Jim Daly (Cork South West, Fine Gael) | Oireachtas source

Go raibh maith agat, a Chathaoirligh. I would like to thank Senator Boyhan for raising this issue, which is important and topical at the moment. The Government and I have noted the important judgment by the Court of Appeal last week that renewal orders by mental health tribunals under section 15(3) of the Mental Health Act 2001 breach Article 40.4.1 of the Constitution. This clearly raises certain questions and these are being examined in detail by my Department, in conjunction with relevant agencies, including the HSE, the Office of the Attorney General, the Office of the Chief State Solicitor and the Mental Health Commission, which has responsibility for the regulation and independent review of admission and renewal orders by mental health tribunals. We are currently awaiting the advice of senior counsel before initiating formal discussions on next steps. The declaration of unconstitutionality by the Court of Appeal stands suspended until 8 November 2018, which allows time to give full and proper consideration to this matter. In summing up his judgment, Mr. Justice Hogan stated that section 15(3) was adjudged to be:

unconstitutional because of the fact that there is no mechanism where by virtue of the Mental Health Act 2001 or otherwise, whereby the patient can seek an independent review of his mental health status within a reasonable lime. The constitutional objection, therefore, is not as such to the fact that the renewal orders in question have lasted for six or even twelve months. It is rather that the renewal order may be renewed for these periods of time without the necessary safeguard of the possibility of an independent review within a timely period.

As of 23 April 2018, there were approximately 78 patients who were the subject of 12 month renewal orders. I acknowledge that this judgment seeks to balance human rights and personal liberty against the need to have regard for the personal welfare and safety of the individual and of the public. The issue of the appropriate length of admission and renewal orders was already being considered by my Department in the context of the ongoing review of the Mental Health Act 2001. Recommendations to shorten the time periods involved are included in the report of the expert group which reviewed the Mental Health Act 2001 and was published in 2015. The broad thrust of the changes recommended by the expert group have been accepted. Work is progressing in the Department on these important amendments. A text of the Bill is to be significantly progressed by the end of 2018.

In conclusion, the declaration of unconstitutionality by the Court of Appeal stands suspended until 8 November 2018, which allows time to give full and proper consideration to this matter.