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

I thank the Senator for the proposed amendment. It has been proposed as a direct result of the important judgment of the Court of Appeal given on 4 May 2018. As Senator Warfield said, this judgment declared that renewal orders by mental health tribunals under section 15(3) of the Mental Health Act 2001, which include both six-month and 12-month orders, breaches Article 40.4.1° of the Constitution. It is important to confirm that this declaration of unconstitutionality by the Court of Appeal stands suspended until 8 November 2018, which allows the necessary time to give full and proper consideration to this complex matter.

While I fully accept that in proposing this amendment, the Senators are trying to be proactive in light of the judgment, I believe that we must first fully understand and agree what exactly is required of us as legislators, to ensure that we can comply with all aspects of the judgment and introduce the appropriate changes in this regard. For example, it appears from our initial engagement with our legal advisers that the decision of the Court of Appeal extends to orders of up to six and 12 months. In such cases, the amendment as proposed will not address the judgment. We also need to carefully consider the comments made in the judgments of both the High Court and the Court of Appeal to the effect that a person should have a further right of review if detained for such a period, and how provision for this might be worded. In addition, the position regarding existing patients needs to be addressed.

The foregoing points all need to be carefully considered and it is for this reason that the court gave the Government six months to remedy the situation. I can confirm that my Department has already undertaken consultation as to next steps and I expect to be able to propose an appropriate way forward in the very short term. We therefore must oppose this amendment, as the amendment as phrased will not answer all the questions raised in the judgment of the Court of Appeal. I stress again to the Senator that in light of the recent court judgment I know where he and the Sinn Féin party are coming from but notwithstanding their good intentions, it is simply unhelpful from a technical and legal point of view to try to address that in this Bill in the short text of this amendment. There are also significant concerns around the six-month issue. As we need to nail that down before we deal with this, unfortunately we cannot support the amendment at this point. If possible, I ask for the amendment to be withdrawn to allow the Oireachtas to engage more fully in this particular issue, which is obviously of huge concern given the court case. That is a matter for the Senators to decide but I request them to withdraw it if appropriate.