Commencement Matters

Mental Health Act Review

Tá fáilte romhat, a Aire agus anois an chéad phíosa gnó ó Sheanadóir Victor Boyhan, tá ceithre nóiméad agat anois, le do thoil.

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?

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.

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.

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.

Community Employment Schemes Review

I thank the Minister for taking time out of her busy schedule to deal with this matter. The issue I raise is the community employment scheme and the current rules that apply. The particular one I raise is where someone has reached 66 years of age and he or she is no longer entitled to continue on in the community employment scheme. There is a problem now in community employment schemes around the country. At least seven or eight community associations have contacted me. They have people who are very good but they are retiring. In one case, the person has reached 66 years of age while in other cases it is because the people have fulfilled the three year time period and they are not entitled to renew it because they are under 60 years of age. We are concerned because these are community associations that are providing a very valuable service to the local community in all sorts of ways. The person who had reached 66 years of age was a chef and was providing meals for elderly people in the community a number of days a week but it is not possible to get someone to replace him. Many community associations are not able to get people to replace those who are retiring.

I ask for a review of this position. We are extending the time a person can stay working in the public service after the retirement age but we have not made the same facility available to people who are employed under a community employment scheme. Can a review be undertaken and can we make the necessary amendments to accommodate these voluntary organisations that are providing a very valuable service?

I thank the Senator. He already knows that the retirement arrangements announced last year by Government that affected public service employees have only been introduced to increase the compulsory retirement age from 65 years for certain categories of public servants. The Government also agreed that in advance of the legislation coming into effect, interim arrangements could be introduced for serving public servants, enabling those reaching 65 years of age to remain in place, if they want to, until they reach the age of eligibility for the contributory State pension, which is currently 66 years of age. Our community employment, CE, participants and supervisors are employees of the limited companies for which they work and they receive public funding in the community and the voluntary sector. Therefore, my Department is not the employer of the CE participants or the supervisors. Therefore, such employees are not public sector workers.

In general, eligible participants can remain on CE until the working day before their birthday at which they reach the State pension age, which is currently 66 years, provided they have not exceeded their overall lifetime CE participation limit of six years, or seven years for those in receipt of a qualifying disability linked social welfare payment.

A CE supervisor can remain on a CE scheme until the working day before his or her birthday at which they reach State pension age. The age at which the pension becomes available to a person, as per section 7 of the Social Welfare and Pensions Act 2011 is as follows: 66 years of age for those people born on or before 1 January 1955; 67 years of age for those born on or after 1 January 1955; and 68 years for those born on or after 1 January 1961.

As per the Social Welfare and Pensions Act 2011, the State pension's age will increase to 67 on 1 January 2021 and to 68 on 1 January 2028. As the age limit for participation on a CE scheme is linked to the age at which the State pension becomes available, CE participants and supervisors will be able to remain until the working day before their birthday, at which stage they reach the State pensionable age, provided they have not exceeded their overall lifetime period of participation of six or seven years, respectively.

I refer to the specific case the Senator raised. While I am not in an position to offer an extension to the particular gentleman the Senator is speaking about, I am very concerned that the continuity of the service is maintained in the Senator's area. I would be grateful if he give me the details privately of the person, the scheme and the service being provided.

I have been somewhat frustrated in the last year in this job of not being able to change and relax what I feel are the participation rules within CE. The reason is that I probably naïvely thought I could have a set of rules for the people who are in the activation role within our CE schemes and a different set of rules for participation for people who were probably ideally involved in a social inclusive or public and community service-type role. I started to do an analysis of the over 900 schemes, thinking they would easily slot in to one category or the other. Unfortunately, I have discovered that no one scheme slots into any nice niche category because they all provide a range of both activation and social inclusion.

It is fair to govern an entire CE scheme on the basis of activation rules when they provide such a huge and valuable public service through social inclusion with a very large number of people who would not be able to work or participate in their communities in any other format. I also mention self-esteem, sanity and all the other good, positive mental health-related reasons with allowing someone to continue to contribute in his or her community and society. These are the reasons I feel we should have a separate set of rules that govern the social inclusive part. As the funding for the schemes that comes from the Department of Public Expenditure and Reform is totally based on activation, I am finding it difficult to square that circle but I will not stop until I square that circle.

Be assured that I recognise the huge value our CE schemes offer for a variety of reasons and that there is need for different adjudication for different roles within those CE schemes. I will not stop until I find a way to address that issue.

I thank the Minister. The other scheme I raised is a community organisation that has over 46 acres of community grounds because there are lot of different organisations working there, all on a voluntary basis. The person on community employment supervises the maintenance and does all that work. Now his time is up. He has done his three years and it cannot be extended, as I understand it. The big problem is that the scheme cannot get anyone to replace him. It has tried extremely hard over the last six months to line up someone but it cannot get anyone. The scheme is concerned that it will not have someone employed and it would not have the funding to employ someone directly because everything it does is voluntary.

