Seanad debates

Thursday, 30 October 2008

Mental Health Bill 2008: Second Stage


Question proposed: "That the Bill be now read a Second Time."

1:00 pm

Photo of Pat MoylanPat Moylan (Fianna Fail)
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I welcome the Minister for Health and Children to the House.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I thank the Cathaoirleach and I am grateful to the House for agreeing at short notice to sit this evening to consider this emergency legislation.

The necessity for legislation arises because a patient in a psychiatric hospital who has been involuntarily detained therein since summer 2007 initiated a judicial review of her case in June 2008. The case was heard during early October and concluded on 17 October. Judgment was reserved. I understand from the Attorney General that the judgment is to be delivered in the High Court at 12.30 p.m. tomorrow. When the case was initiated against the Mental Health Commission, the view was taken that the case's circumstances were particular to the plaintiff only. However, when the case was argued in court, it was brought to light that the person was detained under a provision of the Mental Health Act, namely, a form used by the Mental Health Commission for consultants to renew detention periods. The form, a copy of which I have if Senators are interested, refers to detention periods not exceeding three, six or 12 months. The view has been advanced in the case that this provision does not give enough discretion to consultant psychiatrists to ask for two months and two weeks, three months and three days, etc. The form is prescriptive to not exceeding three, six or 12 months.

If the Mental Health Commission loses the case, there will be implications for up to 209 patients involuntarily detained in 40 HSE and three private hospitals. The decision to involuntarily detain anyone is a serious one. The loss or removal of liberty of any citizen is a serious matter. Under the Mental Health Act 2001, the decision can be made only after a general practitioner refers a patient to a psychiatrist. If the psychiatrist makes a decision 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 a tribunal consisting of a consultant psychiatrist, a lawyer and an independent lay person. To be involuntarily detained, three psychiatrists and a mental health tribunal must decide that the circumstances of one's case are such that one must be involuntarily detained.

Regarding the options open to the Government, this issue came to light on 10 October and my Department was informed by the Attorney General that these issues were being advanced in the case. In the period since, the Attorney General has been taking advice and reflecting on the best course of action in all circumstances. It was initially believed that we could appeal if we lost the case. Alternatively, all 209 patients could be discharged and readmitted if the case is lost tomorrow. From the perspective of patient safety and health, putting individuals through that traumatic experience would be unthinkable. We could wait until next week for the case's outcome and to introduce legislation. However, were even a single patient to go to court this weekend using habeas corpus and be discharged from involuntary detention, the implications would be unthinkable.

People are involuntarily detained for their health interests so that they can receive appropriate medication. One can only be involuntarily detained if one is a danger to oneself in the first instance, to others in the second instance or, if absolutely necessary, to administer medication. The decision to involuntarily detain is taken in a small number of cases, accounting for approximately 7% to 10% of the 3,000 patients in psychiatric hospitals.

Effectively, the legislation states that the detentions cannot be invalid for the sole reason that it was these forms that were used and completed by the consultant psychiatrists in good faith. No question of clinical error is involved. The legislation will lapse after five working days of its enactment. Some five days after the legislation is signed into law by the President, new renewal orders will be made in respect of all of these patients.

Approximately one week ago, the Attorney General advised that, to ensure that robust clinical examination of all of the patients occurs, the renewal notices should be reviewed, a process that has been ongoing since last Friday. I pay tribute to the consultants who worked from Saturday to Tuesday in that regard. All 209 cases have been reviewed. Some 99% of renewal orders were maintained, indicating the robustness of the process.

Issues have arisen with this legislation in regard to the precedents. On several occasions, legislation was enacted in the Oireachtas before the ultimate determination by the courts of the validity or otherwise of a particular challenge. This happened in regard to the Immigration Act, the Aliens Act and several EU directives. There is also a precedent whereby the decisions of a judge who was invalidly appointed were retrospectively made valid.

The case of the person who initiated the proceedings in question cannot be affected by this legislation. The Bill can have no retrospective effect on any patient who has initiated proceedings. We are aware of no case other than the case to be determined tomorrow. However, if it transpires that another case was initiated in recent days, it cannot be affected by the provisions of this legislation. I come reluctantly to the House because, as Minister for Health and Children, I could not contemplate a situation where in the coming days, any one of the 209 patients concerned could be discharged from the care which is clinically necessary for his or her health. Besides the dangers to themselves, there is in a small number of cases — I emphasise that it is only a small number — the possibility that they may be a danger to others in society.

