Mary Harney (Dublin Mid West, Progressive Democrats)

In response to Deputy Neville, section 7(1) states: "Nothing in this Act shall prejudice any right or entitlement of a patient under or relating to section 28 of the Act of 2001." That is in regard to the effect on this particular patient and, as I said, this legislation cannot affect this patient.

Deputy Ó Caoláin took the view that perhaps this person is only involuntarily detained because there is no alternative suitable accommodation. The criterion under the Mental Health Act 2001 that must be met in order for a person to be involuntarily detained is so serious, because it is a very serious issue to take away a person's liberty and involuntarily detain them in a psychiatric institution, that one could not meet that it if one did not satisfy the very strict basis on which a decision is made if alternative accommodation was more suitable.

As I said earlier, the admitting psychiatrist has to make the decision to admit. This is reviewed within a 21-day period by an independent psychiatrist appointed by the Mental Health Commission. Also, within that 21-day period a tribunal is held consisting of a lawyer, a layperson and a different consultant psychiatrist to review the case. In approximately 10% of cases, the tribunal makes a decision not to involuntarily detain the person and in approximately 90% of cases it confirms the involuntary detention.

Those thresholds and criteria are so serious that there is no question, in our view, that somebody could be involuntarily detained simply because there was no alternative in place. That would be unthinkable, and to take away somebody's liberty on that basis would not be warranted and would not be stood over by the Mental Health Tribunal. This is why, under the Act, the detention must be reviewed constantly for periods not exceeding three months, six months or 12 months. It cannot be a decision that is made today and not considered again for a considerable time.

The Mental Health Commission includes patient advocates in its membership. Schizophrenia Ireland and many other patients groups are represented on the commission, not just those from the clinical psychiatric community. We are very proud of this legislation, which is modern, progressive and in compliance with the European Convention on Human Rights. I am advised the Human Rights Commission was not in attendance during the course of the court hearing, although it was a party to the proceedings.

With regard to the renewal orders, if the case is not lost on these grounds, it may well be found tomorrow that this legislation was completely unnecessary. However, having listened to the advice of the Attorney General, even if one person's health was put at risk by virtue of a decision tomorrow, not to act today was a risk we were not prepared to take in the interests of patient safety. These are the most vulnerable patients in any health system — mentally ill people who must be detained against their will in order to have appropriate medical treatment. Therefore, it was not worth taking the risk even if it only affected one patient.

In any event, if the judgment is that the procedures were faulty, then it is better that we do this today than wait until next week. On balance, that is the right decision. I acknowledge the rushed circumstances in which the Opposition is agreeing to this legislation. Perhaps tomorrow we will know whether it was necessary. In any event, its sell-by date is effectively five working days from its enactment because all of these patients will have to have a new renewal order made in regard to their detention.

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