Mental Health (Amendment) Bill 2017: Report and Final Stages

I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment.

Amendment No. 1 is a Government amendment. Amendments Nos. 1 to 4, inclusive, 7 and 9 to 12, inclusive, are related. Amendment No. 3 is consequential on amendment No. 7, amendment No. 4 is consequential on amendment No. 10 and is a physical alternative to amendment No. 3, amendment No. 10 is a logical alternative to amendment No. 7 and a physical alternative to amendment No. 9. Therefore, amendments Nos. 1 to 4, inclusive, 7 and 9 to 12, inclusive, may be discussed together.

Government amendment No. 1:
In page 3, lines 5 to 7, to delete all words from and including "to" where it secondly occurs in line 5 down to and including "patients" in line 7 and substitute "to make further and better provision relating to the treatment of persons".

I thank Members for facilitating Report and Final Stages of the Bill. I will outline the context arising from Committee Stage of the Bill. These amendments have been grouped together as amendments Nos. 7, 9 and 10 relate to section 4 and provide for guiding principles for children. Amendments Nos. 1 to 4, inclusive, are included in this group as the definitions referred to here also relate to terms used in the amendments proposed to section 4. As amendments Nos. 11 and 12 deal with definitions they have also been added to this group. I will start by discussing amendments Nos. 7 and 9, which are Government amendments, and amendment No. 10, which contains an alternative text proposed by Senators Swanick, Ardagh and Wilson.

Section 4 of the 2001 Act is entitled "Best interests" and covers both adults and children. As it is proposed to remove the reference to best interests for adults, we must now reinsert the best interests provision for children in the 2001 Act. In the amendments I am putting forward, I propose to delete the full text of section 4 and replace it with very similar provisions. Deputy Browne had originally proposed to place this text in section 25 of the 2001 Act. As section 25 only applies to involuntary patients and as the Deputy and I want this section to apply to all persons treated under the 2001 Act, we are suggesting instead that this text be added as a new section 4A of the 2001 Act, immediately after the new section entitled "Guiding principles for adults".

While I had been inclined to accept and, indeed, add to Deputy Browne's text, legal concerns were raised with my officials by the Office of the Parliamentary Counsel, OPC. The OPC advised that some of the proposed provisions regarding children may impinge upon the constitutional rights of children and their parents and guardians. It further advised that it is imperative that the Department be satisfied that these provisions correctly address the rights of the various relevant parties and they should dovetail appropriately with all applicable legislation. In particular, the OPC asked that my officials confirm that they were satisfied that the proposed changes would not have any unintended negative effects on child-related legislation across other Departments.

Although my Department supported the amendments from a policy point of view and was unable to identify any obvious negative impacts, I am obliged to pay appropriate attention to the legal concerns raised and may only propose amendments that we are satisfied will not have unintended legal or constitutional consequences. The Government amendment to this section of the Bill, therefore, mirrors the current text of section 4 but proposes deleting references to the rights of the child to be heard having regard to his age and maturity. Senators Ardagh, Swanick and Wilson have proposed amendments that are broader in scope but, given the legal concerns expressed, I propose that the House will agree to Government amendments Nos. 7 and 9 in order to allow the issues raised to be considered more fully.

Regarding Government amendment No. 3 and amendment No. 4 in the names of Senators Swanick, Ardagh and Wilson, the former relates to definitions in the 2001 Act. The Government is proposing to add to the definitions in the Bill and to rephrase the definition of "voluntary patient". Amendment No. 3 adds a definition for the Assisted Decision-Making (Capacity) Act 2015 and one for guiding principles in addition to the rephrased definition in respect of voluntary patients, also to be included in section 2 of the 2001 Act. Amendment No. 4 differs only slightly from the Government's amendment with regard to the definition of "guiding principles". We state that the guiding principles should be construed in accordance with section 4 of the 2001 Act, as my Department is now proposing, that is, guiding principles for adults but retaining best interests for children as per Article 3 of the United Nations Convention on the Rights of the Child. Amendment No. 4 retains a reference to guiding principles in respect of children, so the definition proposed includes a reference not just to section 4 of the Act but also the new proposed section 4A. This is important because if the House decides to accept Government amendments Nos. 7 and 9, the logical consequence is that Senators should also agree to amendment No. 3. On the other hand, if amendment No. 10 is accepted, it follows that Senators should also choose amendment No. 4 because the definition it contains flows directly from the text of amendment No. 10. When the amendments are being put to the House, I ask the Leas-Chathaoirleach to bear this linkage in mind.

