While I do not want to delay, I again refer to Article 40 of the Constitution on the legality of a detention if the detention is challenged. As I stated earlier, it is one of the most important rights in our legal and political system. The State does not have the power to detain unlawfully its citizens. Could the Minister address exactly how she sees the constitutionality in light of The State (Aherne) v. Cotter of 1982?
Mental Health Bill 2008: Committee and Remaining Stages.
Sections 1 and 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
I presume dealing with unexpired renewal orders applies in the specific cases at the centre of the court case the result of which is to be announced tomorrow. I again ask because it is important in proceeding stage by stage. I have not opposed the passage of Second Stage and it is not my intention to be obstructive. However, I am anxious to know factually the situation and to know at least as much as we can ascertain from the Minister.
Can she clarify for us that renewal orders have been issued? I understand this woman has been detained since August 2007 over which period four renewal orders have been signed, which means the options clearly were not 12 month in terms of those ticked, as we were informed earlier, by the consultant psychiatrists concerned.
The claim she makes is that the doctors have indicated that the best place for her clinically in their renewal orders was not in the institution where she is presently in Dublin but in supported accommodation. I ask again about her claims, as reported in The Irish Times of Friday, 17 October, that the only reason she is being detained in this hospital is because the HSE is failing to provide adequate supported accommodation. If that is the case and if there are 209 or 230 involuntary detentions in psychiatric institutions, as was confirmed earlier, how many of those should not be in the care of institutions but who are there only because the State and the HSE have jointly failed to provide the appropriate accommodation which the respective psychiatrists have confirmed as the most appropriate? It is important the Minister would clarify the position in this regard.
I gave some latitude on that. It is not particularly germane to the general point.
I am dealing with renewal orders. I appreciate the latitude from the Leas-Cheann Comhairle. I will not ask for more.
I wish to point out my concerns with regard to the constitutional aspect of this issue. Section 3(1) states: "An unexpired renewal order shall be deemed to be valid and always to have been valid". This is of concern because it is retrospective. Whether one can retrospectively take away a person's right to freedom under the Constitution is the nub of the issue and we need to hear again from the Minister in this regard.
I wish to again raise an issue under this section which I raised on Second Stage. The Human Rights Commission was a notice party and presumably was present with the Office of the Attorney General in the court, or it was entitled to be present. Has the Minister sought in any way to get the views of the commission on the legislation, particularly this section?
In response to Deputy Neville, section 7(1) states: "Nothing in this Act shall prejudice any right or entitlement of a patient under or relating to section 28 of the Act of 2001." That is in regard to the effect on this particular patient and, as I said, this legislation cannot affect this patient.
Deputy Ó Caoláin took the view that perhaps this person is only involuntarily detained because there is no alternative suitable accommodation. The criterion under the Mental Health Act 2001 that must be met in order for a person to be involuntarily detained is so serious, because it is a very serious issue to take away a person's liberty and involuntarily detain them in a psychiatric institution, that one could not meet that it if one did not satisfy the very strict basis on which a decision is made if alternative accommodation was more suitable.
As I said earlier, the admitting psychiatrist has to make the decision to admit. This is reviewed within a 21-day period by an independent psychiatrist appointed by the Mental Health Commission. Also, within that 21-day period a tribunal is held consisting of a lawyer, a layperson and a different consultant psychiatrist to review the case. In approximately 10% of cases, the tribunal makes a decision not to involuntarily detain the person and in approximately 90% of cases it confirms the involuntary detention.
Those thresholds and criteria are so serious that there is no question, in our view, that somebody could be involuntarily detained simply because there was no alternative in place. That would be unthinkable, and to take away somebody's liberty on that basis would not be warranted and would not be stood over by the Mental Health Tribunal. This is why, under the Act, the detention must be reviewed constantly for periods not exceeding three months, six months or 12 months. It cannot be a decision that is made today and not considered again for a considerable time.
The Mental Health Commission includes patient advocates in its membership. Schizophrenia Ireland and many other patients groups are represented on the commission, not just those from the clinical psychiatric community. We are very proud of this legislation, which is modern, progressive and in compliance with the European Convention on Human Rights. I am advised the Human Rights Commission was not in attendance during the course of the court hearing, although it was a party to the proceedings.
With regard to the renewal orders, if the case is not lost on these grounds, it may well be found tomorrow that this legislation was completely unnecessary. However, having listened to the advice of the Attorney General, even if one person's health was put at risk by virtue of a decision tomorrow, not to act today was a risk we were not prepared to take in the interests of patient safety. These are the most vulnerable patients in any health system — mentally ill people who must be detained against their will in order to have appropriate medical treatment. Therefore, it was not worth taking the risk even if it only affected one patient.
