Mary Harney (Dublin Mid West, Progressive Democrats)
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I move: "That the Bill be now read a Second Time."

I am grateful to the House for facilitating early discussion of the Bill. I approached the Opposition parties about this matter in the afternoon. While it was not my intention to bring the legislation to the House in such a speedy fashion, given the circumstances with which we may be confronted it is essential we proceed with it as a precautionary measure.

A person in a private psychiatric hospital in Ireland, who has been a patient in that hospital since the summer of 2007 and who is involuntarily detained, sought a judicial review of her detention in June 2008. The case was heard before the courts in October. I was informed today that a decision will be made by the judge in the case at 12.30 p.m. tomorrow. While the case seemed to involve particular circumstances relating only to that patient, it transpired during the hearing in October that there may be wider implications for up to 209 or 210 patients who are involuntarily detained in both public and private psychiatric hospitals in the country. If the case of the Mental Health Commission is lost tomorrow on a technical issue, with which I will deal presently, there could be implications for all of those involuntarily detained. If any of these people in the coming days were to use habeas corpus and discharge themselves, there could be serious implications for that patient's health.

Involuntary detention is a sad but necessary part of mental health services and a decision to detain involuntarily a patient is not easily taken. Under the Mental Health Act 2001 a patient must first be referred by his or her general practitioner. A psychiatrist must then admit that person to an institution. An independent psychiatrist appointed by the Mental Health Commission and a tribunal consisting of a consultant psychiatrist, a lawyer and a lay person must review the decision to involuntarily detain that person within a 21 day period.

The issue which arose in this case concerns the form that the Mental Health Commission used under the Mental Health Act 2001. The Act refers to a prescribed form which is the responsibility of the Mental Health Commission. The view has been advanced in this case that because the form has three boxes with reference to not exceeding three months, not exceeding six months and not exceeding 12 months, it does not give sufficient discretion to the consultant psychiatrist. There is no question of psychiatrists acting inappropriately from a clinical perspective or not acting in good faith. However, the procedure seems to involve these forms. It has been advanced in this case that these forms are invalid. If that is found to be the case tomorrow, it puts at risk the 209 patients involuntarily detained. This is a situation we cannot support. People are only involuntarily detained because they are a danger to themselves, possibly a danger to others, or because detention is vital for appropriate medication to be administered. Of the 3,000 psychiatric patients in the country, less than 10% are patients that are involuntarily detained.

We had the option not to bring this Bill before the House until next week and to await the decision of the court tomorrow. However, if even one patient's care was put at risk, then it is not option that we should pursue. On balance, we have decided to bring the Bill forward today. There was also an option to discharge all of these patients if the case was lost and to readmit them. The trauma that would cause for the individual patients and their families would be completely unwarranted, aside from the administrative difficulties that would arise. On the advice of the Attorney General on 24 October, all of these patients' renewal admittances have been reviewed. In 99% of cases, the period of detention has been upheld.

The Bill does two things. It states that notwithstanding any errors there might be in the form filling, these detentions are not invalid. They may be invalid for other reasons, but they are not invalid by virtue of the renewal forms that are used by the consultant psychiatrists. Second, within five working days of the enactment of the Bill, new renewal orders will have to be made in respect of all these patients.

Issues arise as to the retrospective nature of the Bill. It does not affect the patient who has initiated the proceedings, nor any other patient that may have initiated proceedings, although we do not believe there is any such patient who has done so. The legislation could not affect their particular circumstances. The State has previously brought in legislation in advance of court decisions as a precautionary measure. I understand that one such case was related to EU directives, while another was related to the asylum process. Other legislation with a retrospective nature dealt with the failures in the appointment of a trial judge and the decisions made by that judge were retrospectively made legal.

The Bill is short lived. It only applies to these particular patients and they will all have to go before a new tribunal established by the Mental Health Commission in the 26 days following the enactment of the Bill. There are five days to make the renewal order and 21 days to go through the procedures under the Mental Health Act 2001.

I appreciate that the Opposition parties have had very little time to consider the Bill, which was approved by the Government at around 2 p.m. today. The Attorney General took advice from his own office and from independent counsel, and he has been working on this Bill as a precautionary measure over the past few days. It was his advice that all of these cases should be clinically reviewed to make sure that nobody is being detained for a longer period than is absolutely necessary. It is a very serious decision to remove the liberty of any citizen, and therefore it must be done in accordance with the law.

The judgment call that had to be made today was whether we should await the determination of the court tomorrow and act then, or sometime next week. There is a risk to 209 very sick, vulnerable patients that have been clinically examined and found to be in need of involuntary detention, and we felt that it was a risk not worth taking. I commend the Bill to the House and I look forward to responding to the issues raised by the Opposition parties.

