise, how could matters be attended to between principal officers, assistant principal officers and superintending officers, down to the messenger who carries the files around? It is not a reasonable proposition to put to this House that it is the particular responsibility of “an” officer to do any particular thing. It will not wash; it will not pass muster.
 There is one final point to which reference has already been made. It is quite improper for a Minister to come into Parliament and blame a person who cannot reply. That is contrary to the whole system of Governmental responsibility——
Dr. O'Donovan: Not only is the Minister responsible but there is joint responsibility on every member of the Government for every act done by a Minister. That is the system of democratic parliamentary government. There is no getting away from it: it is a completely new introduction, so far as I know, for a Minister to come to the House and not say in the ordinary way: “Unfortunately, this has happened and I know it is my responsibility. I am asking the House to help me out.”
Judging by the reports today of his speech in the House last night, the Minister uttered no word of thanks to the members of the Dáil for taking him out of what is a grave dilemma. I hope when he is concluding on the Bill today—as has been promised—he will at least alter that approach and utter a word of thanks to both Houses.
Éamon Ó Ciosáin: I did not intend to intervene in this debate because I thought the Bill would be accepted by the House without some members having recourse to what I would describe as very extraneous matters which are really not relevant to the Bill. Listening to Senator O'Donovan, in his defence of this constitutional principle known as the collective responsibility of a Government, I was happy to note that certain members on the other side, and their colleagues, have come to realise the importance of that principle.
Éamon Ó Ciosáin: It is not long since we had experience to the contrary. When the Coalition Government were in office, we heard members of that Government making different and contradictory statements.
Éamon Ó Ciosáin: If there are members opposite who believe the Minister should have taken a different course, we are entitled to hear them. We are entitled to be told what that alternative course should be. They have not told us. All they have done is seize upon this measure as an instrument with which to attack the Minister and the Government—but the Minister for Health especially.
Éamon Ó Ciosáin: If there is one Minister who is more fully alive to his Ministerial responsibilities than another, it is the Minister for Health. If he were not fully alive to, and conscious of, his responsibility as Minister,  perhaps he would not have brought in this Bill at all. The Minister has taken the right course. He has taken the Dáil and Seanad into his confidence——
Éamon Ó Ciosáin: I congratulate the Minister on clearing up this irregularity. It is not a very important matter. A junior officer slipped up in his job. That could happen at any time. In any walk of life, it can happen that a person will slip up in his job. If there is a way of rectifying it, well and good. The Minister is rectifying it in this way. I compliment him on the introduction of this Bill.
Dr. Sheehy Skeffington: I had not intended to intervene but it seems to me the Minister presented his case in a most fair-minded way and, at the end, quite emphatically apologised for the situation. I was a bit surprised, consequently, when I heard Senator Hayes say he would not make a particular kind of speech and then proceed to set the tone for what Senator Ó Ciosáin rightly says is really a Party political attack upon what is a distressful incident which is certainly being met fairly and also with speed by the Minister.
Dr. Sheehy Skeffington: Somebody mentioned the Minister for Education. That is unwise. I remember a Minister for Education in the Coalition  Government who took four long months to answer questions about the punishment of children which had taken place a year before and which had been on his Departmental files for over 18 months. Nobody on the then Opposition thought there was anything funny about that delay.
The Minister is behaving with great expedition in a situation which he not merely regrets but says is deplorable and should never have happened. It is obvious there is no other course open to him. It is obvious to anybody listening to his presentation of the case or reading the record that he presented it in an entirely frank way, concealing nothing and making quite clear what happened.
As a Senator, I regret the manner in which this House has been used to attack the Minister when he has been very frank and met the case well. The only point that merits a rejoinder from him is the question as to how junior was his officer and what were the seniors doing, while he was failing to deal with 280 applications. The Minister mentioned that very frequently these applications come in for renewal of a period of detention very shortly before the ultimate date. It seems surprising that so junior an officer could suppress such a large number of cases.