For all these reasons, we recommend the enactment of this legislation. I ask the House to pass an early signature motion allowing the President to sign the legislation immediately and thus forgo the ten-day period normally applying to legislation passed by the Houses.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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I thank the Minister for her contribution and for the briefing she and her officials provided earlier on the need for this legislation. This is obviously the best course to safeguard the health of those persons who have been involuntarily detained and in respect of whom there is uncertainty pending the outcome of the court case tomorrow. It is somewhat unusual to anticipate tomorrow's judgment but, as the Minister observed, precedents exist in this regard where such a course of action was in the interests of certain people.

Is the Minister aware of the letter from the Irish College of Psychiatrists to the Mental Health Commission expressing serious concern about the directives that were issued by the Health Service Executive following the recent High Court case? Concern was expressed that the directive was put in place without any consultation with clinical directors or consultant psychiatrists and that it will prove unworkable in its current form and requires urgently to be revisited. I am pleased to hear from the Minister that the patients concerned have been seen by psychiatrists throughout the State. This was obviously done as an emergency measure. I welcome what has been achieved given that the guidelines were issued only on 24 October, leaving little time for people to become familiar with them and to carry out the assessments.

The review of the mental health legislation presented to the Minister in recent months includes 51 recommendations relating to the Mental Health Acts. While the Minister has come to the Chamber in haste because of what is emerging in the court case in question and the potential adverse effects of that on patients who have been involuntarily detained, there is no denying the need for a revisitation of the Mental Health Acts. Will the Minister outline a timeframe for the type of review suggested in the review report?

I note that we are not dealing today with the mental health legislation but with a procedure that was adopted by the Mental Health Commission. It is somewhat ironic that a fairly minor procedure could lead to catastrophic consequences for the more than 200 patients affected. However, we must bear in mind the potential constitutional implications of what is in effect a procedural point that has been raised in the courts. Will the Minister outline the advice she has received from the Attorney General in regard to the constitutionality of this legislative proposal and whether she is satisfied with that advice? One must invoke the adage that rushed legislation makes bad law. We have seen evidence of that many times. What is at stake here is a person's right to freedom versus a clinician's view of that person's medical need. The Minister referred to this measure as a policy decision as opposed to a legal decision.

Nevertheless, there cannot be a situation where the safety and well-being of more than 200 patients is put at risk owing to an operational or administrative form. We must be practical and put patient safety to the fore. This is not to deny that there are questions to be answered, some of which the Minister dealt with in the Dáil and others which remain to be clarified. When was the Minister first made aware of the case and its possible implications? Will she clarify why two weeks were allowed to elapse before action was taken? Can she guarantee that all involuntarily detained patients who are affected by this legislation will be seen by all necessary clinicians within the five-day period? Will she also offer an assurance that she will meet with the Mental Health Commission to ensure the various forms comply with all legal advice now emerging in regard to best practice and patient safety?

A point was made in an article in The Irish Times about supported accommodation. I hope this is not the issue involved. Nobody should be involuntarily detained simply because suitable supported accommodation is not available. Will the Minister address the points of concern raised by the Irish College of Psychiatrists? Mental health provision was the Cinderella of the health system for a long time. I hope we will continue to focus on the needs of mental health patients in the future.

Photo of Maria CorriganMaria Corrigan (Fianna Fail)
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I welcome the Minister to the House. I support the legislation as necessary to ensure the safety of a small but vulnerable group of people. As the Minister observed, these are people who find themselves involuntarily detained for their own protection, whether as a consequence of being deemed a risk to their own or others' safety or because treatment in a safe environment was deemed to be of benefit to them. The passing of this legislation will prevent disruption to their treatment and any consequential setback to their recovery. As the Minister said, the legislation may prove unnecessary pending the outcome of the court case. I commend her on her proactive approach in avoiding any risk arising to these vulnerable people.

I am pleased to hear that since last Friday, approximately 209 reviews have been completed of the cases of people detained under renewal orders under section 15 of the Mental Health Act in order to confirm the justification of each person's continued detention. This is a considerable undertaking which provides reassurance as to the merits of putting in place this legislation as quickly as possible. I wholeheartedly commend those who undertook this review in such a short period. I acknowledge the Minister's comment that the necessity for this legislation may arise through the layout and contents of a form as opposed to an aspect of clinical practice.

