Ivana Bacik (Independent)

I again thank the Minister of State for indicating he will reconsider this issue before Report Stage and thank other Members for their contributions. In response to Senator Walsh, the issue of delay is a concern. One must also consider the societal considerations, the protection of the public and so on. However, the matters pertaining to the District Court are minor and the difficulty has been the lack of a considered way to deal with such applications before the District Court. It is almost the other problem, that is, too speedy a resolution equally can lead to difficulties, certainly in European convention case law. As I stated, amendment No. 1 will certainly help matters in that it allows psychiatric centres other than the Central Mental Hospital to be used by the District Court for reception, detention, examination and so on. However, an alternative to what is proposed in amendment No. 3 would be to provide more specifically that if the District Court is to retain this jurisdiction, before a section 4(6) order can be made in the court, evidence would have to be heard before admission from a consultant psychiatrist on the staff of whichever designated centre was being directed by the court. It would be the Central Medical Hospital or whatever local psychiatric hospital was being so designated. This would be in keeping with the provisions of DH (a Minor) v. Ireland and others and with European case law. I refer, in particular, to the 1979 case, Winterwerp v. the Netherlands, in which it was provided that a medical recommendation was essential when committing anyone to a psychiatric hospital because objective evidence of a true mental disorder based on objective medical expertise was required to justify the deprivation of liberty. I accept there are provisions dealing with emergency cases under the Mental Health Act. However, the Mental Health Act 2001 was drafted specifically to comply with European Convention on Human Rights case law and Article 5. It also was drafted to comply with United Nations principles for the protection of persons with a mental illness, Article 20 of which provides that involuntary placement, involuntary treatment or the extension thereof should only take place on the basis of an examination by a doctor, having the requisite competence and experience, and in accordance with valid and reliable professional standards. Section 3, as worded, does not require that the court take this evidence. It states it may request evidence.

Perhaps I have strayed somewhat from the contents of amendment No. 3, but when debating it, it is important to be clear about what the District Course is doing. As drafted, section 3 states, "In a case to which paragraph (a) relates, the Court may request evidence of an approved medical officer". If, contrary to my proposal, jurisdiction is to be kept by the District Court, at the very least the court should be required to hear evidence from the approved medical officer by substituting the word "shall" for "may". Preferably, such a medical officer should be from the designated centre being directed by the District Court to become involved in this procedure under the Government's amendment. If the Minister of State does not intend to accept amendment No. 3, I ask him to consider other ways of amending section 3 to ensure a tightening up of the manner in which the District Court deals with this issue. This also applies to the other courts but the particular concern is about potential misuse of the section 4(6) procedure by the District Court, which is partly to do with pressures of time, the volume of work and the fact that these are minor matters being dealt with before the court.