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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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