Dan Neville (Limerick West, Fine Gael)
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I want to raise some concerns about the Bill. The first concern is the fact that is has been rushed. It is only 40 minutes since I received this detailed Bill, containing five pages and eight sections. For a non-legal person who needs a full examination of the detail of the Bill, that is of great concern to me. Rushed legislation is often bad legislation. The reserved judgment was on 16 October, yet it is the day before the decision of the court that the Minister has decided that the Bill is necessary and must be rushed through the Dáil. She could have brought it before the House at any stage since 16 October and allowed us time to examine fully the contents and their implications, rather than take the approach she is taking today. Can the Minister explain why she has delayed since the reserve judgment? As I have been unable to research this, I have had to take much of what the Minister says on trust. I am concerned about that, because it is our duty to probe the legislation, but I accept the difficulties that she is facing at the moment.

This was an administrative cock-up that should not have happened. Serious questions need to be answered when very vulnerable patients have been put in a situation where they are now being addressed by a Bill in the Dáil. There are legal implications about their safety and their continued treatment in the foreseeable future. We are concerned about the patients and their safety if they are discharged into the community, because we know that 80% of those who die by suicide are suffering from psychiatric illness. Not all patients who are involuntarily detained are suicidal; in fact it is only a minority of them. However, we must worry about the safety of any that might be discharged. Due to the serious conditions from which these patients suffer, there is probably a higher level of suicide among them than within normal psychiatric patients.

We are also concerned about the small number that might be a danger to other people if they were discharged. This is a small number and we do not want to send out the message that we are concerned about 209 people being a danger to the public. This is not so. It is a very small minority of those patients who may be a danger to other people. We must protect those other people, but we must not stigmatise all 209 patients with the idea that they represent a danger to everybody. From the 2001 Act, we know that those patients who are detained involuntarily are admitted because it is in the best interests of the patient that this happens. It is in their long-term well being and chances of recovery that the clinicians decide that these patients should be involuntarily detained.

We have some concerns about the constitutionality of the Bill. If the High Court finds tomorrow that the basis of the woman's detention is unlawful due to an error in the procedures for renewing her detention, how will the enactment of this legislation make her detention lawful until the procedural error is fixed? Article 40 of the Constitution provides a mechanism whereby the legality of a detention can be challenged. It is one of the most important rights in our legal and political system, or in the legal system of any democracy. The State does not have the power to unlawfully detain its citizens. The 1982 case of the State (Aherne) v Cotter demonstrates the importance of this right. In his judgment, Mr. Justice Walsh stated that the application to challenge the legality of the deprivation of someone's personal liberty is enshrined as a constitutional right in respect of which the whole procedure is set out in the Constitution.

The judgment tomorrow may find a flaw in the detention of the patient, which would result in the consequent setting at liberty of the patient herself. There are 209 patients that will be affected by this ruling. If the judge finds for the applicant in the case and the Oireachtas passes this legislation this evening, are we still going to see a rush of applications down to the High Court central office tomorrow afternoon to lodge Article 40 proceedings against the State for their continuing unlawful detention? Is the Minister sure it is within the competence of the Oireachtas to enact legislation to continue the unlawful detention of any person? Is she sure that legislation would rightfully enjoy the presumption of constitutionality? Will the Minister set our minds at rest that she is sure that it is within the competence of the Oireachtas to enact legislation to make lawful retrospectively the otherwise unlawful detention of a patient or any other person?

We have seen examples of rushed legislation in this area before, most recently with the Government's response to the C case, which still raises concerns. I ask the Minister to convince the Opposition that there is no constitutional difficulty arising from this case and that we will not have a situation over the weekend whereby this legislation, that we are rushing through the House, will be found to be unconstitutional. I hope the Minister understands my concerns about this.

In general, the Mental Health Act has worked well in its first year of operation, with 25% fewer involuntary admissions. We must welcome that. It is a serious decision of the Mental Health Commission and its servants to withdraw somebody's freedom of movement. We understand why it has to be done and we also know there are concerns about the 2001 Act. We have repeatedly asked when the necessary amendments to that legislation will be made. What has happened today may be a prompt for the Minister to inform us when she plans to introduce the necessary amendments to the 2001 Act. Hopefully, it will be in the very near future.

It is interesting to note the some 11% of detentions were revoked by the mental health tribunal. In the time remaining, I ask the Minister for information from the HSE concerning proposed cuts in psychiatric services. I appreciate, however, that the Minister may not be able to provide that information this evening. The mental health alliance says the cuts amount to €70 million, but I cannot see where that will come from.

Brendan Howlin (Wexford, Labour)
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The Deputy is straying beyond the terms of the Bill.

Dan Neville (Limerick West, Fine Gael)
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Yes but I do not have this opportunity very often, so I am asking the Minister if we can get general information on this matter.