The same text has been submitted by both the Government and Senators Swanick, Ardagh and Wilson in amendments Nos. 1 and 2. Both amendments can be accepted.

Before I conclude and in case this gets lost in the technical discussion about accepting or rejecting numbered amendments, I remind Senators of the consequences of amending the definition of "voluntary patient". There is no disagreement on this. The definition in the 2001 Act is inadequate and must be amended to ensure that, in future, a voluntary patient is a person who formally consents to admission and treatment. The reference to consent is missing from the current definition. However, this change cannot proceed without any associated changes being introduced. The suggested definition of "voluntary patient" would immediately result in some people being denied inpatient treatment. Such persons would be those who lack capacity and who, therefore, cannot provide consent. However, while they would need inpatient treatment, they would not be sufficiently mentally ill to warrant admission as involuntary patients. As they lack capacity and cannot consent to treatment, they could not be voluntary patients but, equally, if they do not suffer from a mental disorder within the meaning of section 3 of the Act, they could also not be detained. Such patients are sometimes referred to as the compliant incapacitated. Before any new definition of "voluntary patient" which explicitly refers to consent commences, we must also include lawful measures which ensure that at no stage would the compliant incapacitated be denied treatment.

In this regard, my Department is currently working on the deprivation of liberty safeguards that would be intended to allow persons without capacity to consent to be lawfully admitted to residential care and to psychiatric hospitals for treatment. It is essential that the change of the definition of "voluntary patient" occurs simultaneously with the commencement of provisions relating to deprivation of liberty. Draft heads of a Bill relating to deprivation of liberty safeguards were the subject of a recent public consultation and the views put forward during that consultation are now being considered by a working group based in the Department. I expect that the deprivation of liberty Bill will be presented to the Oireachtas as soon a possible.

Finally, I will move on to amendments Nos. 11 and 12. The Government and Senators Swanick, Ardagh and Wilson have submitted amendments to sections 5 and 6 of the Bill, which seek to delete both sections. At my meeting with Deputy Browne last week I explained that, while he had put forward a reasonable proposal to define consent for the purposes of a voluntary patient, the legal advice available to me is to the effect that consent is a feature of common law. On that basis, including a specific definition in this Bill might have unintended consequences in other legislation which also deals with consent. It is appropriate, therefore, that sections 5 and 6 be deleted and no replacement text is required here.

In summary, I appreciate this is complex and technical. If the Fianna Fáil Senators are not withdrawing their amendments, I am prepared to withdraw the Government amendments Nos. 3, 7 and 9 and, as a result, I will not object to amendments Nos. 4 and 10, which are consequential to the Senators' proposals.

The second group of amendments are amendment Nos. 5 and 6 and if Fianna Fáil Senators are not withdrawing their amendment No. 6, I am prepared to withdraw the Government amendment No. 5 and I will not object to amendment No. 6. I therefore accept amendments Nos. 1, 2, 4, 6, and 10 to 12, inclusive.

Senator Daly and I are tabling these amendments on behalf of Senator Swanick who is unavoidably detained at a committee meeting but hopes to be here later. It is terribly confusing and, not having the Minister's script in front of me, I am finding it difficult, and I have been in this House for quite some time, both as a Member and as Acting Chairman. Can we suspend for a short time? I do not want to agree something that has not been accepted. I had a very brief conversation with the Minister of State and I accept his bona fides but I am not in a position to agree with his proposals until I have had a short period of time to discuss them with him. I ask for a suspension of ten minutes.

It may not be necessary because we are accepting all the Senators' amendments.

They have been agreed.

Some amendments were not accepted and we are trying to get to a compromise.