I was very surprised to hear that some members on the other side of the House expected thanks for dealing with this Bill of Indemnity. I can remember two Bills of Indemnity. One was in relation to the appointment of lecturers to University College. The second related to the posting of literature by a Fine Gael Presidential candidate which he was not entitled to post. The present Government brought in Bills of Indemnity to set that position right. I heard no thanks at all but a bitter diatribe by the members of the Opposition who said neither Bill was necessary and then voted for both of them without a word of thanks. It comes strangely from such speakers to ask for thanks because we pass what is in the interests, not of the Minister, but of  these patients. This necessary Bill is introduced with expedition and courtesy by the Minister who on this occasion has unfairly been attacked.
Mr. Burke: I should be sorry to think the Minister is losing his great power of debate so that he must be defended by Senator Sheehy Skeffington. A mistake was made. The Minister is responsible. He should have apologised for the error, accepted responsibility, asked the House to deal with the legislation and thanked them for dealing with it with such despatch.
I would remind Senator Ó Ciosáin that if a junior clerk in a solicitor's office made a mistake, the solicitor would have to bear full responsibility and pay the costs, even if the Incorporated Law Society went as far as striking his name off the Roll. We cannot get away from the responsibility of the Minister to the officers of his Department or of the solicitor to his client. An endeavour is being made to put a twist on this debate in relation to the responsibility of people in those positions which we will not accept and which the people outside will not accept, either.
Mr. MacEntee: I want to deal with a remark by Senator O'Donovan to the effect that at a general election I referred to the former Taoiseach, Deputy J.A. Costello, as an audacious liar. I cannot bring myself to believe I used those words. I shall not say the Senator might find himself qualified to be included in that category. To ascribe a statement of that sort to me is unworthy of the Senator, unless he himself heard it and is prepared to testify on oath that I used it.
Mr. MacEntee: Does Senator  O'Quigley wish to associate himself with the charges of Senator O'Donovan? If so, he also should prove the truth of that allegation. I am denying it here categorically.
Mr. MacEntee: Like Senator Ó Ciosáin, I think Senator Hayes spoke in terms worthy of the issue before the House. However, he did say I did not express regret that this matter had arisen. He may not have heard what I said when speaking in the Dáil yesterday. Here is the relevant quotation:
Notwithstanding the fact that the grant of extensions sought would have been virtually automatic had they been dealt with in the course of usual practice, I do not wish to minimise in any way the seriousness of the fact that the necessary ministerial orders have not been made. I regard what has happened as most regrettable and most deplorable.
Mr. MacEntee: Does the Senator wish me to beat my breast, tear out my hair and wear sack cloth and ashes? In Dáil Éireann yesterday, I spoke with the dignity and seriousness which became the situation in which I was placed. The fact that this Bill is before the House is an indication that I am in no way endeavouring to derogate from my Ministerial responsibility. I accept that doctrine fully. I have always lived up to it, but the  principle has to be applied with some sense of realism. If a paperkeeper or some person charged with petty cash embezzles money, is the Minister to be regarded as being personally responsible to the fullest degree for that? If in a routine such as I have outlined today an unfortunate junior in a Department fails to fulfil his essential function, which was to collect the relevant papers and to submit them to the officer who was empowered to deal with them, is the Minister to be vilified, as I have been vilified in this House, because of the failure of that person who, though essential, was still a very minor element in the Department?
People must look at these matters in a realistic way. They must apply to them the same principles as they would like to apply in the conduct of their own affairs or in relation to their conduct as public representatives. This matter is a grave and serious one, for this reason, that it has placed the responsible officers of mental authorities in a very serious position vis-à-vis their patients and vis-à-vis the relatives of their patients. It is also grave and serious because there has been an infringement of the Constitution. But here is the real position: Because I failed, through no personal default of mine, to sign these Ministerial orders, these people were unlawfully detained; but though I did not sign the Ministerial orders at the due time, I did not wilfully fail to sign them. It was by no inadvertence or neglect on my part that the orders were not signed. Nevertheless, because the orders were not signed, certain persons who had been detained in mental institutions for treatment were held there for periods without due authorisation of law, but also were held there because their mental condition forbade their discharge.
The situation with which I am concerned is in the first place that those medical superintendents who have held these persons, having requested in due time that their period of detention might be further extended, should be indemnified against any action which a relative of any one of those patients, or the patient himself  on his release, might bring against them with a view to extracting damages where in fact no damage had been done, so far as the patient was concerned.
