John Lahart (Dublin South West, Fianna Fail) | Oireachtas source

I thank the Minister of State for presenting this Bill. On reflection, what a wise and prudent judgment by Mr. Justice Gerard Hogan. Had he not given that judgment to delay by six months and by giving the Oireachtas an opportunity to legislate against the clock, there would have been a truly appalling vista for the patients involved. The Court of Appeal delivered its decision in the case of AB v.Clinical Director of St. Loman's Hospital in May 2018. Mr. Justice Gerard Hogan, giving judgment, declared a particular section of the Mental Health Act, which regulates the involuntary detention of people with mental health difficulties, to be inconsistent with the constitutional guarantee of personal liberty. This is a pretty serious charge.

The constitutional issue lay in the argument of the complainant, Mr. AB, that there was not any effective process by which he could dispute an assessment that he continued to suffer from a mental disorder during the operation of the actual orders in existence. In other words, Mr. AB argued, a patient could have a renewal order for 12 months affirmed under the processes that applied, yet could subsequently recover from his or her mental illness in that period but have no effective means of initiating a review of his or her detention before the end of the 12 month period.

The most significant aspect of this judgment is the remedy offered by the court.

Ordinarily, a finding of unconstitutionality will result in an immediate order declaring the law to be invalid, a remedy that has been described as a judicial death certificate for a law. In this case, Mr. Justice Hogan made an order declaring section 15(3) to be invalid, but he suspended the effect of the declaration for a period of six months to enable this House to do its work. The law, therefore, has been judged to be unconstitutional, but it will, as we know, remain in place until 18 November, at which point the declaration of unconstitutionality will take effect and the law will be invalid.

The new framework proposed in this new provision will reduce the maximum period by which a detention order can be extended from 12 months to six. It will also provide for a new means by which a patient can apply for a review of his or her detention. We welcome this. It is also welcome that under the new framework, following an initial admission order, a consultant psychiatrist can renew the detention of a patient for an initial period of three months under section 15(2) and thereafter for periods of six months under the revised section 15(3). In addition, the patient will have the right, acting on his or her own behalf or through his or her legal representative, to make an application to have the merits of his or her detention reviewed after a period of three months of detention. This will serve to protect the public and the rights of the patients involved.

To reinforce what my colleague Deputy James Browne said, the Government has been tardy in enacting legislation and following through on publication of the report by the expert group. Up until now it has made only one change, although the group began its work in 2012. Fianna Fáil published its Bill in 2017 and it became the Mental Health (Amendment) Act this year. One of the key changes involved a clarification of the definition of voluntary patient, which goes to the heart of what is being proposed in this Bill.

I am thankful to have had the opportunity to contribute to the debate on the Bill.

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