Denis O'Donovan (Fianna Fail)
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Tá fáilte romhat, a Aire agus anois an chéad phíosa gnó ó Sheanadóir Victor Boyhan, tá ceithre nóiméad agat anois, le do thoil.

Victor Boyhan (Independent)
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I would like to welcome the Minister of State at the Department of Health, Deputy Jim Daly. I raise the need for the Minister to make a statement on the need for legislation governing the long-term detention of people in psychiatric institutions given the recent decision of the Court of Appeal.

I supplied the Minister and the office with material that I will go through very briefly, although I am sure the Minister is up to speed on this issue. Mr. Justice Gerard Hogan found that section 15(3) of the Mental Health Act 2001 was unconstitutional because it allowed for involuntary patients to have their detention extended for up to 12 months without an effective procedure to have their detention independently reviewed within a reasonable time. This is very serious and it was covered by the national media in the last few weeks.

What is more important, and I had a look at the various briefing papers on it this morning, is that Mr. Justice Hogan went on to say that there needs to be an immediate and imperative response from the Oireachtas and the Government to bring in fresh legislation. That is the position. The judge talked about and recommended legislative change, which we should undertake. It is an important finding by the judge in terms of long-term detention of people, particularly people with mental illness and other issues. We need to provide care for people that is appropriate to their needs, having regard to their case history and their decisions and to why they are being detained in the first place and the independent validation of that.

This learned judge has raised a very genuine issue of concern. He has identified that the Oireachtas needs to do something in terms of legislation. I know these things do not happen overnight but I would like to hear what the Government's intention is in this regard?

Jim Daly (Cork South West, Fine Gael)
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Go raibh maith agat, a Chathaoirligh. I would like to thank Senator Boyhan for raising this issue, which is important and topical at the moment. The Government and I have noted the important judgment by the Court of Appeal last week that renewal orders by mental health tribunals under section 15(3) of the Mental Health Act 2001 breach Article 40.4.1 of the Constitution. This clearly raises certain questions and these are being examined in detail by my Department, in conjunction with relevant agencies, including the HSE, the Office of the Attorney General, the Office of the Chief State Solicitor and the Mental Health Commission, which has responsibility for the regulation and independent review of admission and renewal orders by mental health tribunals. We are currently awaiting the advice of senior counsel before initiating formal discussions on next steps. The declaration of unconstitutionality by the Court of Appeal stands suspended until 8 November 2018, which allows time to give full and proper consideration to this matter. In summing up his judgment, Mr. Justice Hogan stated that section 15(3) was adjudged to be:

unconstitutional because of the fact that there is no mechanism where by virtue of the Mental Health Act 2001 or otherwise, whereby the patient can seek an independent review of his mental health status within a reasonable lime. The constitutional objection, therefore, is not as such to the fact that the renewal orders in question have lasted for six or even twelve months. It is rather that the renewal order may be renewed for these periods of time without the necessary safeguard of the possibility of an independent review within a timely period.

As of 23 April 2018, there were approximately 78 patients who were the subject of 12 month renewal orders. I acknowledge that this judgment seeks to balance human rights and personal liberty against the need to have regard for the personal welfare and safety of the individual and of the public. The issue of the appropriate length of admission and renewal orders was already being considered by my Department in the context of the ongoing review of the Mental Health Act 2001. Recommendations to shorten the time periods involved are included in the report of the expert group which reviewed the Mental Health Act 2001 and was published in 2015. The broad thrust of the changes recommended by the expert group have been accepted. Work is progressing in the Department on these important amendments. A text of the Bill is to be significantly progressed by the end of 2018.

In conclusion, the declaration of unconstitutionality by the Court of Appeal stands suspended until 8 November 2018, which allows time to give full and proper consideration to this matter.

Victor Boyhan (Independent)
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I thank the Minister. That is all very reasonable. This may be an issue that is appropriate to one of the committees, perhaps the Joint Committee on the Future of Mental Health Care. I intend to talk to Senator Joan Freeman and I know that committee is meeting today. She might try to put this matter on the committee's schedule.It is important that the courts suspended the declaration of unconstitutionality for six months until 8 November to allow the laws to be enacted. Mr. Justice Gerard Hogan said that he wants to avoid any potential catastrophic consequences as a result of this judgment. He was allowing time. We have time and it would be appropriate to come back at some point to see how it is progressing. It is serious. I know the Minister of State will work on it and, having thought about his response, I intend to seek to have this matter brought up at the appropriate joint committee because it is an issue that needs to be kept live. We do not want to be back here in November asking what we will do now. There is a lead in time to address this but I thank the Minister of State for his engagement in the matter.

Jim Daly (Cork South West, Fine Gael)
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I thank the Senator. As I have said repeatedly, I always appreciate opportunities to engage with this House on any of these issues. As the Senator rightly pointed out, this is a particularly important issue and it requires attention. The Senator is very earnest in wanting to flag it early to ensure we deal with it properly and appropriately. I am more than willing to work with the Senator and with whatever committee. If the Joint Committee on the Future of Mental Health Care decides to discuss this legislation, I will co-operate with it to assist with that and ensure we have a timely response. I share the Senator's appreciation of the judgment from the judge and the responsibility it places on these Houses to deal with that appropriately.