The Minister of State has said he is agreeing to the amendments.

I will also be withdrawing the other ones.

In the absence of a script, I would like to propose a suspension for ten minutes.

I second that proposal.

Is the Minister of State happy with that?

I am happy to speak to the Senators.

It would be better to clarify it across the floor while we are in session.

My proposal is that, for clarity, we suspend for ten minutes and the motion has been seconded.

Does Senator Warfield agree with that?

Sitting suspended at 2.13 p.m. and resumed at 2.25 p.m.

The amendment has been moved and the Minister of State has spoken. Does Senator Ardagh wish to say a few words?

I thank Deputy James Browne and the representatives of mental health groups who are in the Gallery today. This is the second Fianna Fáil Bill that has gone through this Seanad and I know the Deputy has been working very hard with the different mental health organisations to ensure we have a robust and complete mental health service in the country. I thank the Deputy for that, as well as the other Members in this House who have supported this Bill and these amendments. I thank the Minister of State for his support today and his generosity with the time given to this House on this Bill. I look forward to it passing today.

I thank colleagues for allowing us the time to clarify the changes made in the amendments put forward this afternoon. In particular I thank the Minister of State, Deputy Daly, for his help in that regard. I join my colleague, Senator Ardagh, in congratulating our colleague, Deputy James Browne, on producing the Bill. It has passed through the Lower House and I hope that within a few minutes it will pass through this House as well.

This Bill seeks to amend and extend the Mental Health Act 2001 to improve the provision of mental health services and promote the rights of persons subject to the Mental Health Act 2001. As my colleague has done, I thank the various mental health advocacy groups that we have spoken with over the past number of months and who have contributed in no small way to the Bill coming before the House today.

I thank the Minister of State for clarifying the Government's amendments. As this is mental health month, it is important for the Bill to pass at this time. It is an important matter and it should remain before us every month. I also thank the mental health groups who have lobbied effectively to ensure this is the best Bill possible to represent those who need services and the assistance of the State. I also thank Deputy Browne. This is quite a unique occasion in many ways as since the enactment of the Constitution, only 16 Opposition Members have managed to get a Private Members' Bill through both Houses. We can think of the thousands of Deputies and Senators who have served as public representatives in both Houses, and to be in an august group of just 16 of those who managed to get legislation through is a tribute to Deputy Browne's tenacity and work ethic. I commend him on that. I know we will always disagree on various elements in the amendments but I am glad we have managed to come to some accommodation on the amendments today. I look forward to the passage of the Bill.

I thank the Minister of State for taking on board the amendments. This is a very important matter. I thank all the stakeholders, including Deputy James Browne, for the work in progressing mental health reform. Senator Daly has correctly noted that 16 Bills have passed through the Houses from Opposition Members. In a minority Government, I do not know who is in government or in opposition. Perhaps all the credit for the Bills in this Dáil and Seanad could be given to either the Opposition or the Government. I take on board the Senator's comments.

I was in the Seanad between 2002 and 2007 and I spoke on A Vision for Change many years ago. We welcome the various initiatives in that and much very good work has been done in the mental health service. Often it has been a Cinderella when it comes to funding and provision. We spoke at the time of ring-fencing funding and much work was done. Sometimes the budget can be attacked.

We have to protect mental health services at all times. In my native county of Roscommon, services are unfortunately still reeling from the fallout of that damning report examining Roscommon mental health services. An awful lot of good work has been done, such as the work being done on this important Bill. We have clear problems within existing services concerning the way they are run. This is something that really must be addressed in the short term.

I did say that for every stakeholder here, including politicians, Departments and service providers, the patient must come first. Sometimes health and mental health can become political footballs. When they become political footballs, the patient is sometimes left aside.

I remember a time about three or four years ago when there was a difficulty in Roscommon concerning a serious issue. I went on the radio to call on management and the unions to come together to resolve it. At 6 a.m. my phone started ringing, receiving calls from union members who were coming off work. They were given misinformation from their leaders in the unions. It was wrong and inaccurate. However, for somebody in that profession to ring somebody like myself, when perhaps I could have been in a certain situation, was abuse. In fairness, when I explained to them what I did and did not say, they said that they were extremely sorry. I am just saying that sometimes people need to stand up. Politicians, we-----

I remind Members we are on amendment No. 1.

