Thursday, 30 October 2008
Mental Health Bill 2008: Committee and Remaining Stages
This is the same point I asked about before but I am still not clear on it. The constitutional position is that the law protects habeas corpus. The law required the consultant to exercise discretion. This section states "An unexpired renewal order shall be deemed to be valid and always to have been valid". We are saying effectively that if the fail-safe which the law was required to put in to protect the habeas corpus section of the Constitution was not followed, this is okay. We do not have the power to do this and we are challenging the Constitution on that basis. I am not clear about it.
It is not just the fact of not having enough discretion between three months, six months, nine months or a year. A consultant may not exercise discretion at all and could sign the form without going through the other processes. I asked a question of the Minister which she did not get a chance to answer. It was sections 15 and 16 of the Act to which I was referring rather than section 28. Those sections require the three steps to be taken five days before the order, on the issuing of the order and 24 hours after the order. If those three steps were not carried out in all cases, it could be argued discretion was not discharged and we would be here trying to plug what was not a legal gap but a constitutional gap. We cannot do that.
This is important and I disagree with Senator Feeney. I grew up all my life knowing of cases of people being committed to psychiatric hospitals involuntarily with many outstanding questions. I can remember cases where it was said people were committed incorrectly. When this legislation was being put through, it was done to ensure such actions could not happen in the future.
It is very important legislation and although I do not argue with the actions of the Minister, can she say it "shall be deemed to be valid and always to have been valid"?
Will the Minister confirm that each patient to be reviewed will have access to a mental health tribunal, with most having been before one already? With the new assessment and renewal to be made, will each patient have access to such a tribunal?
It is interesting that the form ran into difficulties because it mentioned three-month, six-month and nine-month periods. I understand the Attorney General advised the consultant psychiatrist looking at the detention of each patient to ensure the detention was lawful by reference to the criteria set out in the Act while also exercising the discretion as to the appropriate duration of the detention, which can be any period as is appropriate up to and including the limits specified in the various sections.
I understand some of the difficulties the Irish College of Psychiatrists are concerned about deal with being able to name a period of time, which is not always possible. Has that been considered by the Minister and will she comment on it?
Article 40 of the Constitution provides a mechanism whereby the legality of a detention is challenged. Will the Minister inform the House further on the Attorney General's advice about Article 40? Is the Minister sure it is within the competence of the Oireachtas to enact legislation to continue the unlawful detention of any person and is she sure such legislation would rightfully have the presumption of constitutionality? Will she comment on the Attorney General's advice about the constitutionality of what we are doing this evening?
I have a quick question related to my earlier statement. In section 3 there is a specification of five working days. Are the Health Service Executive and the three private hospitals satisfied there is capacity within the five working days to complete the necessary work to ensure replacement renewal orders can be put in place? On an aside, I understand there will be a new form but will it be put in place regardless of the case outcome tomorrow?
All of us would be concerned about legislation of this import that must be rushed through. I understand the reasons this is so but we all share the concern that there could be unforeseen deficiencies in the legislation, and the issues which have been raised are important, especially that concern the purported retrospective effect. The effect of this is difficult to predict.
I have a specific question on section 3. Will the weekly review of patients, which is currently the practice where somebody is detained, continue given it is now more likely there will effectively be a fixed date on which orders expire? The current practice is a weekly review, given that orders are effectively indeterminate. I want to ensure patients are not being disadvantaged by this provision.
Perhaps the last point is relevant to some of the other issues raised. Notwithstanding these forms, patients are reviewed all the time and are seen on a weekly basis by their psychiatrists. The argument advanced by the Attorney General in this case is along the lines of section 28 of the Act, that notwithstanding the forms and whether they are deficient, this does not take from the discretion that the consultants exercise under section 28. It is important to make that point. Clearly, I could not advance legislation in the House unless the Attorney General advised it was constitutional. I am not interfering with the rights of this plaintiff. Nothing that is happening in this House tonight can take away from the rights this plaintiff has under the legal proceedings she has initiated, or of any other person who initiates proceedings between now and the time the President signs this legislation this evening.
The Government, as a precautionary measure in the event of this case going down tomorrow, is putting in place legislation that in effect is of temporary duration. Its sell-by date pertains to the aforementioned 209 patients and is five working days from the time it is enacted, which effectively is next Thursday. In addition to the five working days, two non-working days, Saturday and Sunday are available and I am advised by the HSE that this time will be sufficient. I refer to the extraordinary work that was carried out since last Friday by consultant psychiatrists, notwithstanding the bank holiday weekend. This is a holiday period and some of us got a break. However, the consultants came into the 40 HSE sites, that is, the 40 hospitals in which patients are involuntarily detained, and reviewed all those cases.
Senator Fitzgerald asked me a question that I cannot recall.
For all these patients, the procedure, if this case goes down tomorrow, will be that a new renewal order must be made before five working days have elapsed. When that new renewal order is made, an independent psychiatrist must review these patients who also will go before a tribunal at which a different psychiatrist, a lawyer and a layperson will review their cases. This process happens all the time as new renewal orders are made. The Department is very proud of this legislation. It is highly progressive and pro-patient. I remember the dark old days when members of one's family could have one detained involuntarily forever and no one ever reviewed the case. Moreover, one did not have one's lawyer, a tribunal and all the safeguards that now are in place. A total of 90% of renewal orders are upheld by the tribunal. In approximately 10% to 11% of cases, the renewals are set aside. While a high percentage of renewals are confirmed, in a small percentage of cases they are not. Obviously that is for good reasons and one must have no alternative except to involuntarily detain such people, essentially for medical reasons pertaining to their treatment, safety and well-being, before an order to involuntarily detain can be made.
I am unsure whether Senator O'Toole is satisfied. All the procedures in sections 15, 16 and so on——
That is the argument the Attorney General made in this case. I repeat the Government is by no means pessimistic about losing this case tomorrow. I have learned from experience that one case can cause much disquiet and upset and that over this weekend, were this case to go down and were one very sick person to be discharged home or into the community in such circumstances, there would be much concern for that patient and perhaps secondary concerns in a minority of cases for other people. The risk is too high to take, which is the reason the Government is dealing with it in this fashion.
I thank the Minister for explaining the Bill and taking the trouble to go through it. Unfortunately, my group was not invited to the briefing today. While it would have been helpful had we been so invited, this simply was an oversight.
As the Minister sets out on her way home, I should mention that one of the Booker prize nominations this year was Sebastian Barry's novel, The Secret Scripture, which deals with this issue. It is set in County Sligo, where the head of the mental hospital is trying to ensure that someone is allowed to leave and return to the community. The woman involved, who is doing all the writing, is doing her damnedest to prove she is insane and she is very clever. It is a beautiful book in which there is extraordinary tension between the two protagonists. One will not put it down until one is finished reading it.
First, I am grateful to the House for extending its sitting at short notice to deal with this important legislation. I thank everyone for their co-operation. I apologise to the Independent Senators as we overlooked inviting them to the briefing today — it was my fault. I also thank my wonderful officials, the Secretary General and the director of the mental health office in the Department of Health and Children for their outstanding work over a short time. I thank the much-maligned officials from the HSE, who were present to assist me, as well as the staff of the House.
In response to Senator O'Toole, I have a copy of the book on my desk. It was sent to me recently with a covering note explaining what it was about. I wondered whether I should give myself a little break from recent events before starting to read it. However, I intend to read it very shortly and I thank the Senator for the advance promotion, which will encourage me to read it quicker than might otherwise have been the case.