Mark Ward (Dublin Mid West, Sinn Fein) | Oireachtas source

On amendment No. 30, there is no justification for reviewing Part 8 of the principal Act separately from the remainder of the Act. Even though Part 8 is under the remit of the Minister of Health, the requirement in the provision is for the Minister for Children, Equality, Disability, Integration and Youth to consult with the former in commencing the review process. It would be more appropriate to review the functioning of the Act as a whole.

Regarding amendment No. 31, as Deputy Sherlock noted, those who campaigned for the legislation argued specifically that a comprehensive review clause was necessary to ensure it would remain under ongoing review at regular intervals, given the pace of change in this area globally and advances in practice. Therefore, I recommend adding further provisions to ensure the Act is reviewed at least every three years.

Amendment No. 32 is interlinked with amendment No. 31. It would make more sense to align the reviews of this legislation with those of the Mental Health Act 2001. Mental Health Reform's human rights analysis of the draft heads of this Bill, which we received last October, states:

Persons subject to the 2001 Act, NGOs, mental health professionals and a range of other stakeholders have been frustrated with the delays in reviewing and subsequent implementation of proposed reforms to the legislation. The delays are regrettable given the need to urgently address the serious deficits in safeguarding the human rights of persons subject to the legislation. The authors note that in 2011, the then Minister for Health, James Reilly, and the then Minister of State with responsibility for Mental Health, Kathleen Lynch, established a Steering Group on the Review of the 2001 Act. This was to give effect to the commitment in the Programme for Government to review the 2001 Act. The ERG was subsequently appointed to make final recommendations on the reform of the 2001 Act. The work of the ERG published in 2015 was informed by the recommendations from the Steering Group, which published its report in 2012. It is disappointing that it took 6 years before the Heads of Bill were published earlier this year (July 2021). S.75 in the Heads of Bill provides that the Minister for Health will undertake a review of the amending mental health legislation not later than 5 years after its commencement. S.75 provides that the review will assess the effectiveness of the changes introduced and the Minister is required to make a report to each House of the Oireachtas of their findings and conclusions resulting from the review. The authors are similarly concerned with the delays in the commencement of the 2015 Act. S.93 of the 2015 Act commits to a review of Part 8 on AHDs before the 5th anniversary of its commencement, while s.146 provides that the Minister for Justice in consultation with the Minister for Health will review the functioning of the 2015 Act (other than Part 8) before the 5th anniversary of the date of enactment of this Act.

I could go on, but I will leave it at that.

I will deal with those separately. Amendments Nos. 31 and 33 cannot be accepted. While I understand their intention is to be inclusive provisions and to ensure a robust review, they would actually have the unintended consequence of restricting the review to only those matters stated. The review provisions must be broad enough to address whatever issues may come up at that point in terms of the operation of the Act.

Likewise, amendment No. 32 cannot be accepted. I cannot guarantee that we would be able to undertake a review of the two Acts at the same time. It is an issue that came up earlier. I am seeking clarity as to when the Bill on the 2001 reform Act will be passed and will become an Act. I cannot commit that the reviews of two pieces of law, one that has not been drafted yet, will be undertaken at the same time in a three, four or five-year review. What we can do is to ensure that whatever review of this legislation takes place, if there are recommendations that are relevant to other pieces of legislation, they can be implemented at that time.

Amendment No. 29 seeks to include subsequent reviews after the initial five-year period. Most pieces of legislation have a review period but I am not sure how appropriate it is to have a rolling review. At that stage, we might be looking at entire amending legislation or something like that, and stakeholders can identify whether there is a need for review. Particularly in the context of this legislation, we have to remember that IHREC has a specific monitoring role, so that gives some security. There will be a review after what is now a period of five years but IHREC will be undertaking regular monitoring. That may indicate problems and some issues may come up even before the first review, given IHREC’s monitoring role. I do not think the rolling provision is necessary.

Amendment No. 30 seeks to include Part 8 in the review. I can confirm to members that I will be bringing a Government amendment forward to address this matter to ensure the review of Part 8 will be included in the overall review of the legislation. I agree that a coherent and comprehensive review is desirable and we have agreement from the Department of Health on that point. We are not able to accept this particular wording but we will see that Part 8 is reviewed as part of the overall Act, which is an important step forward.