There is always cause for concern when legislation must be taken quickly. I thank the Minister and her officials for the briefing they provided to us all earlier. I also welcome the Minister's assurances that no injustice has been caused to patients and that this emergency legislation to validate the detention of involuntarily detained patients relates to detentions which have been already the subject of a robust process. The legislation provides for five working days to make a replacement renewal order where appropriate for patients. Have the HSE and the private psychiatric hospitals indicated whether they have the capacity to undertake and complete this work? In asking this, I again acknowledge their work since last Friday. However, it is a considerable undertaking in a period of five working days.

Is it intended to introduce new forms to replace the queried forms? Will the new forms be introduced regardless of the outcome of the case? Given the questions that have arisen and the comments made about the forms, new forms would be entirely appropriate to facilitating professional discretion.

This legislation is clearly driven by a desire to protect a vulnerable group of people and, as such, I commend it to the House.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I welcome the Minister to the House. While I appreciate the need for this legislation, I am seriously uneasy about certain aspects of it. Unfortunately, I was unable to listen to the debate in the other House and I apologise if the Minister has dealt with some of the issues I am about to raise.

I expressed concern about section 16 of the Mental Health Act 2001 in terms of the requirement to bring to the attention of the people concerned what exactly they were entitled to and what treatment they would receive. The Minister referred earlier to the habeas corpus section of the Constitution, which is clear enough. It states that no citizen should be deprived of his liberty save in accordance with law, which is clear. The law, therefore, purported to deal with this issue. The law concerned is the Mental Health Act 2001.

We come then to the section of this Bill dealing with discretion. I did not follow the court case and was not aware of it until I heard about it today. I seriously doubt if the point of law is simply about the difference between a week, two weeks, five days or three days. I suspect the point of law is that the court will need to be confirmed in its view and will have to see evidence that the consultant exercised discretion. The only way in which the habeas corpus section of the Constitution could be reflected is by a consultant coming to a conclusion and exercising discretion. Discretion is always contemplated by that section of the Act.

There has been a significant quantum of case law during recent years involving cases that have been successfully taken through judicial review. Various judicial reviews have found that not only do they need to know that discretion has been exercised but also that they need to see evidence that it has been exercised. Under sections 15 and 16 of the Mental Health Act 2001, a consultant is required to have seen a patient five days before a renewal order or order. He or she is then required, within 24 hours of that consultation, to provide the patient with further documentation explaining various things, including the level of treatment to be provided. I am summarising the process given the time available.

I am not concerned about existing legislation and I understand there is a hole which we need to plug. I am concerned, however, about section 3 which states, "An unexpired order shall be deemed valid and always to have been valid", "have been" being the past perfect tense. In other words, we are effectively saying that it might have been a breach of the habeas corpus section of the Constitution but that discretion need not have been exercised or that a consultant need not have made a defined, confined or succinct decision. I do not believe we can do that. We are trying to second guess the Constitution. I do not believe I have articulated the point clearly.

I will put the point again. The Constitution states what the law must do and the law states what we must do. We are here tonight because the law, as interpreted by the courts, may not have been implemented as contemplated. We are now saying it did not need to be implemented. The only reason it needed to be implemented in the first instance was to apply the Constitution. I hope I am making some sense. This is a vicious circle. I am not sure we can do this. I would like to know the Attorney General's view on this as there appears to be a problem in this regard. I do not have any difficulty with what the Minister is trying to do; I accept the need for this legislation. It would have been irresponsible of the Minister not to have introduced it. An issue arises in respect of the exercise of discretion, which does not relate only to the difference between three days, five days or the form being restrictive in terms of the number of choices offered. Evidence will be sought that the consultant reached a conclusion, exercised discretion, formed a judgment and made a decision. It must be shown that all of these steps were followed. I have sore evidence of this having been on the receiving end of it while wearing another hat. The courts were not happy to accept that discretion had been exercised and required evidence to that effect.

In respect of all cases reviewed during the past six years, was there a consultant examination within five days of the order, was the order then signed by the consultant and was each person, at each renewal, given the set of facts within 24 hours, as required by law?

7:00 pm

Photo of Dan BoyleDan Boyle (Green Party)
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The Green Party understands the circumstances surrounding the extraordinary introduction of this Bill and is supportive of it but with reservations. Our mental health legislation is under review and there is a need to complete that review and to introduce large-scale amendments to existing legislation.

