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

I thank the Cathaoirleach for giving me an opportunity to speak on the Mental Health (Renewal Orders) Bill 2018, which is being presented to the House on foot of a finding that part of the Mental Health Act 2001 is unconstitutional. I am grateful to the House for agreeing to consider this emergency legislation, the urgent need for which arises from the Court of Appeal finding on 3 May last that section 15(3) of the 2001 Act is unconstitutional. The section in question provides for the involuntary detention of patients for periods not exceeding six months and for periods not exceeding 12 months. The court found that the lack of a mechanism for a patient to seek an independent review of his or her detention within a reasonable time means that this section 15(3) breaches Article 40.4.1° of the Constitution, which states that "No citizen shall be deprived of his personal liberty save in accordance with law".

In acknowledging the serious consequences that could result within the mental health system from the Court of Appeal finding, Mr. Justice Hogan placed a stay on the judgment until 8 November 2018 to allow the Oireachtas and the Government to remedy the position and to allow operational changes to be put in place. The Court of Appeal judgment has implications for all patients detained on renewal orders issued under section 15(3) of the 2001 Act. I am advised that at present, approximately 125 such patients are detained in centres throughout the country, including a number in the Central Mental Hospital. Failure to legislate to address this judgment and implement the necessary changes within the timeframe allowed by the court - by 8 November 2018 - would result in the detention of these patients becoming unlawful on the expiry of the stay. Therefore, the purpose of this Bill is to provide a lawful basis for the reception, detention and treatment of people who are detained involuntarily on renewal orders under section 15(3) of the 2001 Act.

The decision to detain a patient involuntarily is a serious one. It is primarily taken in circumstances where a person suffering from a mental disorder, as defined in the Act, presents a danger to himself or herself or, in a small number of cases, to others. Under the Mental Health Act 2001, such a decision can be made only after a registered medical practitioner refers a patient to the clinical director of an approved centre, or a consultant psychiatrist on the staff of the approved centre. If the psychiatrist decides to admit the patient, the patient's case will be reviewed within a 21-day period by an independent psychiatrist appointed by the Mental Health Commission and by a mental health tribunal consisting of a consultant psychiatrist, a lawyer and an independent lay person. If a patient is to be involuntarily detained, a registered medical practitioner, two psychiatrists and a mental health tribunal must all decide that the circumstances of the case are such that detention is warranted.

When it is decided to detain a patient involuntarily, the initial duration of this admission order is for 21 days under section 15(1) of the Mental Health Act 2001. This period may be further extended by a renewal order of up to three months under section 15(2) of the 2001 Act. The safeguards I have outlined for the continued detention of the patient, namely, an examination of the patient by his or her consultant psychiatrist, a further examination by an independent psychiatrist appointed by the Mental Health Commission and examination of the patient's detention by a mental health tribunal, are all carried out.Where the mental health tribunal affirms the order for the patient’s detention, the patient can appeal this decision to the Circuit Court.

The Court of Appeal found that the provisions of section 15(1) and section 15(2) provide a mechanism for a patient to seek an independent review of his or her mental health status within a reasonable time. In 2017, 3,245 of the total of 3,524 admission and renewal orders issued - approximately 92% - were made under these sections of the Act. Currently section 15(3) of the Mental Health Act allows for periods of detention of up to six months and up to 12 months. It was this provision that the Court of Appeal held to be unconstitutional. The court found that it was not, as such, the fact that the renewal orders in question could last for six months or even 12 months that gave rise to this finding but rather that there is not a means for a patient to access a review of his or her mental health status within a reasonable time.

This Bill seeks to amend section 15(3) of the Mental Health Act to provide for repeat renewal orders of a maximum period of six months each, and for a new right for the patient to apply for a review of his or her detention at or after three months from the date the renewal order was made. This review will be carried out by a mental health tribunal under existing structures, which will satisfy itself whether the patient is suffering from a mental disorder. This new right to access a review by a mental health tribunal carries with it a further right of appeal to the Circuit Court in the event that such a tribunal decides to affirm the order.

The Court of Appeal judgment requires a mechanism for a patient to be able to access a timely review of his or her detention but gave some discretion for how this could be achieved. The Department of Health had a policy choice between providing reviews at three-month intervals, shortening the maximum duration of renewal orders to three months, or retaining renewal orders of up to six months' duration and providing for a new right for the patient to apply for a review at or after the three months point of such a renewal order. Effectively, this meant a choice between a mandatory review every three months for all patients or providing for access to a review at the same frequency but leaving the choice to access such a review for the patient to make. Following appropriate consultation, it is considered that providing a new right for the patient or a legal representative to request a review of his or her detention by a mental health tribunal is a more patient-centred approach. The Bill also removes the provision for 12-month renewal orders in its entirety. This had already been intended as part of a wider review of mental health legislation as recommended by the expert group review of the Mental Health Act.