In any event, if the judgment is that the procedures were faulty, then it is better that we do this today than wait until next week. On balance, that is the right decision. I acknowledge the rushed circumstances in which the Opposition is agreeing to this legislation. Perhaps tomorrow we will know whether it was necessary. In any event, its sell-by date is effectively five working days from its enactment because all of these patients will have to have a new renewal order made in regard to their detention.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
The Minister has put on record that she is satisfied that five working days is adequate to undertake the necessary examination of patients and the necessary procedure to continue legal involuntary detention in the psychiatric hospital. Has she any comment to make on the fact that this occurred and that the procedure introduced by the Mental Health Commission was not up to the standard required? We are now in a position where we must enact the Bill. While it will hopefully not be necessary by tomorrow, it could well be.
With regard to the period of five working days, I presume, if we are counting the clock, that we are talking in real terms about expiry by this day next week, 6 November.
With regard to Deputy Neville's question about carrying out the further replacement renewal orders and the assessment of all of the 200-plus clients, the Minister stated that the Attorney General had pressed for a further examination of all of these patients in advance of the introduction of this legislation. If I remember correctly what the Minister indicated earlier, the Attorney General sought this almost a fortnight ago. How long did it take to carry out the clinical examination in regard to each of the patients concerned? Will this be a proper reassessment of each of the patients or is it simply to go through the motions in order to meet with the detail of the legislation now presenting and the five day requirement? Will this be a genuine clinical re-evaluation of each of the patients concerned, albeit within a very short time following the carrying out of the Attorney General's request in advance of the introduction of this legislation?
If this was flagged by the Attorney General a fortnight ago, it underscores the very irregular way in which we are dealing with this legislation, which was rushed here this evening. As the Minister has already admitted, the dates of all of this go further back than she believed when she gave us a briefing at 2.30 p.m. It is most regrettable that this had not been done in a more thought-out and programmatic way, and that we did not have better time and opportunity to inform ourselves to properly engage with the legislation now presented.
It was this morning that the Attorney General advised me that emergency legislation was desirable in this particular set of circumstances. When we became aware of this case about 10 October, we were made aware of the possibility of a decision of this kind. The view was that in event of this happening, we would perhaps appeal the case. A view was expressed that in this event all of these patients could be discharged and readmitted. Various options were examined and as I stated earlier the trauma of discharge and readmission for these patients and their families was such that it was not a prospect we could have put patients through. This was alongside the considerable administrative difficulties, particularly with regard to the approximately 16 patients in the Central Mental Hospital.
The Attorney General advised a robust clinical review of all of these patients and work began on this last Friday, 24 October, and was completed yesterday. The President will sign the Bill into law tonight or tomorrow morning and five working days from then will bring us to next Thursday or Friday. We believe we have the clinical capacity to complete the review within this time, given that this has happened in any event during the past four or five days because Monday was not a working day as it was a bank holiday. We believe we have the capacity to do so fairly, honestly and openly.
A view was not held on 10 October, or on 17 October when the case concluded, that legislation of this type was required. This view was only advanced in recent days. Outside counsel was consulted and the Attorney General has given considerable consideration to this matter. The potential of what might happen tomorrow is the reason for introducing this legislation. It may well be that tomorrow we will find it was not necessary. The legislation was drafted on the advice of the Attorney General this morning and considered by the Government at approximately 2 p.m.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
Will the Minister clarify what is covered in section 5? Reference is made to expired renewal orders so I presume it concerns people already discharged into the community.
The Deputy is correct. It can also cover a person whose renewal order expired yesterday, today or during the past week. When we began discussing these issues, 230 cases were involved and this has been reduced to approximately 209. Patients involuntarily detained for a period of time are discharged all the time.
Question put and agreed to.
Sections 6 to 8, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I am deeply grateful to the Deputies on the opposite side of the House and to the staff of the Houses for the facilitation of this Bill at extremely short notice.
I thank the staff of the Minister's office for the briefing they gave today. It was necessary and extremely helpful.
I also thank the staff of our political parties for assisting us at short notice.
I thank the staff of the Fine Gael legal and support services for getting to grips with the Bill within a half an hour.
Does Deputy Ó Caoláin wish to compliment his staff?
I do not want to leave out the secretary general or the staff. Heaven forbid.
Question put and agreed to.