Mental Health (Renewal Orders) Bill 2018: Second and Subsequent Stages

Question proposed: "That the Bill be now read a Second Time."

I welcome the Minister of State, Deputy Jim Daly, to the House.

I thank the Cathaoirleach for giving me an opportunity to speak on the Mental Health (Renewal Orders) Bill 2018, which is being presented to the House on foot of a finding that part of the Mental Health Act 2001 is unconstitutional. I am grateful to the House for agreeing to consider this emergency legislation, the urgent need for which arises from the Court of Appeal finding on 3 May last that section 15(3) of the 2001 Act is unconstitutional. The section in question provides for the involuntary detention of patients for periods not exceeding six months and for periods not exceeding 12 months. The court found that the lack of a mechanism for a patient to seek an independent review of his or her detention within a reasonable time means that this section 15(3) breaches Article 40.4.1° of the Constitution, which states that "No citizen shall be deprived of his personal liberty save in accordance with law".

In acknowledging the serious consequences that could result within the mental health system from the Court of Appeal finding, Mr. Justice Hogan placed a stay on the judgment until 8 November 2018 to allow the Oireachtas and the Government to remedy the position and to allow operational changes to be put in place. The Court of Appeal judgment has implications for all patients detained on renewal orders issued under section 15(3) of the 2001 Act. I am advised that at present, approximately 125 such patients are detained in centres throughout the country, including a number in the Central Mental Hospital. Failure to legislate to address this judgment and implement the necessary changes within the timeframe allowed by the court - by 8 November 2018 - would result in the detention of these patients becoming unlawful on the expiry of the stay. Therefore, the purpose of this Bill is to provide a lawful basis for the reception, detention and treatment of people who are detained involuntarily on renewal orders under section 15(3) of the 2001 Act.

The decision to detain a patient involuntarily is a serious one. It is primarily taken in circumstances where a person suffering from a mental disorder, as defined in the Act, presents a danger to himself or herself or, in a small number of cases, to others. Under the Mental Health Act 2001, such a decision can be made only after a registered medical practitioner refers a patient to the clinical director of an approved centre, or a consultant psychiatrist on the staff of the approved centre. If the psychiatrist decides to admit the patient, the patient's case will be reviewed within a 21-day period by an independent psychiatrist appointed by the Mental Health Commission and by a mental health tribunal consisting of a consultant psychiatrist, a lawyer and an independent lay person. If a patient is to be involuntarily detained, a registered medical practitioner, two psychiatrists and a mental health tribunal must all decide that the circumstances of the case are such that detention is warranted.

When it is decided to detain a patient involuntarily, the initial duration of this admission order is for 21 days under section 15(1) of the Mental Health Act 2001. This period may be further extended by a renewal order of up to three months under section 15(2) of the 2001 Act. The safeguards I have outlined for the continued detention of the patient, namely, an examination of the patient by his or her consultant psychiatrist, a further examination by an independent psychiatrist appointed by the Mental Health Commission and examination of the patient's detention by a mental health tribunal, are all carried out.

Where the mental health tribunal affirms the order for the patient’s detention, the patient can appeal this decision to the Circuit Court.

The Court of Appeal found that the provisions of section 15(1) and section 15(2) provide a mechanism for a patient to seek an independent review of his or her mental health status within a reasonable time. In 2017, 3,245 of the total of 3,524 admission and renewal orders issued - approximately 92% - were made under these sections of the Act. Currently section 15(3) of the Mental Health Act allows for periods of detention of up to six months and up to 12 months. It was this provision that the Court of Appeal held to be unconstitutional. The court found that it was not, as such, the fact that the renewal orders in question could last for six months or even 12 months that gave rise to this finding but rather that there is not a means for a patient to access a review of his or her mental health status within a reasonable time.

