Joe O'Toole (Independent)

I welcome the Minister to the House. While I appreciate the need for this legislation, I am seriously uneasy about certain aspects of it. Unfortunately, I was unable to listen to the debate in the other House and I apologise if the Minister has dealt with some of the issues I am about to raise.

I expressed concern about section 16 of the Mental Health Act 2001 in terms of the requirement to bring to the attention of the people concerned what exactly they were entitled to and what treatment they would receive. The Minister referred earlier to the habeas corpus section of the Constitution, which is clear enough. It states that no citizen should be deprived of his liberty save in accordance with law, which is clear. The law, therefore, purported to deal with this issue. The law concerned is the Mental Health Act 2001.

We come then to the section of this Bill dealing with discretion. I did not follow the court case and was not aware of it until I heard about it today. I seriously doubt if the point of law is simply about the difference between a week, two weeks, five days or three days. I suspect the point of law is that the court will need to be confirmed in its view and will have to see evidence that the consultant exercised discretion. The only way in which the habeas corpus section of the Constitution could be reflected is by a consultant coming to a conclusion and exercising discretion. Discretion is always contemplated by that section of the Act.

There has been a significant quantum of case law during recent years involving cases that have been successfully taken through judicial review. Various judicial reviews have found that not only do they need to know that discretion has been exercised but also that they need to see evidence that it has been exercised. Under sections 15 and 16 of the Mental Health Act 2001, a consultant is required to have seen a patient five days before a renewal order or order. He or she is then required, within 24 hours of that consultation, to provide the patient with further documentation explaining various things, including the level of treatment to be provided. I am summarising the process given the time available.

I am not concerned about existing legislation and I understand there is a hole which we need to plug. I am concerned, however, about section 3 which states, "An unexpired order shall be deemed valid and always to have been valid", "have been" being the past perfect tense. In other words, we are effectively saying that it might have been a breach of the habeas corpus section of the Constitution but that discretion need not have been exercised or that a consultant need not have made a defined, confined or succinct decision. I do not believe we can do that. We are trying to second guess the Constitution. I do not believe I have articulated the point clearly.

I will put the point again. The Constitution states what the law must do and the law states what we must do. We are here tonight because the law, as interpreted by the courts, may not have been implemented as contemplated. We are now saying it did not need to be implemented. The only reason it needed to be implemented in the first instance was to apply the Constitution. I hope I am making some sense. This is a vicious circle. I am not sure we can do this. I would like to know the Attorney General's view on this as there appears to be a problem in this regard. I do not have any difficulty with what the Minister is trying to do; I accept the need for this legislation. It would have been irresponsible of the Minister not to have introduced it. An issue arises in respect of the exercise of discretion, which does not relate only to the difference between three days, five days or the form being restrictive in terms of the number of choices offered. Evidence will be sought that the consultant reached a conclusion, exercised discretion, formed a judgment and made a decision. It must be shown that all of these steps were followed. I have sore evidence of this having been on the receiving end of it while wearing another hat. The courts were not happy to accept that discretion had been exercised and required evidence to that effect.

In respect of all cases reviewed during the past six years, was there a consultant examination within five days of the order, was the order then signed by the consultant and was each person, at each renewal, given the set of facts within 24 hours, as required by law?