My apologies. I thought all the amendments were accepted.

No, we are on amendment No. 1. I have yet to put the amendments.

I will keep the rest of my speech for later.

I will also wait until we have worked through the amendments, and if we get them out of the way then I will make a contribution about the Bill as a whole.

Does the Minister of State wish to make a comment in conclusion on amendment No. 1?

Amendment agreed to.
Government amendment No. 2:
In page 3, to delete lines 11 to 14 and substitute the following:
“Definition
1. In this Act “Principal Act” means the Mental Health Act 2001.”.
Amendment agreed to.
Government amendment No. 3:
In page 3, to delete lines 16 to 20 and substitute the following:
“2. Section 2 of the Principal Act is amended, in subsection (1)—
(a) by the insertion of the following definitions:
(i) “ ‘Act of 2015’ means the Assisted Decision-Making (Capacity) Act 2015;
(ii) ‘guiding principles’ shall be construed in accordance with section 4;”,
and
(b) by the substitution of the following definition for the definition of “voluntary patient”:
“ ‘voluntary patient’ means a person who—
(a) has capacity (within the meaning of section 3 of the Act of 2015),
(b) has been admitted to an approved centre, and
(c) has given consent to his or her admission.”.”.
Amendment, by leave, withdrawn.

I move amendment no. 4:

In page 3, lines 16 to 20, to delete all words from and including “by” in line 16 down to and including line 20 and substitute the following:

“by—

(a) the insertion of the following definitions:

(i) “ ‘Act of 2015’ means Assisted Decision-Making (Capacity) Act 2015;

(ii) ‘guiding principles’ shall be construed—

(a) in relation to a person, other than a child, in accordance with section 4,

(b) in relation to a child, in accordance with section 4A.”,

and

(b) the substitution of the following definition for the definition of ‘voluntary patient’:

“ ‘voluntary patient’ means a person who—

(a) has capacity (within the meaning of section 3 of the Act of 2015),

(b) has been admitted to an approved centre, and

(c) has given consent to his or her admission.”.”.

I second the amendment.

Amendment agreed to.
Government amendment No. 5:
In page 3, to delete lines 21 to 31, and in page 4, to delete lines 1 to 11 and substitute the following:
“Guiding principles to apply in respect of adults
3. The Principal Act is amended by the substitution of the following section for section 4:
“4. (1) Where it is proposed to make a decision in respect of a person the subject of a decision under this Act, the principles specified in subsections (2) to (5) (in this Act referred to as the ‘guiding principles’) shall apply in relation to the making of the decision.
(2) In making a decision in respect of a person, the dignity, bodily integrity, privacy and autonomy of the person (including respect for the person’s own understanding of his or her mental health) shall be the primary consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.
(3) Where it is proposed to make a decision in respect of a person, the person shall, so far as is reasonably practicable, be notified of the proposal and entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this section.
(4) It shall be presumed that a person in respect of whom a decision is proposed to be made has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.
(5) A person in respect of whom a decision is proposed to be made shall not be considered as unable to consent to a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.
(6) This section shall not apply to a person who at the time of the making of the decision is a child.
(7) In this section—
‘capacity’ has the same meaning as it has in section 3 of the Act of 2015;
‘decision’ means, in relation to a person, a decision under this Act concerning the care or treatment of the person (including a decision to make an admission order in relation to the person).”.”.
Amendment, by leave, withdrawn.

I ask the Chair to clarify. I thought we were discussing amendments Nos. 1 to 4, inclusive, 7 and 9 to 12, inclusive. Are we going through all the amendments?

We have agreed all of those. They were already discussed with amendment no. 1.

I move amendment No. 6:

In page 3, to delete lines 21 to 31, and in page 4, to delete lines 1 to 11 and substitute the following:

“Guiding Principles to apply in respect of adults

3. The Principal Act is amended by the substitution of the following section for section 4:

“4. (1) Where it is proposed to make a decision in respect of a person the subject of the decision under this Act, the person shall, so far as is reasonably practicable, be notified of the proposal and entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this section.