This Bill does not indemnify me. The indemnification is not necessary in my case. These patients were not held on my order. If I had made an order in respect of which a patient was wrongfully detained, there being no medical justification for holding him, then there might be some need to seek an indemnity, if I had done that in good faith, within the ordinary course of my Ministerial duty and responsibility. But not having made an order detaining these people or authorising their detention, I fail to see how any action could lie against me in either my personal or ministerial capacity. I did not detain the people who were detained. On the other hand, though they were detained on medical grounds, they were not detained in accordance with law. Therefore, the persons who did detain them have to be indemnified against the consequences of that action. No patient was detained because of the Minister's failure to make the necessary order. Patients were detained because it was assumed that the Minister had made an order, assumed in good faith, and that is why the third paragraph appears in Section 1 of the Bill.
Senator O'Quigley had a great deal to say about the Minister sheltering behind some person. He and Senator L'Estrange who followed in the same tone accused me of being cowardly and sheltering behind some junior officer. That is not true. I have come here and placed only the full facts before the House. If I had not done so, I should have been asked as I was, by Senator O'Quigley, for instance, or if not by him, then by Senator L'Estrange, whether I had personally signed the order, as I have been asked today. It is not my business to answer a question in that matter, because a Minister is still responsible to Dáil Éireann, but for Senator O'Quigley's information, since I was asked the question, I do sign  these orders. I sign them when they have been properly presented to me with a certificate in these terms: “I certify that in each of the cases mentioned the application has been signed by the person in charge of the approved institution for an extension of the period of detention and that application has been accompanied by a certificate signed by the chief medical officer that, in his opinion, the patient will not have recovered on the expiration of the current period of detention.” If that certificate is not attached to the order I do not sign it.
I would further have been asked again, as Senator O'Quigley asked me, what is the position of the officer whose duty it was first to procure the file, from the store of confidential files, because these files relating to mental patients do not go into the general register, but are kept apart from other papers and preserved in the strictest confidence. The duty of that officer was to get the file relating to the patient in respect of whom a request was made, to place the request on that file, and to bring it forthwith to the appropriate medical officer in the Department, that is to say, to the Inspector of Mental Hospitals or the Assistant Inspector who is immediately concerned. There is no intermediary between the junior officer and the Inspector of Mental Hospitals. There is not any place or need for an intermediary. The Inspector of Mental Hospitals or the Assistant Inspector has not to consult any administrative or executive officer in the Department as to whether or not, in his opinion, a patient to whom the request relates should be detained. The Inspector is the qualified person whose duty it is to advise on this question.
Mr. MacEntee: It was in order, first of all, that the House should be in possession of all the facts that I detailed the procedure followed in dealing with these requests. It was not with a view to bringing in the junior officer but merely to indicate what was quite true, that, because the most elementary step had not been  carried out, the rest of the procedure had broken down.
I have not been satisfied with that procedure. I do not know whether my predecessors were or not. My immediate predecessor mentioned, I think, in the Dáil yesterday that he had never known this would break down. He had not assumed there was any weakness in it, but, when I was dealing with proposals to amend the Mental Treatment Act, 1945, later, I did say that, in my view, this represented no true safeguard for the patient concerned and that it would be very much better if we placed the full responsibility for detaining these patients immediately and directly upon the resident medical superintendent, with this proviso, that, when the medical inspector visited and inspected a mental hospital, as he is bound to do periodically, he should ask for the register and consider the cases of all those patients who were being detained longer than the initial period and should satisfy himself, so far as he could, that their continued retention was warranted by their condition. That, as I say, had been decided upon before this case came to light.
My predecessor, speaking in the Dáil, said he could not recollect any similar situation having occurred. Of course, when one considers the position of a Minister in relation to a Department, I think we are bound to have regard to this fact—that the Minister is not the administrator; that he can and must necessarily endeavour to see that his Department is run properly and that if any complaints come to his notice in relation to any officer or action of the Department, he should have it fully investigated, but the Minister is not the manager of the Department. He is responsible for everything the Department does, or improperly fails to do, naturally, as I am responsible for this. He must necessarily accept the criticism that may be made in respect of anything the officers of his Department have done or not done in the course of his official duties, but nobody—at least no rational being—is going to expect the Minister to go down to his Department  and start checking whether a junior officer has assembled certain papers with due expedition and submitted them to the appropriate officer for further action.
