Mary Harney (Dublin Mid West, Progressive Democrats)

I am grateful for the support from Senators. We are not making legal something that is declared illegal. If the court decision tomorrow finds against the Mental Health Commission and we are here tomorrow afternoon or on Monday, that is what we may do. It has not been established that these orders were made illegally.

We are, as a precaution and on the advice of the Attorney General, in advance of the court decision tomorrow, making sure we do not put this group of 209 patients into a vulnerable situation regarding their mental health. Of the 209 patients, 18 are under the care of the St. John of God Brothers, five, including the plaintiff, are under the care of St. Patrick's Hospital in Dublin, one is in Stewards Hospital, and the remainder are under the care of the HSE across 40 different sites.

I am aware of the letter from the Irish College of Psychiatrists. Notwithstanding that letter, I am advised by the HSE that there has been great co-operation from psychiatrists. They came in on bank holiday Monday, as well as Saturday and Sunday, to review these orders and I pay tribute to them. Nothing we do here implies any clinical error on the part of any psychiatrist. It is purely about forms and form filling. We are more than satisfied that over seven days, including Saturday and Sunday, all the individual orders can be reviewed if that is necessary as a result of the decision tomorrow.

Risk equalisation was emergency legislation to close a loophole. The legislation on corporate bodies concerned the fact that many corporate bodies were established by orders or statutory instruments under primary legislation over many years and it affected the Minister for the Environment, Heritage and Local Government and other Ministers. The advice from the Attorney General — he is extraordinarily active and spends 24 hours a day reading legislation to find difficulties for Ministers — was that corporate bodies cannot be established by primary legislation. We came into the Houses to ensure that St. James's Hospital, the Irish Blood Transfusion Board and the National Treatment Purchase Fund, bodies doing an extraordinary amount of work, employing many people and treating thousands of patients, were made legal as quickly as possible. That was the basis on which that legislation was introduced. We have more legislation to enact in that area. This legislation cannot affect this individual plaintiff or any other patient who may have initiated action, although we are not aware of any such patient.

I am satisfied, and the Attorney General has argued in this case, that the consultants have full discretion under section 28 of the Act. I will not read it all here but all the rights prescribed in law, as Senator O'Toole said, are fulfilled. The threshold in Ireland to be detained involuntarily under our modern legislation — which we are very proud of — is really high. Besides the three psychiatrists, everybody has their own lawyer, and a lawyer and layperson sits on the tribunal. Every time an order is made, the process is gone through again. It is a very high threshold and nobody could go through those legal and patient safety hoops without really being seriously ill and requiring to be involuntarily detained.

I do not want to deal with the specifics of the case except to say no clinical view has been advanced that this person is not seriously ill. We may fall down on form filling, which is not part of the 2001 Act. There is no deficiency in that legislation; it is kosher. On the basis of legal advice, what may have happened is that the forms which were brought in by the Mental Health Commission on foot of the legislation may be found faulty tomorrow. It is to deal with such a position that we are bringing forward this legislation.

Senators Fitzgerald, Boyle and others asked about the amendments to the mental health legislation. We intend to bring proposals to the Government this session to amend the Act and update it further on the basis of the 51 recommendations mentioned earlier.

My Department was advised by the Attorney General's office on 10 October of the possible implications of this case. In the other House reference was made to procedures brought in by Eddie Sullivan when the State or any Department is exposed. Those procedures were all complied with in this case. As soon as we became aware of the possible wider implications as a result of the intervention of the judge in the case, it was brought to our attention.

To be fair, when asking what happened between 10 October and now, people must reflect on what was the best action to take. Did we need amending legislation? Outside counsel was consulted and the view was advanced that we could appeal the case if we lost and the patients could be discharged and readmitted. Other possibilities were considered. Although the legislation is coming today in a rushed fashion, the Attorney General and outside counsel have given consideration to this for the past two weeks. It was on the Attorney General's advice that the clinical review took place between last Friday, 24 October, and its completion yesterday.

I believe I have dealt with all the issues. If I have not, I would be happy to deal on Committee Stage with any outstanding matters I may not have taken.