Finding A Balance In Introducing Legislation

Author:Mr Peter Groarke
Profession:Ronan Daly Jermyn

On the 2nd October 2018, members of Dail Eireann discussed the proposed introduction of the Mental Health (Renewal Orders) Bill 2018.

This proposed Bill arose in circumstances where, in May 2018, the Court of Appeal in Ireland ruled that section 15(3) of the Mental Health Act 2001 was unconstitutional.

Section 15(3) of the Act provides for the involuntary detention of patients for periods not exceeding six months and 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, meant that this section breached Article 40.4.1° of the Constitution, which states "No citizen shall be deprived of his personal liberty save in accordance with law".

Acknowledging that this finding had potentially serious consequences for the mental health system, Mr. Justice Hogan placed a stay on the Judgment until 8 November 2018 to afford some time for the Oireachtas and Government to remedy the position and for the necessary operational changes to be put in place. It follows that failure to do so would, somewhat catastrophically, result in the detention of patients becoming unlawful upon the expiry of the stay.

The purpose of the proposed Bill, therefore, was to provide a lawful basis for the reception, detention and treatment of persons who are detained involuntarily on renewal orders under section 15(3) of the Mental Health Act.

The urgency of the situation was highlighted during the Dail debates on the 2nd October 2018, that date leaving just one month before the stay was to be lifted. The Bill was initially published in September 2018 and some expressed concern at the 'rushed' approach now being adopted by the Oireachtas with the deadline fast approaching.

On the 3rd October 2018 the President signed into Law the Mental Health (Renewal Orders) Bill 2018.

Crisis avoided? In the short term, yes.

However, the abovementioned Dail debates also made reference to the Assisted Decision Making (Capacity) Act that was signed into law in December 2015 and the proposed Deprivation of Liberty safeguards. There has been very little, if any, progress in dealing with what is envisaged...

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