(2) The principles specified in subsections (3) to (11) (in this Act referred to as the “guiding principles”) shall apply in respect of the making of a decision.

(3) It shall be presumed that a person in respect of whom a decision is being made has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of the Act of 2015.

(4) A person shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.

(5) A person shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.

(6) There shall be no decision taken in respect of a person unless it is necessary to do so having regard to the individual circumstances of that person.

(7) A decision taken in respect of a person shall—

(a) be made in a manner that minimises—

(i) the restriction of the person’s rights, and

(ii) the restriction of the person’s freedom of action,

(b) have due regard to the need to respect the right of the person to dignity, bodily integrity, privacy, autonomy,

(c) be proportionate to the significance and urgency of the matter the subject of the decision, and

(d) have due regard to the need to have access to health services that have as the aim of those services the delivery of the highest attainable standard of mental health as well as the person’s right to his or her own understanding of his or her mental health.

(8) Notwithstanding the generality of subsection (1), in making a decision—

(a) the person in respect of whom the decision concerned is being made shall be permitted, encouraged and facilitated, in so far as is practicable, to participate, or to improve his or her ability to participate, as fully as possible, in the decision,

(b) effect shall be given, in so far as is practicable, to the person’s past and present will and preferences, in so far as that will and those preferences are reasonably ascertainable,

(c) account shall be taken of—

(i) the beliefs and values of the person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors which the person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

(d) unless the person making the decision in respect of the person concerned reasonably considers that it is not appropriate or practicable to do so, he or she shall consider the views of any other person named by the person as a person to be consulted on the matter concerned or any similar matter,

(e) the person making the decision shall act at all times in good faith and for the benefit of the person in respect of whom the decision is being made, and

(f) the person making the decision shall consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant to the making of the decision concerned.

(9) In making a decision, the person making the decision in respect of the person concerned may consider the views of—

(a) any person engaged in caring for the person,

(b) any person who has a bona fide interest in the welfare of the person, or

(c) any other healthcare professionals.

(10) In the case of a decision in respect of a person who lacks capacity, regard shall be had to—

(a) the likelihood of the recovery of the person’s capacity in respect of the matter concerned, and

(b) the urgency of making the decision prior to such recovery.

(11) In making a decision, the person making the decision—

(a) shall not seek to obtain information that is not reasonably required for making a decision,

(b) shall not use information for a purpose other than in relation to a decision, and

(c) shall take reasonable steps to ensure that information—

(i) is kept secure from unauthorised access, use or disclosure, and

(ii) is safely disposed of when he or she believes it is no longer required.

(12) Section 4 shall not apply to a person who at the time of the decision is a child.

(13) In this section—

‘capacity’ has the same meaning as it has in section 3 of the Act of 2015;

‘decision’, means, in relation to a person, a decision under this Act concerning the care or treatment of the person (including a decision to make an admission order in relation to the person).”.”.

I second the amendment.

Amendment agreed to.
Government amendment No. 7:
In page 4, between lines 11 and 12, to insert the following:
“Best interests etc., of child
4. The Principal Act is amended by the insertion of the following section after section 4:
“4A. (1) In making a decision under this Act concerning the care or treatment of a child (including the making of a specific application under section 25(1) and a decision of the Court to make an order under section 25(6) authorising the detention of a child in an approved centre), the best interests of the child shall be the paramount consideration.
(2) Notwithstanding the generality of subsection (1), in making a decision under this Act concerning the care or treatment of a child (including the making of a specific application under section 25(1) and a decision of the Court to make an order under section 25(6) authorising the detention of a child in an approved centre), due regard shall be given to the need to respect the right of the child to dignity, bodily integrity, privacy and autonomy.”.”.
Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 4, between lines 11 and 12, to insert the following:

“Amendment of section 15 of Principal Act

4. Section 15 of the Principal Act is amended by the substitution of the following subsection for subsection (3):

“(3) The period referred to in subsection (1) may be further extended by order made by the consultant psychiatrist concerned for a period not exceeding 6 months beginning on the expiration of the renewal order made by the psychiatrist under subsection (2) and thereafter may be further extended by order made by the psychiatrist for periods each of which does not exceed 6 months (each of which orders is also referred to in this Act as ‘a renewal order’).”.”.