If they get a grant for €1,000 they will borrow another €5,000 to get the project done so it is really a challenge for community organisations right around the country.

I recognise the difficulty that community employment, CE, schemes are having in filling places, which is why I made the announcement a couple of weeks ago to allow participants of JobPath to participate in CE and Tús. From 1 June, anybody who is currently engaged with JobPath can also apply for CE places or Tús places. I do not think that will solve the problem, however, because I have not had large numbers of people on JobPath banging down my door demanding CE places. We will still have difficulty recruiting people to CE jobs while we are sending away people who want to be on CE. That makes no sense to me whatsoever.

The only commitment I can give the Senator is that I am going to fix this. There is no obvious fix for me right now but I will continue to work until I fix it. I ask the Senator for the name of the person who has come to the end of the three-year service. I will have a look into it for him.

Public Sector Staff Retirements

I have been contacted by a number of public servants over their concerns about the retirement age. They are in good health and are enjoying their job and would love to continue in their job after they reach 65. At the moment, the Department is looking at legislation and reviewing the situation but if these people were to go back into employment in the public service they would have to start on point 1 of the scale again, as if they were new employees. The experience they have built up over the years has to be taken into account and I am concerned that we are losing people with experience from some organisations. When people want to stay on, everything should be done to encourage them and to allow them to stay in employment for a few more years to give something back to the organisations for which they worked.

As the Senator is aware, on December 2017, at the request of the Minister for Finance, Deputy Donohoe, the Government agreed that the compulsory retirement age of most public servants recruited before 1 April 2004 should be increased to age 70. This is the only group of public servants who currently have a compulsory retirement age of lower than 70. The decision arose on foot of a review of the current statutory and operational considerations giving rise to barriers to extended participation in the public service workforce, which was carried out by my Department with public service employers last year.

Primary legislation is required for the changes approved by Government to be implemented. The Attorney General’s office has been asked to prioritise the drafting of the necessary legislation so that the new compulsory retirement age will become effective as soon as possible. The drafting process is under way and the Bill is on the list of priority legislation for publication in the current session. Indeed, I understand that the drafting of the legislation is significantly advanced with an expected publication date, subject to Government approval, of next month. It is not possible to determine the length of time it will take for a Bill to be drafted and pass through both Houses of the Oireachtas, given the need for meticulous drafting, ongoing detailed policy considerations, and the scheduling requirements of the Houses of the Oireachtas. The Bill is, however, being treated as a priority and I know that the Minister intends to bring forward the necessary legislation as soon as possible.

The Minister wrote to the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach earlier this year requesting it to undertake pre-legislative scrutiny on the general scheme of the Bill at an early date. In response, the committee indicated that, while it does not intend to undertake pre-legislative scrutiny on this Bill, it will engage fully on the draft legislation in the context of the formal legislative process. This approach is likely to facilitate passage of the Bill through the Oireachtas and the Minister has welcomed the support of the committee in this regard.

The new compulsory retirement age will not come into effect until the necessary legislation is commenced. In order to make some accommodation for public servants who reach the age of 65 in the period between the Government decision of 5 December and the commencement of the necessary legislation, the Government approved some limited interim arrangements which became effective from the date of the Government decision. The interim arrangements, which have to respect the current statutory position of the compulsory retirement age of 65, will, through "retire and re-hire", enable pre-2004 public servants who reach the age of 65 to remain in employment until they reach the age of eligibility for the State pension contributory, which is currently 66, subject to certain conditions. Details of these interim implementation arrangements have been put in place by the relevant sectors.

I am delighted that this legislation is being prioritised. It is good news but, in the meantime, people want to stay on. I understand that the Minister has put interim measures in place and I would like to find out what they are. It is very unfair to expect someone to go back to point 1 on the scale. People who have given their time and commitment to a job need to be looked after. It is because they love their job that they want to stay on. Perhaps I could talk to the Department about this issue.

I referred to temporary provisions put in place to facilitate public servants, pending the passage of the legislation. The passage of the proposed legislation will, I believe, address any misgivings of public servants regarding the current temporary arrangements. However, those temporary arrangements must respect the current compulsory statutory retirement age of 65. Once the legislation is commenced, public servants who choose to remain beyond the age of 65 will not be in the position of having retired and been re-hired as is currently the case.

It is intended that the new legislation will allow for the retention of public servants who reach the age of 65 following the commencement of the legislation on current terms and conditions. Additional service will count towards pension accrual subject to the statutory maximum of 40 years and pension entitlements will then become payable at the date of retirement. Finally, both the Minister, Deputy Donohoe, and I look forward to securing early passage of the Bill through the Oireachtas and we ask the indulgence of this and the other House for its speedy passage.