The Gazette 1981

GAZETTE

SEPTEMBER 1981

they have abandoned their professional independence for a system which is not conducive to speaking their minds on the obvious inadequacies within it. Those who have raised questions of public importance in relation to their work and the care of their patients have, until quite recently, been censured for "bringing the service into disrepute". Usually failing to achieve the improvements they have sought for their patients, such staff have, on humanitarian grounds, felt compelled to continue treating them, even though in inadequate conditions. Whilst, until quite recently, this has produced a sense of defensive apathy on the part of staff, it is becoming increasingly clear that today's more professionally confident and independently-minded staff are no longer prepared to tolerate these restrictions at the expense of the better welfare and treatment of their patients. The Solution The single most important first step is a commitment by Central Government to a policy for the development and vigorous implementation of an alternative comprehensive community-based psychiatric and geriatric service which, in the best interests 'of a humanitarian and effective approach to patient care, will phase out unnecessary and excessive institutional containment of mentally disabled people. Implicit in this policy is the requirement that Central Government have the courage to make ah entirely fresh approach to the whole question of funding chronically under-resourced but socially important public sector facilities, such as the services for the mentally ill, the mentally handicapped and the elderly. By co-operation between Central Government, the Health Boards and the various voluntary organisations, it would be possible to arrange an investment programme financed along the lines of the public sector investment plan for the purpose of developing these services. Such an innovative approach is necessary to fund these Poor Law public sector services which have traditionally fared worse in the allocation of capital resources by the Government. There is a need for considerable reform at administrative, political and legal level. The ad- ministrative and policy-making structures in the De- partment of Health must be revised so that the re- quirements of the mentally disabled are not ignored in the competition with stronger voices for available resources. At local level, greater autonomy for policy- making and effective control over resources and services must be returned to the Health Boards. Indeed, rather than see the present unsatisfactory system continue, it would be preferable to explore the possibility of extending the concept of "privatisation" of the public sector health service in a different way. Rather than seeing the public sector continuing at the bottom of a two-tier health service, it might be preferable to modify the role of the public sector so that it, too, can evolve into a number of different semi-statutory or voluntary-type bodies, with a responsibility for a defined area of service and control over management of the budget and service occurring at local level, under the supervision of local boards of management. At a political level, the development of an egalitarian social order requires, in a spirit of pragmatic altruism, that politicians will give positive leadership in areas in

which, up to now, there has been no apparent immediate political reward. In conclusion, it is perhaps appropriate to turn to the potential role waiting to be played by the legal profession and the judicial process in securing and developing the rights and entitlements of the mentally disabled. As a member of a Health Board which has invested a considerable amount of time and energy of its members in planning the development of better services for the mentally ill, the mentally handicapped and the elderly, I have become progressively more frustrated and angry at the lack of response and, indeed, at the sustained resistance and opposition to change and improvements in the Mental Health Service demonstrated by the Department of Health. Convinced that the mentally disabled possessed the rights and entitlements which I have earlier articulated and confident that these rights were enshrined explicitly or implicitly in statutory law or in the Constitution, I decided to read the Health Acts and the Constitution. The Health Acts, cumulatively, amount to a simple Catch 22 in which the Health Board is compelled to provide services, but in which its responsibilities do not extend beyond providing them to the level of resources provided by the Minister and his department. Conversely, the Minister and his department do not have the statutory responsibility to provide the services, only the resources, and therefore they do not seem to be liable for the deficiency in the service provided. It seemed a simple matter therefore to identify that article of the Constitution, which every schoolboy and schoolgirl knows is the keystone of fair play handed down to us by Pearse and his colleagues, in which the State "undertakes to cherish all the children of the nation equally". There turned out to be but one problem — to an amateur, and at first reading, there seemed to be no such article in our Constitution. To my amazement, somewhere between Padraig Pearse and the drafting of the first and second Constitutions of this country, such a fundamental concept was edited out of the Constitution — no doubt by a keen- eyed civil servant who anticipated well the trouble In which such frank idealism would land him and future Ministers in the decades ahead. I believe that the series of Constitutional cases which have been heard in America in the past 7 years or so will prove to have a very significant bearing on the development of our mental health services. The landmark cases of Wyatt v. Stickney, Donaldson v. O'Connor, Dickson v. Weinberger and Halderman v. Pennhurst provide, at the most, case authorities for the guidance of Irish courts and, at the least, considerable encouragement that it is worth testing our Constitution in the courts to seek, if necessary, to vindicate the rights and entitlement, of the mentally disabled. These cases successively established that it was a "violation of the very fundamentals of due process" to deprive any citizen of their liberty for the purposes of treatment and then to fail to provide adequate levels of treatment; that a court could order a Government to finance the establishment of alternative care and treatment facilities; that a court could order a State to make plans to provide for the development of community services for residents in inhumane institutions; and that a court would uphold an action against professional staff in an institution in which a patient has been detained without

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