I second the amendment.

I congratulate my Fianna Fáil colleagues and the Deputy who has joined us on their work on this very important Bill. Sinn Féin is supporting the Fianna Fáil amendments. Our amendment is an amendment to section 15 of the principal Act. It seeks to resolve an issue raised by a recent Court of Appeal ruling in the case of AB v. St. Loman’s Hospital. The court ruled that allowing the extension of involuntary detention in a mental health facility by 12 months after a prior extension of six months was a violation of the rights of the patient. The 12-month period was deemed too long to be ordered without a review. The 2015 expert review of the Mental Health Act 2001, which was supported by the coalition Mental Health Reform, identified this issue and called for a reduction. The expert review called for a maximum of nine months, but there is real concern that this would also not be constitutionally acceptable. Patients deserve to have a right to review and to appeal their detention. To say that a patient must be detained for 12 months without review is akin to an admission of defeat, especially when we are seeking to move to a community-based model in line with the A Vision for Change policy. While some patients will need acute and even extended hospital care, this must be done with great care for the rights of the patient and always with a view to discharge and continued care and recovery in an outpatient setting. I call on and urge all Members to support this amendment.

I thank the Senator for the proposed amendment. It has been proposed as a direct result of the important judgment of the Court of Appeal given on 4 May 2018. As Senator Warfield said, this judgment declared that renewal orders by mental health tribunals under section 15(3) of the Mental Health Act 2001, which include both six-month and 12-month orders, breaches Article 40.4.1° of the Constitution. It is important to confirm that this declaration of unconstitutionality by the Court of Appeal stands suspended until 8 November 2018, which allows the necessary time to give full and proper consideration to this complex matter.

While I fully accept that in proposing this amendment, the Senators are trying to be proactive in light of the judgment, I believe that we must first fully understand and agree what exactly is required of us as legislators, to ensure that we can comply with all aspects of the judgment and introduce the appropriate changes in this regard. For example, it appears from our initial engagement with our legal advisers that the decision of the Court of Appeal extends to orders of up to six and 12 months. In such cases, the amendment as proposed will not address the judgment. We also need to carefully consider the comments made in the judgments of both the High Court and the Court of Appeal to the effect that a person should have a further right of review if detained for such a period, and how provision for this might be worded. In addition, the position regarding existing patients needs to be addressed.

The foregoing points all need to be carefully considered and it is for this reason that the court gave the Government six months to remedy the situation. I can confirm that my Department has already undertaken consultation as to next steps and I expect to be able to propose an appropriate way forward in the very short term. We therefore must oppose this amendment, as the amendment as phrased will not answer all the questions raised in the judgment of the Court of Appeal. I stress again to the Senator that in light of the recent court judgment I know where he and the Sinn Féin party are coming from but notwithstanding their good intentions, it is simply unhelpful from a technical and legal point of view to try to address that in this Bill in the short text of this amendment. There are also significant concerns around the six-month issue. As we need to nail that down before we deal with this, unfortunately we cannot support the amendment at this point. If possible, I ask for the amendment to be withdrawn to allow the Oireachtas to engage more fully in this particular issue, which is obviously of huge concern given the court case. That is a matter for the Senators to decide but I request them to withdraw it if appropriate.

Given the delays we have had so often in people accessing appropriate mental health supports and in the roll-out of resources and key areas, there is an opportunity to address this issue now, in this excellent Bill that has been put forward. We have a court judgment. There is no ambiguity in the court judgment and it does not suggest that we need longer periods. It offers no endorsement for the current 12-month period.

