Mary Harney (Dublin Mid West, Progressive Democrats)

I thank the Cathaoirleach and I am grateful to the House for agreeing at short notice to sit this evening to consider this emergency legislation.

The necessity for legislation arises because a patient in a psychiatric hospital who has been involuntarily detained therein since summer 2007 initiated a judicial review of her case in June 2008. The case was heard during early October and concluded on 17 October. Judgment was reserved. I understand from the Attorney General that the judgment is to be delivered in the High Court at 12.30 p.m. tomorrow. When the case was initiated against the Mental Health Commission, the view was taken that the case's circumstances were particular to the plaintiff only. However, when the case was argued in court, it was brought to light that the person was detained under a provision of the Mental Health Act, namely, a form used by the Mental Health Commission for consultants to renew detention periods. The form, a copy of which I have if Senators are interested, refers to detention periods not exceeding three, six or 12 months. The view has been advanced in the case that this provision does not give enough discretion to consultant psychiatrists to ask for two months and two weeks, three months and three days, etc. The form is prescriptive to not exceeding three, six or 12 months.

If the Mental Health Commission loses the case, there will be implications for up to 209 patients involuntarily detained in 40 HSE and three private hospitals. The decision to involuntarily detain anyone is a serious one. The loss or removal of liberty of any citizen is a serious matter. Under the Mental Health Act 2001, the decision can be made only after a general practitioner refers a patient to a psychiatrist. 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 a tribunal consisting of a consultant psychiatrist, a lawyer and an independent lay person. To be involuntarily detained, three psychiatrists and a mental health tribunal must decide that the circumstances of one's case are such that one must be involuntarily detained.

Regarding the options open to the Government, this issue came to light on 10 October and my Department was informed by the Attorney General that these issues were being advanced in the case. In the period since, the Attorney General has been taking advice and reflecting on the best course of action in all circumstances. It was initially believed that we could appeal if we lost the case. Alternatively, all 209 patients could be discharged and readmitted if the case is lost tomorrow. From the perspective of patient safety and health, putting individuals through that traumatic experience would be unthinkable. We could wait until next week for the case's outcome and to introduce legislation. However, were even a single patient to go to court this weekend using habeas corpus and be discharged from involuntary detention, the implications would be unthinkable.

People are involuntarily detained for their health interests so that they can receive appropriate medication. One can only be involuntarily detained if one is a danger to oneself in the first instance, to others in the second instance or, if absolutely necessary, to administer medication. The decision to involuntarily detain is taken in a small number of cases, accounting for approximately 7% to 10% of the 3,000 patients in psychiatric hospitals.

Effectively, the legislation states that the detentions cannot be invalid for the sole reason that it was these forms that were used and completed by the consultant psychiatrists in good faith. No question of clinical error is involved. The legislation will lapse after five working days of its enactment. Some five days after the legislation is signed into law by the President, new renewal orders will be made in respect of all of these patients.

Approximately one week ago, the Attorney General advised that, to ensure that robust clinical examination of all of the patients occurs, the renewal notices should be reviewed, a process that has been ongoing since last Friday. I pay tribute to the consultants who worked from Saturday to Tuesday in that regard. All 209 cases have been reviewed. Some 99% of renewal orders were maintained, indicating the robustness of the process.

Issues have arisen with this legislation in regard to the precedents. On several occasions, legislation was enacted in the Oireachtas before the ultimate determination by the courts of the validity or otherwise of a particular challenge. This happened in regard to the Immigration Act, the Aliens Act and several EU directives. There is also a precedent whereby the decisions of a judge who was invalidly appointed were retrospectively made valid.

The case of the person who initiated the proceedings in question cannot be affected by this legislation. The Bill can have no retrospective effect on any patient who has initiated proceedings. We are aware of no case other than the case to be determined tomorrow. However, if it transpires that another case was initiated in recent days, it cannot be affected by the provisions of this legislation. I come reluctantly to the House because, as Minister for Health and Children, I could not contemplate a situation where in the coming days, any one of the 209 patients concerned could be discharged from the care which is clinically necessary for his or her health. Besides the dangers to themselves, there is in a small number of cases — I emphasise that it is only a small number — the possibility that they may be a danger to others in society.

For all these reasons, we recommend the enactment of this legislation. I ask the House to pass an early signature motion allowing the President to sign the legislation immediately and thus forgo the ten-day period normally applying to legislation passed by the Houses.