If a Minister were to do that, I think he would certainly destroy the morale of the Department and certainly make it exceedingly difficult for those immediately responsible to him to administer and conduct the affairs of the Department. Therefore, in relation to all this question of Ministerial responsibility, we have to look at it in a broad and general way with a degree of common sense which was absent in the speech made by Senator O'Quigley and lamentably absent in the speech made by Senator L'Estrange.
Mr. MacEntee: There is no real analogy between what has happened here in Ireland and what happened in Crichel Down. In the case of Crichel Down, a person was grievously injured and subjected to serious loss. Here no person has suffered physically or otherwise because of the fact that the necessary Ministerial orders were not signed by me.
What has happened is this. People who should have been retained for treatment in the mental hospitals to which they had been committed or whose continued detention was necessary in their own interests were detained. That is the first thing that happened. They were detained upon the recommendation of those who had medical charge of them, those in whose care they were. The only thing about it—and it is a lamentable thing, I admit—is that those who kept them there had not the authority of the Minister to do it. That is far removed from what happened in Crichel Down—very far removed, indeed, because, as I have said, no person was injured in his person or in his property. In fact, he was kept in the care and custody of those who were best qualified to act as his guardians during this period.
 I am not using that argument as a complete exculpation, but I am using it in order that some sense of proportion and reality will be brought into this debate. People will see that the heavens are not going to fall; that nothing really calamitous has happened because the Minister did not make orders. If the Minister had made the orders, the patients concerned would have continued to be detained.
He did not make the order. He has not now power to make the order, but he is asking the Oireachtas to give him power which will ensure that the necessary orders will be deemed to have been and will continue to run and that the patients who, for their own benefit, should be detained in mental hospitals, will continue to be detained there. It is a long way removed from the occurrence of Crichel Down. What the Oireachtas does, when it passes this Bill, is to ensure that the orders which should have been made some weeks ago will now be regarded as being in force and it will further provide that no action will lie against those officers in mental hospitals and mental authorities who have detained patients when the Ministerial order authorising them to do so was not in truth in existence.
Mr. O'Quigley: I want to refer to subparagraph (iii) in the provisions which follow paragraph (b) that “no damages shall be recoverable by or on behalf of the person in respect of his detention during the said period ending on the passing of this Act.” The Minister, in his concluding speech on Second Stage, dealt at some considerable length with his own legal position as Minister for Health in relation to the failure by him to make the orders  required to be made under Section 189 of the Mental Treatment Act, 1945. Nobody is going to say that the Minister has committed any sin in this matter; no question of morality arises. This is not an institution concerned with assigning moral blame to Ministers. It is concerned with making laws and indeed both Houses are concerned with seeing that the laws which they make are duly observed in certain respects, in regard to making regulations and things of that order. The Minister talked again about the junior official. What we are concerned with is the legal position and legal responsibility of the Minister which Section 1 is seeking to rectify.
The Minister has talked a great deal of law. I would like to ask him if he ever heard the saying Qui actus per alios actus per se? I expect the Minister has. The Minister knows very well that we all realise the Minister cannot do everything and that he must act through his officials. When he does act through his officials, he acts per se. That is all I am saying. The Minister in law is responsible for the failure to make orders under Section 189. Then we come to look at Section 1 of the Bill and we are asked by the Minister for Health to say that no damages shall be recoverable by or on behalf of the person in respect merely of his detention. The Minister talks about the commonsense approach to this. If the Minister is so certain that no damage was done to any of the patients concerned by their illegal detention, what then is the necessity for saying that no damages shall be recoverable by or on behalf of the person in respect of the detention? If the Minister states emphatically that nobody has suffered any wrong, why go to the trouble of incorporating in this Bill the real indemnity clause that no damages shall be recoverable? If any person has been detained and feels he has been wrongfully detained and has suffered damage, or anybody who has the care of such a person is in a similar position, then it would be better to leave their constitutional rights to them and their rights under law, in the certain knowledge that if any of these people go to law, they will recover nothing.