We have come a long way from the 19th century legislation which referred to people with mental illness as idiots. However, we still suffer terms that are not in the interests of people who suffer from mental illness. This legislation refers to periods of detention rather than to hospitalisation or care periods. As stated by the Minister in her opening contribution, we are speaking about people deprived of liberty for medical reasons.

The Green Party and I believe that existing legislation is flawed in terms of how it is framed, access to lawyers for the mental health tribunals and the ability and capacity of people to respond to those tribunals. A further difficulty arises in terms of statistics in regard to access to those tribunals and their effectiveness. On those terms, many of the reservations expressed by Senator O'Toole are valid. This means we must return to this debate and quickly. We must be informed also by the many mental health advocates who have expressed concerns about existing legislation and the need for it to be updated.

I understand the difficulty in which the Minister, the Department, the Government and apparatus of State will find themselves if this legislation is not passed this evening. The need potentially to recommit more than 200 people is not something the State should have to consider without having in place proper legislation. The deeper concerns in terms of getting a better balance between the ability of clinicians to define the mental health needs of people who access the service and the legal rights of people who find themselves accessing such services is a balance we have not got right to date. It is a debate to which we will need to return.

I hope the Minister will leave the Chamber tonight having put in place the legislation required to close this particular loophole and will concentrate her mind on the need for a wide-ranging and seriously broad re-interpretation of our mental health legislation.

Photo of Alex WhiteAlex White (Labour)
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The Labour Party will not oppose this Bill. What strikes me initially — the Minister can correct me if I am wrong — is that this is the second time in recent months the Minister has come to this House with legislation that retrospectively validates the legality of particular matters within the remit of the Department of Health and Children. If I am not mistaken, this House dealt previously with legislation relating to health institutions. I am sure the Minister will recall the legislation to which I refer. That legislation sought to validate retrospectively the existence or legality of a range of different institutions and hospitals under the remit of the Department of Health and Children. I did not then, nor do I now, question the merits of doing this. This is the second occasion on which we are being asked to pass legislation retrospectively validating something about which a question has arisen. To be asked to introduce or agree to legislation validating something retrospectively must give us some pause. Legislation, in principle, should always be prospective. If we change a law or introduce a new law we should decide how the law needs to be changed and what kind of regime we want to have in the future.

It goes against the notion of legislating that we are asked to validate something that has already happened. It should only be done in the rarest circumstances. The Minister will probably agree with the proposition that it undermines the fundamental role of legislators if all they are asked to do is give the thumbs up to something after it has happened.

Senator Corrigan asked about future orders and I am sure the Minister will respond. I am interested to hear the change in regime the Minister proposes to introduce to ensure any frailties or questions of the orders or forms are validated retrospectively. What will be done to ensure no issue of that nature arises in the future?

I ask the Minister to address the issue of deeming something to be valid retrospectively. She has been advised by the Attorney General that he is satisfied and she, by extension, is also satisfied that there is no constitutional question on this matter. We are never told the advice of the Attorney General in detail, but I would like more from the Minister than to be told that the Attorney General is satisfied that it is constitutional. As legislators we are entitled, as is the wider community, to more than a thumbs up from the Attorney General that this is all right. How can it be constitutional to deem something illegal as valid retrospectively? Retrospectivity, whether something can be validated and deemed valid after it has occurred, has arisen in a number of cases, including the CC case. I ask the Minister for more detail on the basis upon which she has been advised there is no constitutional question on retrospective validation on a matter such as this.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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I welcome the Minister and commend the Bill to the House. This is a short Bill but it is important legislation. It aims to validate 209 renewal orders which are in force under the Mental Health Act 2001 and to make lawful the detention of those patients. The need for the new Bill has arisen from High Court proceedings concerning a patient detained under section 15 of the 2001 Act. This arose from questions asked by a judge and gave rise to the patient being granted a request for a hearing. That judgment will be released tomorrow and I commend the Minister on being proactive and bringing the legislation to this House today.

The Minister is acting on best clinical, as opposed to legal, advice. It is about patient safety, and the type of patients we are discussing are very vulnerable people who may sometimes be a danger to themselves and others. The form as it exists was not correct. The choice was detention for three, six or 12 months, and a box was ticked to say which period applied. The new form is more patient-focused. It will give a better choice to clinicians and patients as to the length of time their detention will be.

As the Minister pointed out, involuntary detention is not done lightly. There are three psychiatrists and a member of the Mental Health Commission involved. Other accommodations and options are considered. It is probably the last thing that is done and it is done in the interests of the patient and his or her safety.

