Mary Harney (Dublin Mid West, Progressive Democrats)

I move: "That the Bill be now read a Second Time."

I am grateful to the House for facilitating early discussion of the Bill. I approached the Opposition parties about this matter in the afternoon. While it was not my intention to bring the legislation to the House in such a speedy fashion, given the circumstances with which we may be confronted it is essential we proceed with it as a precautionary measure.

A person in a private psychiatric hospital in Ireland, who has been a patient in that hospital since the summer of 2007 and who is involuntarily detained, sought a judicial review of her detention in June 2008. The case was heard before the courts in October. I was informed today that a decision will be made by the judge in the case at 12.30 p.m. tomorrow. While the case seemed to involve particular circumstances relating only to that patient, it transpired during the hearing in October that there may be wider implications for up to 209 or 210 patients who are involuntarily detained in both public and private psychiatric hospitals in the country. If the case of the Mental Health Commission is lost tomorrow on a technical issue, with which I will deal presently, there could be implications for all of those involuntarily detained. If any of these people in the coming days were to use habeas corpus and discharge themselves, there could be serious implications for that patient's health.

Involuntary detention is a sad but necessary part of mental health services and a decision to detain involuntarily a patient is not easily taken. Under the Mental Health Act 2001 a patient must first be referred by his or her general practitioner. A psychiatrist must then admit that person to an institution. An independent psychiatrist appointed by the Mental Health Commission and a tribunal consisting of a consultant psychiatrist, a lawyer and a lay person must review the decision to involuntarily detain that person within a 21 day period.

The issue which arose in this case concerns the form that the Mental Health Commission used under the Mental Health Act 2001. The Act refers to a prescribed form which is the responsibility of the Mental Health Commission. The view has been advanced in this case that because the form has three boxes with reference to not exceeding three months, not exceeding six months and not exceeding 12 months, it does not give sufficient discretion to the consultant psychiatrist. There is no question of psychiatrists acting inappropriately from a clinical perspective or not acting in good faith. However, the procedure seems to involve these forms. It has been advanced in this case that these forms are invalid. If that is found to be the case tomorrow, it puts at risk the 209 patients involuntarily detained. This is a situation we cannot support. People are only involuntarily detained because they are a danger to themselves, possibly a danger to others, or because detention is vital for appropriate medication to be administered. Of the 3,000 psychiatric patients in the country, less than 10% are patients that are involuntarily detained.

We had the option not to bring this Bill before the House until next week and to await the decision of the court tomorrow. However, if even one patient's care was put at risk, then it is not option that we should pursue. On balance, we have decided to bring the Bill forward today. There was also an option to discharge all of these patients if the case was lost and to readmit them. The trauma that would cause for the individual patients and their families would be completely unwarranted, aside from the administrative difficulties that would arise. On the advice of the Attorney General on 24 October, all of these patients' renewal admittances have been reviewed. In 99% of cases, the period of detention has been upheld.

The Bill does two things. It states that notwithstanding any errors there might be in the form filling, these detentions are not invalid. They may be invalid for other reasons, but they are not invalid by virtue of the renewal forms that are used by the consultant psychiatrists. Second, within five working days of the enactment of the Bill, new renewal orders will have to be made in respect of all these patients.

Issues arise as to the retrospective nature of the Bill. It does not affect the patient who has initiated the proceedings, nor any other patient that may have initiated proceedings, although we do not believe there is any such patient who has done so. The legislation could not affect their particular circumstances. The State has previously brought in legislation in advance of court decisions as a precautionary measure. I understand that one such case was related to EU directives, while another was related to the asylum process. Other legislation with a retrospective nature dealt with the failures in the appointment of a trial judge and the decisions made by that judge were retrospectively made legal.

The Bill is short lived. It only applies to these particular patients and they will all have to go before a new tribunal established by the Mental Health Commission in the 26 days following the enactment of the Bill. There are five days to make the renewal order and 21 days to go through the procedures under the Mental Health Act 2001.

I appreciate that the Opposition parties have had very little time to consider the Bill, which was approved by the Government at around 2 p.m. today. The Attorney General took advice from his own office and from independent counsel, and he has been working on this Bill as a precautionary measure over the past few days. It was his advice that all of these cases should be clinically reviewed to make sure that nobody is being detained for a longer period than is absolutely necessary. It is a very serious decision to remove the liberty of any citizen, and therefore it must be done in accordance with the law.

The judgment call that had to be made today was whether we should await the determination of the court tomorrow and act then, or sometime next week. There is a risk to 209 very sick, vulnerable patients that have been clinically examined and found to be in need of involuntary detention, and we felt that it was a risk not worth taking. I commend the Bill to the House and I look forward to responding to the issues raised by the Opposition parties.

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