 Would it not be far better, and show greater regard for the law and the Constitution, if the Minister were to adopt that and say: “If these people feel they have a grievance, we will not, by legislative act, deprive them of the right to have that grievance litigated by the courts.”
The Minister on the Fluoridation of Water Supplies Bill was rather inclined to suggest that a certain matter which I raised should be left in the Bill in its obscurity, so that the lawyers might be able to make some money out of it. I want to assure the Minister that when I stand up here and speak, it is with a claim I make to some knowledge of the law and the Constitution, but I have no intention whatever of creating or leaving in any Bills that pass through this House any loophole to benefit lawyers. That would be grossly dishonest. I am certain the Minister did not mean to impute any such dishonesty to me. I have a much better opinion of the Minister than he apparently has of me. I want to suggest to him that he might agree that the law should take its course in relation to the question of damages, in the confident belief he seems to have. I am sure if he deletes this, the Dáil will be likewise agreeable to let this matter go through.
Éamon Ó Ciosáin: Do I take it that the Senator's point is that subparagraph (iii) should be deleted from the Bill and that the people concerned, namely, the patients or the relatives, would be at liberty to take action for damages? That would be a very unwise decision on the part of the Minister, if he accepted it. In a case like this, one would never know what situation would develop. The people for whose protection and good this Bill has been introduced might think they have a right of action and there might be all sorts of vexatious actions in regard to what they might consider their wrongful detention and thereby involve themselves and their people in unnecessary expense. The Minister was quite right in making sure that some safeguard like this would be  inserted in the Bill and I would advise him to stick to it.
Mr. Brady: I should like to make a few observations about mental hospitals as one who has been a member of a mental hospital committee for 30 years and a member of a visiting committee for the same period. I often had great sympathy for the doctors because of the unreasonableness of people coming along and saying: “There is nothing wrong with my son; he should be released”. I have two particular cases in mind and in both cases the doctor refused to yield to any appeals by the committee. One day, the matter was being carried to such lengths that he said: “If you agree to take the patient and sign a document accepting full responsibility, I am prepared to release the patient.” In those conditions, the patient was released. What happened? About three months later, on a Sunday morning, the poor boy who had been released killed his father. I saw another case like it and certainly I have great sympathy with the R.M.S. and the assistant R.M.S. I have very close contact——
Mr. Brady: I am familiar with this Bill which the Minister has brought in. He has brought it in to put it through. It is quite easy to talk about these people being detained a little longer than usual, but it might be no harm if they were detained a little longer. I know the citizen has the right not to be deprived of his liberty, and I firmly believe it is the ambition of every doctor, every staff, and everyone else to hasten the date of the restoration to full health of these people. I believe they should not be released until they have reached the stage where they can be regarded as fully cured.
Senator Hayes stated the position in a few words, but later on, what could be regarded as a personal attack was made on the Minister in an attempt to vilify him in this Chamber.  I think they were glad to get him here——
Mr. O'Quigley: The Minister has been noticeably silent on Committee Stage. I want to ask him this question in all seriousness: If someone were unlawfully detained and had a genuine grievance for having been wrongly detained for six, eight or ten weeks longer than he should have been detained, has the Minister authority to make some kind of ex gratia payment to such person? If a person were unlawfully detained— and it is only now that this will come to the notice of members of the public —the Minister should provide himself with some authority to make an ex gratia payment to compensate him. If the Minister has not authority under this section, he might consider getting it under the new Mental Treatment Bill which is now before the Dáil.
Mr. MacEntee: I do not appreciate the point Senator O'Quigley has made. I am not a lawyer, so perhaps I cannot do so. I know that when Senator O'Quigley was reading sub-paragraph (iii) of the section, he read it this way:
I cannot conceive of a person being unlawfully detained, having regard to the fact that the Inspector of Mental Hospitals has exhaustively considered every one of these cases, and has come to the conclusion that if the request had come to him in due course, he would have recommended that the Ministerial order be made. In those circumstances, I cannot see how any action would lie with a person for being unlawfully detained, having regard to the fact that a limited number of persons are covered, 280 in all, in respect of whom the orders would have been made. In those circumstances, I cannot see how any exceptional case would arise in which the person would be entitled to recover damages.