As I understand it, the Minister is asking, based on the court judgment, whether even a period of six months is too long. Given that the direction of the court judgment is clear and that it is clear from it that 12 months is not appropriate, we do not have to wait until the last moment to change this. We do not have to wait until November. Realistically, given how long it takes for legislation to come through, I do not believe there will be more amending legislation going through in time for a November deadline, as set by the courts. Therefore, I urge the Minister of State to take the opportunity presented now to take a positive step in the right direction by accepting what I believe is a constructive, legally sound suggestion from Sinn Féin and agreeing to the amendment. If we need to review the six-month period, it can be done afterwards, in the longer term. Let us not arrive at circumstances in November in which we have failed, when given a clear opportunity, to take into account the direction given in terms of constitutional opinion. I have noted when much weaker constitutional concerns have allowed or stymied action. This is a clear ruling constitutionally. I do not see any justification for the Minister of State not taking a step. There is certainly no opinion anywhere from anybody that the period of 12 months will need to be defended. I cannot see the logic in not accepting the amendment at this point.

I support my colleague in her assertion that this will be the only mental health Bill that will go through the Houses in the lifetime of this Government. On average, only 45 to 50 Bills pass through these Houses each year. There is an opportunity to make sure the judgment of the court is reflected in law such that we will not have others going to the courts in individual cases. The reason we make laws here is to prevent confusion over rights and to ensure that those rights are upheld without people having to go to court. The Government has guidance on what it should and should not do but it is important that we provide clarity in legislation on the rights of individuals. There is an opportunity to do that now. If there were an amendment from the Government providing certainty on the court ruling, we would all be discussing it. However, there is not. There is an amendment before us and that is the one we will have to debate and pass.

I am thankful for the opportunity to speak again. I do not believe it does any justice to a Bill on mental health to have a division on an issue as important as this. I appeal to the House in this regard. There has been a ruling by the court and a period of six months has not been given for a reason. It stands suspended. This is not the only opportunity we will have. The Oireachtas deals with legislation every day. I have a responsibility, not an option, to deal with this matter within six months. It is an order of the court. These Houses, not only me, must adhere to it. There are a number of complex issues, however, and these have been addressed in the judgments. Anybody who read the judgment of the Court of Appeal or the previous judgments would recognise the matter is not so simplistic that we can do justice to it today. All I ask is that we, as an Oireachtas, be responsible and allow the time needed. It is not about the here and now. We can amend legislation at any stage and put forward proposals. In the spirit of co-operation and to do justice to Deputy Browne's Bill, I ask for unanimous support and that we work collectively without division. I appeal again to the House to allow me, my officials, the Department and Members to engage constructively. I can give more detail on the complexities arising over this issue. We will have to come back to this. All I can assure the House is that this measure will not address the issue. We will still have to come back to it because there are a number of other issues to be considered. We would be better off doing what is proposed in one go. Ultimately, it is a matter for the Houses.

Excuse me if I am being naive about this amendment. The possibility of a review of someone's detention at six months is important in a holistic sense in terms of reintegration into a community. The detention is not a prison sentence. It is not rocket science to contend that someone should have the status of their health reviewed on an ongoing basis, be it weekly or monthly, never mind after six months. This should not even require legislation. It should be normal procedure to review a patient's mental health status on an ongoing basis but the Minister of State keeps talking about complexities. I wonder why now is not the time for him to outline the complexities associated with a person having his or her detention reviewed independently at six months. What exactly are the complexities involved in ensuring that someone has intervention at the earliest opportunity in their mental healthcare? When someone is discharged from detention, it does not mean they cannot still have ongoing involvement in community services, be it at six months or 12 months. One does not cut off healthcare at that stage. My point is on integration in respect of holistic and community care. We closed institutions in this country and our streets became our asylums and hotels our hostels.

I do not see the complexity in not further institutionalising people for up to 12 months when integration could be allowed for by having an earlier point of contact. Could the Minister of State talk us through why this would not just be a slam dunk? Obviously, it is much better to have an independent review at six months than at 12 months.