We have concerns about the rushed legislation and are critical of the fact that a procedural approach by the Mental Health Commission could cause this issue. Our concern is for the patient involved, as well as for the other 208 patients to whom the Minister referred. We have concerns for the safety of the patients and others. It is in the best interests of patients that they should remain in hospital, but we are seriously concerned about the constitutionality of the Bill itself.

Jan O'Sullivan (Limerick East, Labour)
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I wish to share time with Deputy Ó Caoláin.

Brendan Howlin (Wexford, Labour)
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Is that agreed? Agreed.

Jan O'Sullivan (Limerick East, Labour)
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Like Fine Gael, the Labour Party has serious concerns about this legislation. We appreciate the fact that it is urgently required, as the Minister has assured us and therefore we will not stop it from proceeding through the Houses of the Oireachtas. We do so with reluctance, however. As the Minister has acknowledged, we have had very little time in which to obtain any legal advice on the legislation. We were only told about it at lunchtime today and were briefed this afternoon at 2.30 p.m. We are now seeking to respond to it as comprehensively as we can. In addition, we are doing our duty as legislators to protect the public interest and, particularly, to protect vulnerable people. Clearly those concerned in this matter are vulnerable; they are detained against their will in psychiatric institutions and there is a duty to ensure that they are protected in whatever way possible. It is therefore in that spirit that we raise issues concerning the legislation, although we do not seek to obstruct it. We have serious concerns nonetheless.

At our briefing with the Minister, I specifically asked her about the constitutionality of the legislation and whether she had been assured that it complied with the Constitution. She assured me that she had obtained the advice of the Attorney General and that further legal advice had been obtained from another source. Obviously, we must take the Minister's word and assurances on this matter, although we did get our own legal advice, which suggested that there may well be constitutional issues concerning the legislation. There are serious concerns in this regard. Sections 3, 4 and 5 are all predicated on the Minister's conclusion that the retrospective aspect of this legislation will be constitutionally sound. While the Bill deals primarily with the current procedure under which people are detained, the renewal of that procedure within five working days, as proposed in the Bill, will also assume that they are not invalidly detained in the first place. The validity of this legislation is important therefore in terms of future detentions as well, at least as I understand it. Perhaps the Minister will respond to that point.

The other issue I want to raise concerns the fact that the case was considered in the High Court on 15 and 16 October and it was clearly stated that judgment was reserved. That judgment could well have been made before now, even though it has not been. I still do not understand why the Minister's Department was only made aware of this ten days ago, as the Minister told us, which is three days after the case ended. As I understand it, following the C case, Mr. Eddie Sullivan — who also did the report today — did the report on the procedures that were to be put in place in the Attorney General's office when there was any case that might have constitutional implications. Under that new consultation procedure, all legal papers in such cases were to be copied to senior civil servants in the potentially affected Departments. In her reply, will the Minister explain why her Department was not given earlier notice of this matter?

I accept what was explained to us earlier today, that the case turned out in fact to be more significant in constitutional terms than was originally expected. Nevertheless, I would have thought that under the procedures that were put in place in the Attorney General's office, the Department of Health and Children should have been forewarned earlier. We should all have had more time to deal with this urgent legislation.

The Attorney General was a notice party in this case, so his office should have been aware all along of the permutations that were happening in the case. I wonder why this procedure has not been working in this particular case.

The Human Rights Commission was also a notice party. In the brief time available this afternoon, I made a telephone call to the commission, which does not appear to have been asked to give any judgment concerning this case. I would have thought the commission should have been consulted. Under the Human Rights Commission Act 2000, one of its functions is to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights. The people involved in this case clearly need their human rights to be protected. I accept the Minister's point that she is bringing forward this legislation in order to protect them, but nevertheless there are other issues of human rights protection on which I would have thought the Human Rights Commission would have been consulted.

Although the Minister did not say so in the briefing, I think she said subsequently that 99% of the cases were not altered in the clinical review. Will she explain why the figure is 99% and not 100%? Does that 1% refer to somebody in whose case it was in some way decided that the detention was not appropriate? We in the Opposition all have serious concerns about being asked to deal with this legislation in such a short period of time without sufficient time to consult and without sufficient time to consider drafting amendments. I have a draft amendment here which was considered but I will not table it because the whole Bill is predicated on the Attorney General's advice being correct, that this is not unconstitutional. There is little point in putting forward an amendment that would suggest that all other parts of the Act are deemed to be effective if it is found to be unconstitutional in certain parts. The whole Act is tied and is predicated upon it being constitutional. I hope the Minister's advice is correct and that we are not doing something we should not be doing. Normally we would put a timeframe on this kind of legislation and we would insist there would be a time beyond which this legislation would no longer be valid and would have to be reintroduced. However, because it has its own timeframe written into it, we are not going to do this because as I understand, the timeframe is that within five working days, there will be a new order and the Bill will fall and will no longer be valid. I ask the Minister to reassure me on that point in her reply. Those are the main concerns.