A person is detained in a mental hospital because he has been committed there, in the first instance. He is detained there at the request of the resident medical superintendent of the hospital who is familiar with his case and considers he should have further treatment. How could it be determined whether he was unlawfully detained? Can we expect the R.M.S. to say that when he requested that a Ministerial order should be made, he was not genuinely of the opinion that it was necessary to detain the person for a further period, not exceeding six months? If so, then, of course, the R.M.S. would have to give evidence in an action against himself, supporting the plaintiff in the matter. I cannot see how we could expect that type of situation to arise. Therefore, I do not think it necessary to give such an undertaking as Senator O'Quigley requested me to give.
Mr. O'Quigley: I do not want to belabour this situation unduly, but according to to-day's Irish Independent—and I think the Minister said it here —of the 280 patients concerned in this Bill, 53 have been discharged in the normal course since. Up to the time they were discharged, certainly they, as well as the others, were being unlawfully  detained in a mental institution. It may well be that some of the 53 who we now know have been released were kept for longer than they ought to have been kept, and kept without lawful authority.
Mr. MacEntee: Perhaps the Senator would say what he means by “kept for longer than they ought to have been kept”? Does that mean that they were kept without there being any medical reason for keeping them?
Mr. O'Quigley: There was, presumably, a good deal of correspondence between the Departments, the local authorities, the resident medical superintendents and the interests concerned, and it may well be—I do not know: that is why I am asking the Minister to take powers in this or some other Bill—that someone was detained unlawfully. We are legislating here and we should legislate properly and in fairness to these people. If some of these 53 people were detained a month longer than they ought to have been, they would have a very legitimate grievance. We talk about a month's imprisonment, but a month's imprisonment is nothing compared with a month's unnecessary detention in a mental institution while you are sane.
As I say, they might have a genuine grievance. I know the Minister will not expose the resident medical superintendent to legal action, and if he is satisfied, I am quite prepared to leave it, but if, because of this whole departure from the normal procedure, some of these people were detained for a longer period than they should have been, the Minister should have power to make some monetary compensation for the undue period of detention.
Mr. O'Quigley: We do not know all the facts—I am certain the Minister has all the facts available—but like everything else, new facts will come to light as soon as tomorrow's papers have been read. If the Minister is as satisfied as he appears to be that no one would have any cause for action and  that we are not taking away any right by saying:
Mr. MacEntee: First of all, the Senator has misinformed himself about the fundamental position. Not one of those responsible for detaining the 280 knew they were wrongfully detaining them. Senator O'Quigley assumed, and based his speech on the assumption, that some of these resident medical superintendents knew they were detaining people without due authority under the law. Not one of them knew that.
Mr. MacEntee: Precisely. That is why I have the indemnity here. There may be some people who were not in fact detained in good faith. If it should transpire that there were some who were in that position, then I should here and now guarantee to compensate them for the fact that they were unlawfully detained—that is what the Senator has been arguing. He has not been arguing on the basis that people detained in good faith should be compensated. He said people who were “wrongfully detained.”
Secondly, Senator O'Quigley assumed that some of those 53 persons who were discharged since the last properly-authorised period of detention of six months had ended may have been detained longer than was medically necessary by reason of the fact that a Ministerial order was not made. I think I am not incorrect in saying that was one of the assumptions the Senator made.
In fact, there is no reason whatever to believe that any of them were in such a condition that their medical advisers would have felt justified in discharging them from the mental hospital any sooner than they were  discharged. Accordingly, the assumptions on which the Deputy has based his suggestion that we should delete the subparagraph do not exist. I cannot see any good reason for allowing people to initiate legal proceedings in which they cannot hope to succeed.
That is what would happen if we had not this clear barrier. People would say to themselves: “The Minister told the Oireachtas I was wrongfully detained when I was kept in that hospital without due authority. I was detained there by the county manager”—in the case of a health authority—“or by the medical superintendent. I have a fine cause of action against these officers. I will go to a solicitor and take legal advice. It does not matter how I am advised—I shall take the action because I think I am on a good wicket.” On the facts as we know them here, that unfortunate person could not succeed in his action but it would cost him quite a substantial amount of money. It would be quite wrong to give any encouragement to a person to initiate what Senator Ó Ciosáin referred to as vexatious proceedings when he had not a hope of succeeding.
