Jan O'Sullivan (Limerick East, Labour)

I thank the Minister of State for taking on board the point I made in amendment No. 3, which I will withdraw on that basis. The main points I wish to make are in regard to amendment No. 6 and the alteration and amendment of the Mental Health Act 2001.

We have already expressed alarm, as I did this morning on the Order of Business, in regard to the recommittal and this way of amending legislation. I searched back and found my file on the Mental Health Act 2001 and found I had received representations on the legislation from the Irish Council for Civil Liberties, Schizophrenia Ireland, the National Disability Authority and possibly other organisations whose records I have not kept. A White Paper was published in advance of that legislation, so there was clearly much discussion around the balance of rights, because there is a very sensitive balance of rights in regard to the detention of people who have a psychiatric illness and who may be a danger to themselves and others. We are all realistic enough to know there are situations where people have to be detained for their own good. However, it is a balance of rights, which is the point that concerns me here.

I have not had a chance to consult with anyone in advance of this debate because we received the list of amendments only yesterday and it was this morning before I had an opportunity to fully read the amendment. In the original Mental Health Act of 2001, there was a provision under section 13 and the other section referred to, section 27, in regard to the removal of persons to approved centres. Section 13(3) of that Act states:

Where the clinical director of the approved centre or a consultant psychiatrist acting on his or her behalf and the registered medical practitioner who made the recommendation are of opinion that there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist the members of the staff of the approved centre in the removal by the staff of the person to that centre and the Garda Síochána shall comply with any such request.

There was concern among some of the organisations about definitions of, for example, an authorised person and who that person should be. The assistance of the Garda Síochána could already be sought, and gardaí were obliged under the law to comply with the request for assistance, so there was already a fairly tight system whereby a person could be detained and brought back to the approved centre. We need a far better explanation as to why that legislation is inadequate and why we need new legislation.

It is a matter of balancing rights. People in these organisations are genuinely concerned that there may be an over-heavy hand in some situations. While I accept that in the majority of situations the person does need to be detained, it is a very fine line and one on which, as legislators, we need to tread carefully.

The "authorised person" is defined in the amendment. Although the Minister of State claims they will be qualified people, I see nothing in the legislation that describes exactly what kind of person can be authorised. Must they have a particular professional qualification or be a particular kind of person? Is there a loophole whereby these centres could take on anybody who is physically strong enough to detain these persons and bring them back to the authorised centre?

These are the concerns I have with the legislation. It is an important duty on us, as legislators, to protect the public in these kinds of situations and to make sure we are not leaving loopholes or gaps in legislation that could affect people's civil liberties and human rights at a later stage. I am concerned that the definition of an authorised person appears quite loose. It appears the registered proprietor of the centre can pretty much decide who the authorised person should be. In the Act of 2001, there were much tighter controls over who could or could not remove a person who needed to be brought back to a centre.

Has there been a problem with the Garda Síochána assisting where necessary? Generally, if somebody needs to be detained, for whatever reason, the Garda Síochána is the organisation which is used to doing that kind of thing, and it is controlled in turn by codes of practice that have been tightened up over the years. Checks and balances are in place, with a Garda Ombudsman giving the public a place they can go if they feel they are not being properly treated. Another one of the suggestions in this legislation is that there should be advocates for the people concerned but, again, I do not see any reference to this in the amendments.

My concerns are purely concerned with ensuring we protect the rights of the individuals concerned and that we do not, in our haste, enact legislation that turns out not to protect the public as it should.

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