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Minister to draft emergency legislation after court finds part of mental health law is unconstitutional

Under the current law, patients can be detained under renewal orders for periods not exceeding six and 12 months.

Image: Shutterstock/Monkey Business Images

HEALTH MINISTER SIMON Harris sought Cabinet approval yesterday to draft emergency legislation following a Court of Appeal ruling last month which said the detention of patients under renewal orders for six and 12 months is unconstitutional.

In May 2017, the High Court ruled that the involuntary detention of a patient on a 12-month renewal order under the Mental Health Act 2001 was incompatible with the European Convention of Human Rights.

This provision of detention is currently permissible under Section 15 of the Mental Health Act 2001.

Under the law, there are two types of patients.

A voluntary patient, who under the act means “a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order”.

And an involuntary patient,who is defined as a person who has been “involuntarily admitted to an approved centre pursuant to an application under… and detained there on the grounds that he or she is suffering from a mental disorder”.

Court of Appeal ruling

In May 2018, the Court of Appeal ruled that renewal orders allowing for the involuntary detention of patients for periods not exceeding six months and not exceeding 12 months were unconstitutional.

It was ruled as unconstitutional because the patient has no effective means of challenging his or her continued detention before the order expires.

The judge placed a stay on the judgement to allow for the Oireachtas and government to remedy the position and for operational changes to be put in place.

Last month’s judgement now requires emergency legislation to amend the Mental Health Act 2001 to allow for the removal of the section which provides for patients to be involuntarily detained under renewal orders.

Renewal orders

The minister also seeks to make an amendment to the law to provide for renewal orders of a maximum duration not exceeding three months.

The Mental Health Commission has advised government that it would be preferable that the emergency legislation be passed before the summer recess to allow time for the preparation and issue of replacement of renewal orders and associated Mental Health Tribunal hearings.

A person who wishes to fight against their detention in a mental health hospital can appeal their case through a tribunal hearing which is operated by the Mental Health Commission.

Mental Health Reform’s Ray Burke told TheJournal.ie in April that ambiguity over the definition of patients and their rights has been causing difficulties for years, and often results in court cases being taken.

Burke and other mental health advocates have long been calling for the total overhaul of the Mental Health Act 2001.

Health Minister Simon Harris said in a parliamentary reply on the issue that “work is ongoing on this comprehensive updating of our mental health legislation” stating that  the draft heads are expected to be significantly progressed by end of 2018.

Fianna Fáil TD James Browne TD recently had his own Bill passed to make, what he dubbed, some small but important changes to the Mental Health Act.

Browne’s Mental Health Act (Amendment) Bill 2017 seeks to tackle the issues relating to voluntary and involuntary patients. However, he said it should not be the job of the opposition to push for vital changes which the government should be leading on.

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