But there is another side to it. Think of the psychiatrists or the county managers who acted in good faith. Are we to subject them to the danger of having proceedings of this sort launched against them? Must we not have concern for all these people who acted in good faith? They would, first, have great difficulty with their authorities. They would have all the worry and anxiety of having to appear in court to defend themselves when in fact they were not culpable in any way because they could not know the true position. Anything they did in this matter they did in ignorance of the facts.
Therefore, it would be quite wrong that we should place these people, acting in good faith, in the situation in which they would have to defend themselves against proceedings taken for wrongful detention. It is for that reason that we have this special provision in the Bill.
 Senator Sheehy Skeffington raised a point to which I shall refer now rather than on the final stage. He asked what action would be taken in relation to the officers of higher grade than this junior officers who ought to have seen he was discharging the duties entrusted to him. At the moment, the whole matter is under investigation. Naturally, that is one aspect of the affair to which consideration will have to be given.
Mr. O'Quigley: The Minister is getting all Stages of the Bill today. Everybody realises the urgency of the situation. I am quite well aware that this Bill was drafted in great haste. Works of this kind, done in haste, are not liable to be free from all the imperfections from which they would be free, if they were drafted at greater leisure.
Secondly, despite what the Minister says about my conception of the 53 people, I think that a situation could arise in which we ought not to deprive people of the benefit of the circumstances in which they have been wrongfully detained.
Thirdly, as I understand the position from the daily papers, this junior officer wrote to the mental institution concerned in all but two cases— though I think that must be a mis-print—giving notification that the Minister had approved of the proposed extensions. It seems to me that there was an apparent authority given to some of the county managers, the medical superintendents and people in charge of mental institutions, and they may have acted upon that and detained people on the basis of that spurious authority.
 The Minister says that of course no county manager or person in charge of a mental institution had any knowledge of this and that this is the first time they understood that these people were being wrongfully detained, and that, in view of that, no action could lie against the county managers or the heads of institutions. The Minister must know that ignorance of the law is no excuse. A new principle has been adopted in this Bill whereby, when a public institution makes a mistake, the citizen who has suffered in consequence is deprived of his right to go to court. There are echoes of the Sinn Fein Funds Act in this section. The Sinn Fein Funds Act set out to deprive people of a legal right which they enjoyed to have a determination as to who owned certain property litigated in the courts. This is quite in line with that lack of respect for the Constitution which characterised the Sinn Fein Funds Act and others. The Minister may say what he likes about lawyers——
Mr. O'Quigley: The Minister for Justice told the Dáil this week that he was glad to have the benefit of a fully qualified lawyer as his Parliamentary Secretary. The Minister for Health may say what he likes about these things sotto voce or in public, but the plain fact is that the Minister is putting in this section to deprive people of the right to take any action, and, in doing so, he is depriving them of the ordinary right they have to go to court to claim that the local authority, the Minister for Health or the head of some private mental institution has wrongfully detained them and to recover damages. That is what he is doing. He is abridging the rights of up to 280 people. For that reason, I strongly oppose that part of the Bill.
Éamon Ó Ciosáin: I find it very difficult to accept the argument put forward by Senator O'Quigley. He seems to lean very much on the side of the patients and their relatives and their legal rights, and no doubt it  would be a serious thing to deprive them of their legal rights, if in fact those legal rights represented anything or they were being deprived of something they were entitled to. The Senator, however, should also realise that there are other people involved in this matter. They are the officers of the local authority who, in all good faith, did what they considered to be their duty. These are innocent people and it is our duty to safeguard them. The Senator was very careful in his argument not to tell us against whom this alleged action would lie. Would it lie against the R.M.S. or the county manager?
Éamon Ó Ciosáin: Would the Senator be happy to have the R.M.S. and the county manager brought into court because of something they did in good faith and in what they considered to be the performance of their duty? It is because I do not want to see innocent people suffer that I am prepared to support this subsection which the Senator seeks to have deleted.
