Dan Neville (Limerick West, Fine Gael)

I want to raise some concerns about the Bill. The first concern is the fact that is has been rushed. It is only 40 minutes since I received this detailed Bill, containing five pages and eight sections. For a non-legal person who needs a full examination of the detail of the Bill, that is of great concern to me. Rushed legislation is often bad legislation. The reserved judgment was on 16 October, yet it is the day before the decision of the court that the Minister has decided that the Bill is necessary and must be rushed through the Dáil. She could have brought it before the House at any stage since 16 October and allowed us time to examine fully the contents and their implications, rather than take the approach she is taking today. Can the Minister explain why she has delayed since the reserve judgment? As I have been unable to research this, I have had to take much of what the Minister says on trust. I am concerned about that, because it is our duty to probe the legislation, but I accept the difficulties that she is facing at the moment.

This was an administrative cock-up that should not have happened. Serious questions need to be answered when very vulnerable patients have been put in a situation where they are now being addressed by a Bill in the Dáil. There are legal implications about their safety and their continued treatment in the foreseeable future. We are concerned about the patients and their safety if they are discharged into the community, because we know that 80% of those who die by suicide are suffering from psychiatric illness. Not all patients who are involuntarily detained are suicidal; in fact it is only a minority of them. However, we must worry about the safety of any that might be discharged. Due to the serious conditions from which these patients suffer, there is probably a higher level of suicide among them than within normal psychiatric patients.

We are also concerned about the small number that might be a danger to other people if they were discharged. This is a small number and we do not want to send out the message that we are concerned about 209 people being a danger to the public. This is not so. It is a very small minority of those patients who may be a danger to other people. We must protect those other people, but we must not stigmatise all 209 patients with the idea that they represent a danger to everybody. From the 2001 Act, we know that those patients who are detained involuntarily are admitted because it is in the best interests of the patient that this happens. It is in their long-term well being and chances of recovery that the clinicians decide that these patients should be involuntarily detained.

We have some concerns about the constitutionality of the Bill. If the High Court finds tomorrow that the basis of the woman's detention is unlawful due to an error in the procedures for renewing her detention, how will the enactment of this legislation make her detention lawful until the procedural error is fixed? Article 40 of the Constitution provides a mechanism whereby the legality of a detention can be challenged. It is one of the most important rights in our legal and political system, or in the legal system of any democracy. The State does not have the power to unlawfully detain its citizens. The 1982 case of the State (Aherne) v Cotter demonstrates the importance of this right. In his judgment, Mr. Justice Walsh stated that the application to challenge the legality of the deprivation of someone's personal liberty is enshrined as a constitutional right in respect of which the whole procedure is set out in the Constitution.

The judgment tomorrow may find a flaw in the detention of the patient, which would result in the consequent setting at liberty of the patient herself. There are 209 patients that will be affected by this ruling. If the judge finds for the applicant in the case and the Oireachtas passes this legislation this evening, are we still going to see a rush of applications down to the High Court central office tomorrow afternoon to lodge Article 40 proceedings against the State for their continuing unlawful detention? Is the Minister sure it is within the competence of the Oireachtas to enact legislation to continue the unlawful detention of any person? Is she sure that legislation would rightfully enjoy the presumption of constitutionality? Will the Minister set our minds at rest that she is sure that it is within the competence of the Oireachtas to enact legislation to make lawful retrospectively the otherwise unlawful detention of a patient or any other person?

We have seen examples of rushed legislation in this area before, most recently with the Government's response to the C case, which still raises concerns. I ask the Minister to convince the Opposition that there is no constitutional difficulty arising from this case and that we will not have a situation over the weekend whereby this legislation, that we are rushing through the House, will be found to be unconstitutional. I hope the Minister understands my concerns about this.

In general, the Mental Health Act has worked well in its first year of operation, with 25% fewer involuntary admissions. We must welcome that. It is a serious decision of the Mental Health Commission and its servants to withdraw somebody's freedom of movement. We understand why it has to be done and we also know there are concerns about the 2001 Act. We have repeatedly asked when the necessary amendments to that legislation will be made. What has happened today may be a prompt for the Minister to inform us when she plans to introduce the necessary amendments to the 2001 Act. Hopefully, it will be in the very near future.

It is interesting to note the some 11% of detentions were revoked by the mental health tribunal. In the time remaining, I ask the Minister for information from the HSE concerning proposed cuts in psychiatric services. I appreciate, however, that the Minister may not be able to provide that information this evening. The mental health alliance says the cuts amount to €70 million, but I cannot see where that will come from.

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