I am just reflecting on our engagement with civil society on this. I have a note from Mental Health Reform which reminds us that, over three years ago, the expert group, when reviewing the 2001 Act, indicated that the third renewal order of up to 12 months is too long and recommended that it should be reduced to a period not exceeding six months. Mental Health Reform's note also states that individuals who are currently in long-stay in hospital could end up discharged from regulated inpatient services to unregulated community-based mental health services if the gap in legislation is not addressed within the next six months. As a result, there is an urgency involved. I suggest that now is the time to address this matter. The note to which I refer only reaffirms my commitment to the Sinn Féin amendment. I am happy to put the matter to a vote if needs be.

I respect the wishes of the House if it wants to put this to a vote. I do not want to repeat the points I have already made. As outlined, advice is required on whether orders should refer to a period of three months and not to mention the six months proposed in the amendment.

As I have said, the court judgment raised a number of issues we need to tease out. This matter is complex. It has been the subject of detailed scrutiny in the courts. It is not a matter that we can do justice to here and in respect of which I can answer the questions in the detail required. We may have to examine all aspects. Being more prescriptive, we could be opting for three months whereby one should be entitled to a review within that period.

The only guarantee I can give is that if we go ahead today, we will have to return to this matter. There will be wider acknowledgements with which we will have to deal. It would be more coherent, constructive and clear for everybody, particularly Members, if we dealt with this in one sitting. I respect the will of the Seanad, however. As a member of the Government, I assure Senators, based on my advice, that my stance is not to be unco-operative but to allow me to deal with the complexities of the judgment of the court, which I wholeheartedly support. In this regard, I would prefer if we continued to work together on it. Ultimately, however, it is a the decision for the House.

Amendment put:
The Seanad divided: Tá, 22; Níl, 16.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Conway-Walsh, Rose.
  • Daly, Mark.
  • Daly, Paul.
  • Davitt, Aidan.
  • Devine, Máire.
  • Freeman, Joan.
  • Gallagher, Robbie.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Leyden, Terry.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Coffey, Paudie.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Marie-Louise.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Lynn Ruane and Fintan Warfield; Níl, Senators Gabrielle McFadden and John O'Mahony..
Amendment declared carried.
Government amendment No. 9:
In page 4, to delete lines 12 to 28.
Amendment, by leave, withdrawn.

Amendment No. 10 in the names of Senators Swanick, Ardagh and Wilson arises out of committee proceedings. It has already been discussed with amendment No. 1.

I move amendment No. 10:

In page 4, to delete lines 12 to 28 and substitute the following:

“Guiding principles in respect of children

4. The Principal Act is amended by the insertion of the following section after section 4:

“4A. (1) In making a decision under this Act concerning the care or treatment of a child (including the making of a specific application under section 25(1) and a decision of the Court to make an order under section 25(6) authorising the detention of a child in an approved centre), the best interests of the child shall be the paramount consideration.

(2) Notwithstanding the generality of subsection (1), in making a decision under this Act concerning the care or treatment of a child (including the making of a specific application under section 25(1) and a decision of the Court to make an order under section 25(6) authorising the detention of a child in an approved centre), due regard shall also be given to the following principles (in this Act referred to as ‘guiding principles’), namely the need—

(a) for every child to have access to health services that have as the aim of those services, the delivery of the highest attainable standard of child mental health,

(b) in the case of a child who is capable of forming his or her own views, to consult, where practicable, the child at each stage of diagnosis and treatment and give due weight to—

(i) his or her views, and

(ii) his or her will or preferences,

having regard to the age and maturity of that child,

(c) in so far as is practicable, to provide care and treatment—

(i) in an age-appropriate environment, and

(ii) in close proximity to the child’s home or family, as appropriate,

(d) for the child to receive the least intrusive treatment possible in the least restrictive environment practicable, and

(e) to respect the right of the child to dignity, bodily integrity, privacy and autonomy.”.”.

Amendment agreed to.
Government amendment No. 11:
In page 4, to delete lines 29 to 41.
Amendment agreed to.
Government amendment No. 12:
In page 5, to delete lines 1 to 11.
Amendment agreed to.
Bill, as amended, received for final consideration and passed.
Sitting suspended at 3.05 p.m. and resumed at 4 p.m.