Dr. Sheehy Skeffington: The situation seems to me to be abundantly clear. All these cases are cases of patients for whom the medical authorities have recommended that they should be detained longer than was allowed in the first order, and the Minister made it clear that had the normal procedure been gone through in every case, his Department would have recommended the extension of the time. This Bill puts the matter right because some of them were in accordance with a fully-qualified request held without in fact a full order having been given. In these circumstances, it could not be held that they were wrongfully detained, and therefore how could they claim that they were wrongfully detained because a particular legal form was not gone into? This was merely a formality which was not gone into in each case, and the Minister assures us that his experts in the Department would in every case have fulfilled it. Therefore, it is quite clear that no action could lie.
The Minister has made a good point when he says that it might be made to  appear to an ex-patient who would not fully understand the facts by an unscrupulous lawyer, for instance, that a case might lie in which fees could be collected but no damages. Therefore, it is quite right for the Minister to make it absolutely clear that no action for damages could possibly lie.
Mr. O'Quigley: It is a question whether the law can be made retrospective. They have been deprived of liberty, and not in accordance with law. I very much doubt if this law can validate the wrongful detention and in that way abridge their constitutional right. It does not make any difference to me, as Senator Sheehy Skeffington seems to imply in that kind of side-wind of his, whether lawyers will get fees or anybody will be paid. The Senator wants to see nobody being paid for anything. I often wonder if he cashes his allowance as a member of the Seanad.
Mr. O'Quigley: Lawyers are not the fools Senator Sheehy Skeffington thinks they are. They are mercenary and materialistic and they count the cost. They are not going to take a cod action on the basis that there will be no damages but they will get great fees. If that were to happen, half the lawyers would be struck off the rolls, because they would not be able to run their offices.
Mr. O'Quigley: Of course, barristers would not be in it. If a fundamental right is taken away from people not in accordance with the law, then this House of the Oireachtas should not say: “Although we have taken away from you for three months, say, a fundamental right, you are not  entitled to go into court to see whether you are entitled to compensation for the abridgment of that right”—because that is what Section 2 is doing, abridging the right of people to go into court.
If the Minister is so certain, as he has repeated here today, that no action would lie against anybody, then the thing to do is to delete the section, but he will not do that because he is afraid that vexatious actions will be taken against county managers, medical officers of health and such people. County managers are sued every day; they are sued for malicious injuries, workmen's compensation and things like that. If somebody has an action against county council so and so or against Dublin Corporation, he takes it against the county manager, though the county manager knows nothing at all about what is going on and it is all dealt with by the legal department. County managers do not hang around the courts of justice in this country awaiting with bated breath the outcome of actions against them in their office as county managers.
If that is the only obstacle, as Senator Ó Ciosáin has said, I would have no hesitation for one in saying: “By all means, indemnify county managers against all costs, damages or expenses arising out of any proceedings in which they had a part and were completely innocent.” I do not think the Minister should have introduced this section into the Bill—and I regret it very much —a section which appears to, and, in my view, does, in fact, minimise first, the constitutional right of personal liberty and, secondly, the right of citizens of this country to take, if so advised, legal action against a public authority. That is not good law.
Mr. MacEntee: I have not the legal learning of Senator O'Quigley but there is a difference between actions for workmen's compensation against a county manager or a health authority  and an action taken in this case because in this case it would be against the county manager personally, in his personal capacity, or the medical officer or medical superintendent in his personal capacity. They would be personally liable for any damages or costs which might be given against them.
On the general principle to which subparagraph 3 seeks to give effect, I would commend these words to Senator O'Quigley: Speaking on the Fifth Stage of the 1953 Mental Treatment Bill, the present Leader of the Fine Gael Opposition in the Dáil said this:
On the Final Stage, it is clear that the Bill contains adequate indemnity for all parties against whom proceedings might lie in the event of actions for damages being instituted, and in case there should be any lacunae would it not be advisable for the Minister, at this Fifth Stage, to say that it is the clear intention of the Oireachtas that if such lacunae should subsequently transpire he would pass retroactive legislation effectively indemnifying any persons for carrying out what they conceive to be their duty under the Act under the habeas corpus proceedings?
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