This Bill seeks to amend section 15(3) of the Mental Health Act to provide for repeat renewal orders of a maximum period of six months each, and for a new right for the patient to apply for a review of his or her detention at or after three months from the date the renewal order was made. This review will be carried out by a mental health tribunal under existing structures, which will satisfy itself whether the patient is suffering from a mental disorder. This new right to access a review by a mental health tribunal carries with it a further right of appeal to the Circuit Court in the event that such a tribunal decides to affirm the order.

The Court of Appeal judgment requires a mechanism for a patient to be able to access a timely review of his or her detention but gave some discretion for how this could be achieved. The Department of Health had a policy choice between providing reviews at three-month intervals, shortening the maximum duration of renewal orders to three months, or retaining renewal orders of up to six months' duration and providing for a new right for the patient to apply for a review at or after the three months point of such a renewal order. Effectively, this meant a choice between a mandatory review every three months for all patients or providing for access to a review at the same frequency but leaving the choice to access such a review for the patient to make. Following appropriate consultation, it is considered that providing a new right for the patient or a legal representative to request a review of his or her detention by a mental health tribunal is a more patient-centred approach. The Bill also removes the provision for 12-month renewal orders in its entirety. This had already been intended as part of a wider review of mental health legislation as recommended by the expert group review of the Mental Health Act.

On commencement of the legislation, all patients currently detained under section 15(3) renewal orders, of which there were 124 on 5 September 2018, must be examined within a period of five days by their consultant psychiatrist, who will issue a replacement renewal order if appropriate. A mental health tribunal must review the renewal order and give its decision to affirm or revoke the order within 21 days. This is a very significant operational process, which will require several weeks and must be completed in full before the expiry of the stay on 8 November 2018 to ensure that all patients are lawfully detained at that date.

I will now go through the Bill section by section. It is a short Bill of nine sections, whose purpose is to amend section 15(3) of the Mental Health Act to provide a lawful basis for the reception, detention and treatment of patients detained on renewal orders issued under that section, as I mentioned already. Section 1 is an interpretation section that is standard to most Bills. Section 2 is an expenses section that deals with any expenses incurred by the Minister in the administration of the Bill and is likewise standard to most Bills.

Section 3 is a provision that provides for replacing the section 15(3) renewal orders under which patients are currently detained with new orders made under an amended section 15(3). Subsection (1) provides for the patient's consultant psychiatrist to examine him or her within five days or eight days if the Minister permits this in writing of the commencement of the section. Where the consultant psychiatrist is satisfied that the patient continues to suffer from a mental disorder, he or she will make a new renewal order for a maximum duration of six months, which will replace the unexpired renewal order on which the patient was detained before the commencement of the section. Subsection (2) provides that the replacement renewal order is in substitution for and not in addition to the unexpired renewal order. The replacement renewal order takes effect as if it were an order made under section 15(3) and attracts the provisions of sections 16 to 18. These provisions relate to a review of the renewal order by a mental health tribunal, which cease to apply to the unexpired renewal order. Subsection (3) explains what can happen to an unexpired renewal order on commencement of the section; it continues in force until it expires, it is revoked or it is replaced, or the five working days - or, if applicable, eight working days - after commencement expire, whichever happens first.

Section 4 amends section 15 of the 2001 Act by substituting a new section 15(3) for the existing section 15(3). Its purpose is first to provide for repeat renewal orders of a maximum duration of six months. Previously the provision was for a single renewal order of up to six months, followed by repeat renewal orders of a maximum duration of up to 12 months. Second, it provides for a new right for the patient or his or her legal representative to apply to the Mental Health Commission for a review of his or her detention by a mental health tribunal. Third, it provides that the new right of review by a mental health tribunal can be accessed at or after three months from the date the renewal order was made under section 15(3). Fourth, it provides that the new right of review to be carried out by a mental health tribunal is a review of whether the patient is suffering from a mental disorder.