I welcome the legislation. I thank the Minister for her good briefing, for acting swiftly in bringing this Bill to the House and the Dáil before the judgment is released tomorrow. I thank the hard-working officials from the Department for preparing the Bill and giving good advice to us today. I wish the Bill a speedy passage.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I am grateful for the support from Senators. We are not making legal something that is declared illegal. If the court decision tomorrow finds against the Mental Health Commission and we are here tomorrow afternoon or on Monday, that is what we may do. It has not been established that these orders were made illegally.

We are, as a precaution and on the advice of the Attorney General, in advance of the court decision tomorrow, making sure we do not put this group of 209 patients into a vulnerable situation regarding their mental health. Of the 209 patients, 18 are under the care of the St. John of God Brothers, five, including the plaintiff, are under the care of St. Patrick's Hospital in Dublin, one is in Stewards Hospital, and the remainder are under the care of the HSE across 40 different sites.

I am aware of the letter from the Irish College of Psychiatrists. Notwithstanding that letter, I am advised by the HSE that there has been great co-operation from psychiatrists. They came in on bank holiday Monday, as well as Saturday and Sunday, to review these orders and I pay tribute to them. Nothing we do here implies any clinical error on the part of any psychiatrist. It is purely about forms and form filling. We are more than satisfied that over seven days, including Saturday and Sunday, all the individual orders can be reviewed if that is necessary as a result of the decision tomorrow.

Risk equalisation was emergency legislation to close a loophole. The legislation on corporate bodies concerned the fact that many corporate bodies were established by orders or statutory instruments under primary legislation over many years and it affected the Minister for the Environment, Heritage and Local Government and other Ministers. The advice from the Attorney General — he is extraordinarily active and spends 24 hours a day reading legislation to find difficulties for Ministers — was that corporate bodies cannot be established by primary legislation. We came into the Houses to ensure that St. James's Hospital, the Irish Blood Transfusion Board and the National Treatment Purchase Fund, bodies doing an extraordinary amount of work, employing many people and treating thousands of patients, were made legal as quickly as possible. That was the basis on which that legislation was introduced. We have more legislation to enact in that area. This legislation cannot affect this individual plaintiff or any other patient who may have initiated action, although we are not aware of any such patient.

I am satisfied, and the Attorney General has argued in this case, that the consultants have full discretion under section 28 of the Act. I will not read it all here but all the rights prescribed in law, as Senator O'Toole said, are fulfilled. The threshold in Ireland to be detained involuntarily under our modern legislation — which we are very proud of — is really high. Besides the three psychiatrists, everybody has their own lawyer, and a lawyer and layperson sits on the tribunal. Every time an order is made, the process is gone through again. It is a very high threshold and nobody could go through those legal and patient safety hoops without really being seriously ill and requiring to be involuntarily detained.

I do not want to deal with the specifics of the case except to say no clinical view has been advanced that this person is not seriously ill. We may fall down on form filling, which is not part of the 2001 Act. There is no deficiency in that legislation; it is kosher. On the basis of legal advice, what may have happened is that the forms which were brought in by the Mental Health Commission on foot of the legislation may be found faulty tomorrow. It is to deal with such a position that we are bringing forward this legislation.

Senators Fitzgerald, Boyle and others asked about the amendments to the mental health legislation. We intend to bring proposals to the Government this session to amend the Act and update it further on the basis of the 51 recommendations mentioned earlier.

My Department was advised by the Attorney General's office on 10 October of the possible implications of this case. In the other House reference was made to procedures brought in by Eddie Sullivan when the State or any Department is exposed. Those procedures were all complied with in this case. As soon as we became aware of the possible wider implications as a result of the intervention of the judge in the case, it was brought to our attention.

To be fair, when asking what happened between 10 October and now, people must reflect on what was the best action to take. Did we need amending legislation? Outside counsel was consulted and the view was advanced that we could appeal the case if we lost and the patients could be discharged and readmitted. Other possibilities were considered. Although the legislation is coming today in a rushed fashion, the Attorney General and outside counsel have given consideration to this for the past two weeks. It was on the Attorney General's advice that the clinical review took place between last Friday, 24 October, and its completion yesterday.

I believe I have dealt with all the issues. If I have not, I would be happy to deal on Committee Stage with any outstanding matters I may not have taken.

Question put and agreed to.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Donie CassidyDonie Cassidy (Fianna Fail)
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