Jim Daly (Cork South West, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am here this evening to introduce the Mental Health (Renewal Orders) Bill 2018 to the House. As Deputies will be aware, this is an emergency Bill which is required as a result of a finding of unconstitutionality of part of the Mental Health Act 2001. I thank the Ceann Comhairle, the Whip’s office and the House for agreeing to consider this emergency legislation at short notice. I also acknowledge the support of our colleagues in Seanad Éireann.

There is an urgency to the introduction of the legislation which comes from the finding by the Court of Appeal on 3 May 2018 that section 15(3) of the Mental Health Act 2001 is unconstitutional. Section 15(3) of the Act provides for the involuntary detention of patients for periods not exceeding six months and not exceeding 12 months. The court found that the lack of a mechanism for a patient to seek an independent review of his or her detention within a reasonable time meant that this section breached Article 40.4.1° of the Constitution, which states “No citizen shall be deprived of his personal liberty save in accordance with law”. Acknowledging that this finding had potentially serious consequences for the mental health system, Mr. Justice Hogan placed a stay on the judgment until 8 November 2018 to allow time for the Oireachtas and Government to remedy the position and for the necessary operational changes to be put in place. Failure to legislate to address this judgment and implement the necessary changes within the time allowed by the court, that is, by 8 November 2018, would result in the detention of patients becoming unlawful on the expiry of the stay. The purpose of this Bill, therefore, is to provide a lawful basis for the reception, detention and treatment of persons who are detained involuntarily on renewal orders under section 15(3) of the Mental Health Act.

The decision to detain a patient involuntarily is a serious one. It is primarily taken in circumstances where persons suffering from mental disorders as defined in the Act present a danger to themselves or, in a small number of cases, to others. Under the Mental Health Act, such a decision can be made only after a registered medical practitioner refers a patient to the clinical director of an approved centre or a consultant psychiatrist on the staff of the approved centre. If the psychiatrist makes a decision to admit the patient, the patient’s case will be reviewed within a 21-day period by an independent psychiatrist appointed by the Mental Health Commission and by a mental health tribunal consisting of a consultant psychiatrist, a lawyer and an independent layperson. To be involuntarily detained, a registered medical practitioner, two psychiatrists and a tribunal must all decide that the circumstances of the patient’s case are such that detention is warranted.

Any time a patient’s detention is extended by a renewal order the patient is again examined by his or her consultant psychiatrist, further examined by an independent psychiatrist appointed by the Mental Health Commission and the detention is reviewed by a tribunal. Where the tribunal affirms the order for the patient’s detention, the patient can appeal this decision to the Circuit Court. The patient’s consultant psychiatrist must revoke an order if he or she becomes of the opinion that the patient is no longer suffering from a mental disorder. When a patient’s order is revoked he or she may leave the approved centre or he or she may agree to stay to receive treatment on a voluntary basis. A total of 1,653 orders were revoked by consultant psychiatrists in 2017. This amounts to 47% of all the orders made.

The Court of Appeal found that the provisions of section 15(1) and (2) provide a mechanism for a patient to seek an independent review of his or her mental health status within a reasonable time. In 2017, 3,245 of the total of 3,524 admission and renewal orders issued, approximately 92% were made under these sections of the Act.

Currently, section 15(3) of the Mental Health Act allows for periods of detention of up to six months and up to 12 months. It was this provision that the Court of Appeal held to be unconstitutional. The court found that it was not, as such, the fact that the renewal orders in question could last for six months or even 12 months that gave rise to this finding, but rather that there is not a means for a patient to access a review of his or her mental health status within a reasonable time.

I will now go through the Bill section by section. Section 1 is an interpretation section standard to most Bills. Section 2 is an expenses section which deals with any expenses incurred by the Minister in the administration of the Bill and is, likewise, standard to most Bills.

Section 3 is a provision that provides for replacing the section 15(3) renewal orders under which patients are currently detained with new orders made under an amended section 15(3). Section 3(1) provides for the patient’s consultant psychiatrist to examine him or her within five days, or eight days if the Minister permits in writing, of the commencement of the section. Where the consultant psychiatrist is satisfied that the patient continues to suffer from a mental disorder, he or she will make a new renewal order for a maximum duration of six months. Section 3(2) provides that the replacement renewal order is in substitution for and not in addition to the unexpired renewal order. The replacement renewal order takes effect as if it were an order made under section 15(3), and attracts the provisions of sections 16 to 18, inclusive. These provisions relate to a review of the renewal order by a tribunal, which cease to apply to the unexpired renewal order. Section 3(3) explains what can happen to an unexpired renewal order on commencement of the section.

Section 4 amends section 15 of the 2001 Act by substituting a new section 15(3) for the existing section 15(3). Its purpose is to provide for repeat renewal orders of a maximum duration of six months; to provide for a new right for the patient or his or her legal representative to apply to the Mental Health Commission for a review of his or her detention by a tribunal; to provide that the new right of review by a tribunal can be accessed at or after three months from the date the renewal order was made under section 15(3); and to provide that the new right of review to be carried out by a tribunal is a review of whether the patient is suffering from a mental disorder.

Section 5 is a consequential amendment of section 16 of the 2001 Act to provide for the review, as set out in section 4 of this Bill. It provides that, at the time a patient is notified of a renewal order being made, he or she is also notified that he or she has access to the new right of review.

Section 6 is a consequential amendment of section 17 of the 2001 Act to provide for the new right of review. It allows the Mental Health Commission to refer an application for review to a tribunal.

Section 7 is a consequential amendment of section 18 of the 2001 Act to provide for the new right of review. It adds that the tribunal's decision will be made not later than 21 days after the date the Mental Health Commission received the review application.

Section 8 confirms that several existing rights under the 2001 Act are unaffected. These are maintaining provisions for discharge under section 28 of the 2001 Act, where the consultant psychiatrist becomes of the view that the patient is no longer suffering from a mental disorder; that any court proceedings which were in train before the commencement of the legislation are unaffected by the introduction of this new legislation; and that any proceedings relating to an appeal to the Circuit Court under section 19 of the 2001 Act are unaffected by the introduction of this new legislation.

Section 9 deals with the Short Title, collective citation, construction and commencement matters, and is standard to most Bills.

In delivering its judgment, the Court of Appeal said that the finding of unconstitutionality demands an immediate and imperative response on the part of the other branches of government, namely, the Oireachtas and the Government. Given the urgency of the situation, as well as the particularly vulnerable cohort of patients affected by this judgment, the support of all parties and Independents is critical to ensure timely commencement of this important legislation. Above all, we have a collective responsibility always to keep the rights, will and preference of the patient to the fore. This is reflected in the strong tradition of co-operation on mental health issues across the membership of the Houses. For all these reasons, I recommend the enactment of this legislation and ask for the support of this House in passing it in a timely way. I will also ask the Seanad, taking into account the particular context and circumstances of this matter, to pass an earlier signature motion, asking the President to sign the legislation earlier than the period normally applying to legislation passed by the Houses.

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