Section 5 is a consequential amendment of section 16 of the 2001 Act to provide for the review as set out in section 4 of this Bill. It provides that, when a consultant psychiatrist is giving a patient notice in writing of a renewal order being made under section 15(3) of more than three months' duration, the patient is also notified that he or she has access to the new right of review. Section 6 is a consequential amendment of section 17 of the 2001 Act to provide for the review as set out in section 4. It allows the Mental Health Commission, on receipt of an application for a new review, to refer that application to a mental health tribunal and for the necessary associated arrangements to be made. Section 7 is again a consequential amendment of section 18 of the 2001 Act to provide for the review as set out in section 4. It maintains the existing provision that a mental health tribunal makes its decision on an admission order or renewal order no later than 21 days of the making of that order. It adds that, in the case of a tribunal carrying out the new review, the tribunal’s decision will be made no later than 21 days after the date the Mental Health Commission received the review application.

Section 8 confirms that several existing rights of the patient under the 2001 Act are unaffected by the changes in the Bill. These are maintaining provisions for discharge under section 28 of the 2001 Act, where the consultant psychiatrist becomes of the view that the patient is no longer suffering from a mental disorder; that any court proceedings which were already in train before the commencement of the legislation are unaffected by the introduction of this new legislation; and that any proceedings relating to an appeal to the Circuit Court under section 19 of the 2001 Act are unaffected by the introduction of this new legislation. Section 9 deals with the Short Title, collective citation, construction and commencement matters. This is a section that is standard to most Bills.

In delivering its judgment, the Court of Appeal stated that the finding of unconstitutionality "demands an immediate and imperative response on the part of the other branches of government, namely, the Oireachtas and the Government". Given the urgency of the situation and the particularly vulnerable cohort of patients affected by this judgment, the support of all parties and Independents will be vital in ensuring the timely commencement of this important legislation. Above all, we have a collective responsibility to always keep the rights, will and preference of the patient to the fore. This is reflected in the strong tradition of co-operation on mental health issues across the membership of the Houses of the Oireachtas. I acknowledge the co-operation and input of all parties in helping me get this far and bringing this legislation to the House. There has been a constructive contribution from the main Opposition parties, particularly Sinn Féin and Fianna Fáil. For all these reasons, I recommend the enactment of this legislation and ask for the support of this House in passing it as presented. I also ask the House, taking into account the particular context and circumstances of this matter, to pass an earlier signature motion allowing the President to sign the legislation earlier than the period normally applying to legislation passed by the Houses.

I am taking this on behalf of my colleague, Senator Swanick, and I welcome the Minister of State, Deputy Jim Daly, to the House. Fianna Fáil will fully support this Bill, which provides a lawful basis for the reception, detention and treatment of persons detained involuntarily on renewal orders under section 15 of the Mental Health Act 2001. However, it is important to say that the rights of mental health patients cannot be meaningfully vindicated in the absence of advocacy services.

This legislation stems from last May’s Court of Appeal ruling that found part of the Mental Health Act to be unconstitutional because it allows detention of an involuntary patient to be extended for up to 12 months without an effective or independent review within a reasonable timeframe. It is welcome that this issue is being addressed but many patients will lack the capacity to know that these rights exist or lack the capacity to act on their rights. In light of the proposed legislation, there is a clear need for greater access to information on how to make a complaint and for proactive advocacy supports for those using the mental health services. This is especially the case for involuntary inpatient users of mental health services. These patients are deprived of their most basic human right, that of their liberty. Appropriate safeguards need to be in place to ensure that any such deprivation of liberty is no more than absolutely necessary, is done in accordance with the law and respects patients' human rights. To achieve this, the Minister needs to ensure that the range and capacity of Ireland’s mental health advocacy services is expanded to meet the needs of people with long-term mental health difficulties. Otherwise, patients' rights are meaningless.