On commencement of the legislation, all patients currently detained under section 15(3) renewal orders, of which there were 124 on 5 September 2018, must be examined within a period of five days by their consultant psychiatrist, who will issue a replacement renewal order if appropriate. A mental health tribunal must review the renewal order and give its decision to affirm or revoke the order within 21 days. This is a very significant operational process, which will require several weeks and must be completed in full before the expiry of the stay on 8 November 2018 to ensure that all patients are lawfully detained at that date.

I will now go through the Bill section by section. It is a short Bill of nine sections, whose purpose is to amend section 15(3) of the Mental Health Act to provide a lawful basis for the reception, detention and treatment of patients detained on renewal orders issued under that section, as I mentioned already. Section 1is an interpretation section that is standard to most Bills. Section 2 is an expenses section that deals with any expenses incurred by the Minister in the administration of the Bill and is likewise standard to most Bills.

Section 3 is a provision that provides for replacing the section 15(3) renewal orders under which patients are currently detained with new orders made under an amended section 15(3). Subsection (1) provides for the patient's consultant psychiatrist to examine him or her within five days or eight days if the Minister permits this in writing of the commencement of the section. Where the consultant psychiatrist is satisfied that the patient continues to suffer from a mental disorder, he or she will make a new renewal order for a maximum duration of six months, which will replace the unexpired renewal order on which the patient was detained before the commencement of the section. Subsection (2) provides that the replacement renewal order is in substitution for and not in addition to the unexpired renewal order. The replacement renewal order takes effect as if it were an order made under section 15(3) and attracts the provisions of sections 16 to 18. These provisions relate to a review of the renewal order by a mental health tribunal, which cease to apply to the unexpired renewal order. Subsection (3) explains what can happen to an unexpired renewal order on commencement of the section; it continues in force until it expires, it is revoked or it is replaced, or the five working days - or, if applicable, eight working days - after commencement expire, whichever happens first.

Section 4 amends section 15 of the 2001 Act by substituting a new section 15(3) for the existing section 15(3). Its purpose is first to provide for repeat renewal orders of a maximum duration of six months. Previously the provision was for a single renewal order of up to six months, followed by repeat renewal orders of a maximum duration of up to 12 months. Second, it provides for a new right for the patient or his or her legal representative to apply to the Mental Health Commission for a review of his or her detention by a mental health tribunal. Third, it provides that the new right of review by a mental health tribunal can be accessed at or after three months from the date the renewal order was made under section 15(3). Fourth, it provides that the new right of review to be carried out by a mental health tribunal is a review of whether the patient is suffering from a mental disorder.

Section 5 is a consequential amendment of section 16 of the 2001 Act to provide for the review as set out in section 4 of this Bill. It provides that, when a consultant psychiatrist is giving a patient notice in writing of a renewal order being made under section 15(3) of more than three months' duration, the patient is also notified that he or she has access to the new right of review. Section 6 is a consequential amendment of section 17 of the 2001 Act to provide for the review as set out in section 4. It allows the Mental Health Commission, on receipt of an application for a new review, to refer that application to a mental health tribunal and for the necessary associated arrangements to be made. Section 7 is again a consequential amendment of section 18 of the 2001 Act to provide for the review as set out in section 4. It maintains the existing provision that a mental health tribunal makes its decision on an admission order or renewal order no later than 21 days of the making of that order. It adds that, in the case of a tribunal carrying out the new review, the tribunal’s decision will be made no later than 21 days after the date the Mental Health Commission received the review application.

Section 8 confirms that several existing rights of the patient under the 2001 Act are unaffected by the changes in the Bill. These are maintaining provisions for discharge under section 28 of the 2001 Act, where the consultant psychiatrist becomes of the view that the patient is no longer suffering from a mental disorder; that any court proceedings which were already in train before the commencement of the legislation are unaffected by the introduction of this new legislation; and that any proceedings relating to an appeal to the Circuit Court under section 19 of the 2001 Act are unaffected by the introduction of this new legislation. Section 9 deals with the Short Title, collective citation, construction and commencement matters. This is a section that is standard to most Bills.

In delivering its judgment, the Court of Appeal stated that the finding of unconstitutionality "demands an immediate and imperative response on the part of the other branches of government, namely, the Oireachtas and the Government". Given the urgency of the situation and the particularly vulnerable cohort of patients affected by this judgment, the support of all parties and Independents will be vital in ensuring the timely commencement of this important legislation. Above all, we have a collective responsibility to always keep the rights, will and preference of the patient to the fore. This is reflected in the strong tradition of co-operation on mental health issues across the membership of the Houses of the Oireachtas. I acknowledge the co-operation and input of all parties in helping me get this far and bringing this legislation to the House. There has been a constructive contribution from the main Opposition parties, particularly Sinn Féin and Fianna Fáil. For all these reasons, I recommend the enactment of this legislation and ask for the support of this House in passing it as presented. I also ask the House, taking into account the particular context and circumstances of this matter, to pass an earlier signature motion allowing the President to sign the legislation earlier than the period normally applying to legislation passed by the Houses.