I refer to the short notice given to the House. While the case was proceeding and while the focus of the case was turning to something which has now required this urgent legislation, why was there no procedure in place for the Attorney General's office to alert the Minister and her Department to the situation?

I refer to a reply given by the former Taoiseach to the leader of the Labour Party, on 21 November 2007, when he stated, "As Deputy Gilmore is aware, 19 measures were adopted from the Sullivan report to minimise the risk of a recurrence of that serious event". The serious event referred to was the fact that the Attorney General's office was not aware of serious events taking place in a court case. It is important we use the opportunity today to signal that while there was a great deal of publicity at the time that the Attorney General's office was going to reorganise itself and would alert the political system if issues of concern arose in court cases, this does not appear to have been put into effect in this case. For that reason, the House is in the position of rushing through legislation which I hope will be constitutional but I have no guarantee of that. We do not have time to seek proper legal advice and therefore with reluctance the Labour Party will not oppose the legislation.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I am greatly discomfited by the proposition before the House. This Bill comes before the Dáil in what can only be described as extraordinary circumstances. Speaking with my colleagues following the Minister's briefing this afternoon, I cannot recall an instance over my 11 years in this House where legislation was passed in this way in advance of a court case and in anticipation of the outcome of that case.

This Bill is clearly anticipating the outcome of a court case due in literally a matter of hours. As always with such emergency legislation and as other speakers have stated, the Government has the advantage of the advices of the Attorney General and his legal team of experts. On the other hand, I am neither legally trained nor do I have instant access to legal and constitutional experts but this Bill raises major questions for me. I have to ask whether it cuts across the right of access to the courts of this and other citizens in similar circumstances to the woman in question or indeed the right of all citizens. On the face of it, it suggests that it may very well do. If the High Court case is won by the woman in question tomorrow, the Oireachtas will have put in place legislation to nullify the judgment of the court. Where does this place the separation of powers between the Judiciary and the Oireachtas? This legislation would bar the way for others taking a similar course or following on from the judgment, if it is successful, by seeking a similar outcome by way of a habeas corpus application. As other colleagues have asked, what are the constitutional implications of this legislation?

Referring to the principles for the protection of persons with mental illness adopted by the General Assembly of the United Nations on 17 December 1991, which states clearly that every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights, as recognised in the Universal Declaration of Human Rights. Where does all that stand if this legislation is adopted? Most important, what are the implications of this emergency legislation for the rights of people with mental illness? In the very limited time since the Minister's briefing this afternoon at 2.30 p.m. it has not been possible to get to the kernel of the matter nor has all the salient information been shared. How has this situation arisen? It seems extraordinary that this situation should have arisen because the forms used to address these matters do not apparently conform with the requirements under the Mental Health Act 2001.

This matter was not part of the earlier briefing and I did not have prior sight of the article which other elected colleagues had at the briefing meeting. I ask the Minister to please follow me on this. The woman herself states that the only reason she is in the institution where she is currently detained is because the HSE is failing to provide adequate support and accommodation. She has claimed that her doctors believe she would fare best in supported accommodation outside hospital and that she remains detained against her will in the hospital here in Dublin because there is no supported accommodation available for her. This is a huge issue. Obviously what we would like to see is the HSE and the Minister and her Department moving with the same alacrity as she has demonstrated in bringing forward this legislation to provide the particular care that patients such as this woman require. We were told in the course of the briefing that the psychiatrists involved in the assessment have all confirmed that it is in the best interests of the patient concerned that she continue to be detained in the hospital named. Is this the case — because this was not a detail shared?

I would be greatly disturbed if it is the case that this woman is being detained there, not because it is where she is best kept in the view of the clinicians who have made the assessment but because the State has failed to provide the appropriate accommodation and care she requires and that this legislation is forcing a further period of detention on this woman in what is not viewed allegedly — I ask the Minister to clarify — by those who would have the professional wherewithal to make that determination as the alternative accommodation I have described. On a general point, this situation emphasises the need for rights-based disability and mental health legislation and for a root and branch user-led review of mental health services in this State. I hope this experience, at the very least, would prompt all of that to happen. I would appreciate the Minister's responses and hopefully the assurances that the House clearly needs.

Mary Harney (Dublin Mid West, Progressive Democrats)
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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.

Brendan Howlin (Wexford, Labour)
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In accordance with the order of the Dáil, I must put the question, "That the Bill be now read a Second Time." Is that agreed? Agreed.

Also in accordance with a resolution of this day, we now move immediately on to Committee Stage. I advise the House that Third, Fourth and Fifth Stages must be concluded in 30 minutes.