There are three issues which were highlighted by Mental Health Reform and which I would like to seek clarification on. Will all individuals subject to a renewal order receive an automatic tribunal within 21 days to review their detention? Why are individuals subject to only one application to have their detention reviewed? The limitation that individuals cannot request a tribunal until three months of their renewal order has lapsed should be amended. In addition to individuals receiving an automatic tribunal, they should also have the right to request a tribunal at any time over the course of their renewal order. I would be grateful if the Minister of State could comment on those points.

A Mental Health Reform study published in July 2017 also found that only 27% of users of mental health day clinics were fully or mostly confident about raising issues with their psychiatrist. That report also found that two thirds of patients did not know how to make a complaint and that participants were only a little confident in their ability to advocate for themselves. My party colleague and mental health spokesperson, Deputy James Browne, has rightly called for greater access to information on how to make a complaint and for proactive advocacy supports for those using our mental health services. I second that call. I also welcome Deputy Buckley of Sinn Féin to the Gallery. He has been a stalwart in advocating for mental health services, . He, Deputy Browne, and the Minister of State have worked very well together in advocating for those with mental health difficulties.

I know that the Government is very anxious to expedite this emergency legislation. Senator Wilson has rightly said that this has cross-party support. Much work has been done and many parties have come together to make sure we get what is best for the patient. The Bill is a response to the finding by the Court of Appeal in June that section 15(3) of the Mental Health Act 2001 is unconstitutional. The section provides for the involuntary detention of patients for periods not exceeding six months and 12 months. The Court of Appeal's finding was on the basis that there is no effective means for a patient to seek an independent review of his or her detention within a reasonable time. In delivering its judgment, the Court of Appeal said that the finding on its constitutionality demands an immediate and imperative response on the part of the other branches of government, the Oireachtas and the Government. The Court of Appeal placed a stay on its judgment in June until 8 November to allow the Oireachtas and the Government to remedy the position and for operational change for existing patients to be put in place by the Mental Health Commission and the Health Service Executive, HSE. That is why we are here today to expedite this emergency legislation.

On 25 September, 124 people were retained under section 15(3) renewal orders, a number of whom are detained in the Central Mental Hospital. Once this emergency legislation is enacted all patients detained on that date under the section 15(3) renewal orders must be examined by their consultant psychiatrist who will issue a replacement renewal order if appropriate. A mental health tribunal must review the renewal order and give a decision to affirm or revoke the order. This is a very significant operational undertaking which needs approximately four weeks to complete, and it must be completed in full before the expiry of the Court of Appeal's stay on 8 November to ensure that all patients are lawfully detained on that date.

The Department of Health had a policy choice between providing for mandatory review at three monthly intervals by shortening the maximum duration of renewal orders to three months or making a new right to a review an optional one for the patient. Following the appropriate consultation the Department of Health has chosen to provide for a new right for the patient or his or her legal representative to request a review of the detention by a mental health tribunal, an approach considered to be more patient centred. The Bill removes a provision for a 12-month renewal order in its entirety and this had already been intended as part of a wider review of the mental health legislation as recommended by the expert group review of the Mental Health Act 2001. Given the urgency of the situation and the particularly vulnerable cohort of patients who are affected by this judgment, the Government is seeking the support of all parties and Independents which will be necessary to ensure the timely commencement of urgent legislation. I welcome that support today.

I am really encouraged by all this good work in the area of mental health reform and want to pay tribute to all parties who have worked extremely hard on this. All of us must continue to recognise that people suffering from mental health difficulties have the same entitlement to have their voices heard and respected as anybody else. It is necessary to do all we can to protect vulnerable people including those who need inpatient psychiatric care. Sometimes we can be accused of being adversarial but today we are putting the patient ahead of everybody and I hope this Bill will be passed.

I have been here for over two years and in learning how the Oireachtas works, it is great to see that impetus can be given to something that is so urgent. We are often depleted by the slowness of legislation. This Bill is of utmost importance in that the courts have asked that this be done. It is a human and civil rights issue.

