Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)

I am greatly discomfited by the proposition before the House. This Bill comes before the Dáil in what can only be described as extraordinary circumstances. Speaking with my colleagues following the Minister's briefing this afternoon, I cannot recall an instance over my 11 years in this House where legislation was passed in this way in advance of a court case and in anticipation of the outcome of that case.

This Bill is clearly anticipating the outcome of a court case due in literally a matter of hours. As always with such emergency legislation and as other speakers have stated, the Government has the advantage of the advices of the Attorney General and his legal team of experts. On the other hand, I am neither legally trained nor do I have instant access to legal and constitutional experts but this Bill raises major questions for me. I have to ask whether it cuts across the right of access to the courts of this and other citizens in similar circumstances to the woman in question or indeed the right of all citizens. On the face of it, it suggests that it may very well do. If the High Court case is won by the woman in question tomorrow, the Oireachtas will have put in place legislation to nullify the judgment of the court. Where does this place the separation of powers between the Judiciary and the Oireachtas? This legislation would bar the way for others taking a similar course or following on from the judgment, if it is successful, by seeking a similar outcome by way of a habeas corpus application. As other colleagues have asked, what are the constitutional implications of this legislation?

Referring to the principles for the protection of persons with mental illness adopted by the General Assembly of the United Nations on 17 December 1991, which states clearly that every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights, as recognised in the Universal Declaration of Human Rights. Where does all that stand if this legislation is adopted? Most important, what are the implications of this emergency legislation for the rights of people with mental illness? In the very limited time since the Minister's briefing this afternoon at 2.30 p.m. it has not been possible to get to the kernel of the matter nor has all the salient information been shared. How has this situation arisen? It seems extraordinary that this situation should have arisen because the forms used to address these matters do not apparently conform with the requirements under the Mental Health Act 2001.

This matter was not part of the earlier briefing and I did not have prior sight of the article which other elected colleagues had at the briefing meeting. I ask the Minister to please follow me on this. The woman herself states that the only reason she is in the institution where she is currently detained is because the HSE is failing to provide adequate support and accommodation. She has claimed that her doctors believe she would fare best in supported accommodation outside hospital and that she remains detained against her will in the hospital here in Dublin because there is no supported accommodation available for her. This is a huge issue. Obviously what we would like to see is the HSE and the Minister and her Department moving with the same alacrity as she has demonstrated in bringing forward this legislation to provide the particular care that patients such as this woman require. We were told in the course of the briefing that the psychiatrists involved in the assessment have all confirmed that it is in the best interests of the patient concerned that she continue to be detained in the hospital named. Is this the case — because this was not a detail shared?

I would be greatly disturbed if it is the case that this woman is being detained there, not because it is where she is best kept in the view of the clinicians who have made the assessment but because the State has failed to provide the appropriate accommodation and care she requires and that this legislation is forcing a further period of detention on this woman in what is not viewed allegedly — I ask the Minister to clarify — by those who would have the professional wherewithal to make that determination as the alternative accommodation I have described. On a general point, this situation emphasises the need for rights-based disability and mental health legislation and for a root and branch user-led review of mental health services in this State. I hope this experience, at the very least, would prompt all of that to happen. I would appreciate the Minister's responses and hopefully the assurances that the House clearly needs.

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