THE GOVERNMENT IS  to publish emergency legislation to cover a gap in the law after the Court of Appeal ruled that the involuntary detention of patients under ‘renewal orders’ for six and 12 months at a time is unconstitutional. 

As a result, a total of 124 patients who have been detained under renewal orders will be re-examined by their consultant psychiatrist, who will issue a replacement renewal order if appropriate.

Health Minister Simon Harris received government approval yesterday to publish the new law which will address the court ruling.

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”.
• 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.

The Mental Health (Renewal Orders) Bill will provide a lawful basis for the reception, detention and treatment of persons who are detained involuntarily on renewal orders under section 15 of the Mental Health Act 2001.

The Bill seeks to amend the Mental Health Act 2001 to provide for repeat renewal orders of a maximum period of 6 months each rather than 12 months.

Rights for patients 

The patient is to be afforded new rights to apply for a review of their detention at or after three months from the date the renewal order was made.

The Department of Health had a policy choice between providing for mandatory reviews at three-month intervals by shortening the maximum duration of renewal orders to three months, or to make the right to review an optional one for the patient.

Following consultation, the department has chosen to provide for a new right for the patient or their legal representative to request a review of their detention by a mental health tribunal, which is considered to be a more patient-centred approach.

The Mental Health Commission had 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.

Overhaul of law

Burke and other mental health advocates have long been calling for the total overhaul of the Mental Health Act 2001. An expert group was tasked with reviewing and recommending changes to the law a number of years ago. 

The health minister said work is ongoing on the updating of Ireland’s mental health legislation stating that significant progression should be evident by the end of 2018.

Earlier this year,Fianna Fáil TD James Browne had his private member’s 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.