Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

The proposed amendment seeks to delete provisions that were made as amendments on Report Stage in the Dáil. These provisions clarify the intersection of the inherent jurisdiction of the High Court and the 2015 Act. It is important to note that these provisions do not create new powers for the High Court.The court possesses a constitutional role as the guardian of constitutional rights and it is not the power of this or any other House to remove that jurisdiction.

Pending the delivery of dedicated legislation on the protection of liberty safeguards, it may be necessary in some rare instances to bring matters regarding detention and treatment before the High Court. The purpose of the provision that I moved on Report Stage is to signal that such applications should only be brought when the authority of the High Court is very much needed to determine a matter in which a person’s liberty might be in question, and also to make it very clear that no decision supporter or person appointed under the 2015 Act has the ability to authorise the deprivation of liberty where that is manifestly not the will or preference of the relevant person. As such, the amendments which were introduced in the Dáil are designed to provide legal clarity and to ensure that the oversight of the High Court is actually working to protect the rights of citizens.

The Department of Health is in the process of preparing draft protection of liberty safeguard legislation but pending the delivery of those legal forms it is necessary to signpost to the High Court in order to protect the rights of relevant persons. Deletion of this provision would introduce procedural uncertainty where urgent care may be required and would not serve to limit the constitutional power of the High Court in this regard, in any event, or applications of necessity to the High Court. Again, neither I nor this House has the power to do that. For that reason, it is right that we have a legislative provision with guidance around it rather than just leaving the existing inherent jurisdiction of the court, without any sort of procedural guidance around it. It was on that basis that the amendment was made in the Dáil.