In treating mental health we went from the Lunacy Asylums Act 1875 through various lunacy laws to the Mental Health Act 1945 which was the first type of Act to make treatment of people with mental ill health, and especially those with enduring mental ill health, fit for purpose for its time. We attempted to modernise the treatment.

We made significant contributions to the Mental Health Act 2001, trying to understand the Act, its flaws and what we could do to improve on it. As nurses we were delighted to see its implementation in November 2006. We knew there needed to be much more freedom and justice in order for our patients not to live any longer under a draconian cosh and be thought of as hopeless cases who were ignored and put into what we called "back wards", although the technical term was rehabilitation wards, where they faced incarceration, in most cases for the rest of their lives. As young nurses we were beginning to take on board what human rights, freedom, choice and disability involved. We were trying to embrace these and encourage voices to be heard to allow healing with either time or treatment and allow a life to be led; for a patient not to be a lunatic forever.

At the time we were so busy trying to implement this new freedom for our patients that we overlooked the idea that it was okay to rubber-stamp somebody into an asylum for another 12 months, without too much difficulty. We accepted that and it was not questioned. It was a throwback to the time in the 1800s and early 1900s in this country where a relative could put somebody into an asylum where he or she would be incarcerated for the rest of his or her life.

We did it in a different way but we did not question it because there was so much happening, and that is not to excuse ourselves for having overlooked it. The court has been diligent in pointing it out and telling us we need to change. We are in a time where we are looking at our attitudes to disability, mental ill-health, well-being and an inclusive country where each person is valued, where we are all different and where we celebrate that diversity.

I welcome this Bill and the urgency attached to it. There are no hopeless cases in our country and we need to respect each and every person. We have come a long way but we have much further to go. As the Minister of State knows, there is an urgent need for the complete overhaul of the Mental Health Act 2001. Deputy Buckley, who I work closely with, is in the Public Gallery. His advance healthcare directive Bill will modernise this society and make it fit for purpose and make it a place we want to live in and in which we will expect that we are included and are given our human rights. We have the mental health tribunals but that is something for another day. We have the legal representation but that is just there for due process so that the process is carried out; it is not a voice for the patient. We need patient advocacy, education and access to information on how to appeal and tribunals. We need information on what to expect of an appointed solicitor. Unfortunately, in most cases and at great cost, the appointed solicitors' make sure due process is carried out and the boxes are ticked but the voice of the patient is very seldom heard. I welcome and congratulate the Minister of Sate on introducing this Bill speedily.

Having heard the contributions of those here today, I reiterate my thanks, especially to Deputies Buckley and Browne, my colleagues in Dáil Éireann who have worked with me on this every step of the way and who were more than generous in waiving all political interests and advantages, who were clearly very motivated to get this right and who engaged extensively with me from the start.

I cannot guarantee Senator Wilson that the mental health tribunals will be carried out within 21 days but they will be carried out. At the heart of the decision made by the Department of Health in drafting this legislation is that some patients find the tribunals difficult but this puts it in the hands of the patient to decide whether he or she wants a three month review. If it is made mandatory that he or she is reviewed every three months, clinicians will say some patients will find it to be stressful and a negative experience. We do not want to force it on people by way of legislation so that is the reason for the three month option. The reduction of renewal order duration to six months automatically gives additional mandatory reviews for 12 month orders, in addition to the new rights which are there at three months, but they are optional.

As is always the case when mental health is discussed, it is clear it is a topic close to all our hearts. This is especially so when the people concerned are some of the most vulnerable patients in our health system. I thank all the stakeholders who helped in developing the policy underpinning this legislation. I particularly thank the Mental Health Commission for its contribution. I also pay tribute to the Office of the Attorney General and the Office of the Parliamentary Counsel for their assistance in recent months. The programme for mental health is a busy one and I look forward working with members of both Houses on this as we begin the new session.

Question put and agreed to.
Bill reported without amendment, received for final consideration and passed.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.

The Seanad adjourned at 8.40 p.m. until 10.30 a.m on Thursday, 20 September 2018.