Mary Harney (Dublin Mid West, Progressive Democrats)

I appreciate the difficulties for the Opposition because the timeframe for dealing with this legislation has been difficult for us. I will outline the precise dates as I was inaccurate at the earlier briefing. My Department became informed of this case on 10 October. I was recalling from memory about ten days ago. It was actually 10 October.

The case concluded on 17 October. Originally, when the case for judicial review was taken against the decision of the Mental Health Commission to detain involuntarily this patient, the view was taken that the circumstances were solely around this particular individual. It was only during the hearing of the case, which ended on 17 October, that it became apparent that it had wider implications around the form-filling of the consultants of the form prescribed by the Mental Health Commission. Initially, it was felt the circumstances of the case were particular to only one patient, but the possible wider implications — I emphasise "possible" because we do not know yet what the outcome of the court decision will be tomorrow — of the prescriptive nature of the form that does not allow sufficient discretion were advanced during the case. The Attorney General has been considering this matter over the past two weeks or so. He advised that all of these patients should be clinically reviewed. He advised that it was important in advance of any legislation that each of these patients would be clinically reviewed to ensure that all of the involuntary detentions were valid.

Deputy O'Sullivan asked why was 99% held to be valid and 1% was not. I suppose that proves that on examination a detention can at any time be revoked by the consultant psychiatrist. Under section 28 of the Mental Health Act a consultant psychiatrist can at any stage review the detention period of his or her patient, and it is not the case that the patient is only seen every three months, six months or 12 months. The patient engages frequently with his or her clinical team during a period of involuntary detention.

Second, in answer to Deputy Neville, section 7 of the Bill makes clear that this legislation does not, and cannot, have any effect on the current case. The current case will be determined tomorrow and this Bill, if passed into law, cannot affect that patient's rights. Neither can it affect the rights of any other patient who has initiated proceedings, although we do not believe there is any such proceedings.

Clearly, I would not be advancing legislation here unless the Attorney General and his office were satisfied the legislation we were advancing was constitutional. We could not promote legislation here that was not believed to be fully constitutional.

Deputy Ó Caoláin asked for previous examples of when legislation was introduced in advance of a court hearing. I understand there was legislation in relation to the Aliens Act and to EU Directives. If my officials have details of the precise legislation I will make that clear during Committee Stage. However, it is not unusual that we have had legislation pass through the Oireachtas in previous circumstances in advance of a court hearing. In fact, the Immigration Act 2004 was introduced in the interregnum between High Court and Supreme Court proceedings. That legislation was passed by the Oireachtas also to avoid considerable difficulties that could arise. This is one such piece of legislation.

The Bill is time-framed to this extent, that after five working days from its enactment, it no longer has any effect because if the court finds tomorrow that these forms are invalid, then the Mental Health Commission will have new forms, all new renewals for involuntary detention will be under the new procedures and the new forms, and clearly, all of these 209 cases will be reviewed over the next five working days and they will go through the new procedure as well. In that sense, the legislation is time-limited. It is not legislation that will have effect beyond these 209 cases and five working days from now.

The 2001 Act is not defective. The possible difficulty that may arise here is the nature of the form that the Mental Health Commission introduced on foot of the requirement to produce such a form.

I say to Deputy Ó Caoláin that the decision to involuntarily detain somebody is a very serious matter and nobody should be in such a situation unless it is absolutely necessary. No matter what other extraneous circumstances may be advanced, the decision is not made lightly. It is not made that often, relatively speaking. It is only made after quite a number of consultant psychiatrists have reviewed the patient, and it is done in the patient's interests. I see this legislation as in the patients' interests. The clinical view is that these patients need to be in involuntary detention and that, from a Minister's perspective, must come first.

I am sure we will get an opportunity to go through the particular issues that arise.

The Attorney General advised me this morning that the decision of the court would be tomorrow at 12.30 p.m. He advised that there was a possibility of the case being lost on these grounds. In that case legislation would be necessary. We could wait until tomorrow or next Tuesday to pass the legislation, but in the intervening period any one or more of the 209 patients could go to the courts and under habeas corpus, be discharged, but clinically and medically that would not be in the interests of the patient. This is very much about putting the interests of the patient first.

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