Peter Groarke: Finding a balance in introducing legislation

Peter Groarke

Peter Groarke, associate solicitor in the healthcare team at Ronan Daly Jermyn, writes on the legislative process.

On 2 October 2018, members of Dáil Éireann discussed the proposed introduction of the Mental Health (Renewal Orders) Bill 2018.

The proposed Bill arose when, in May 2018, the Court of Appeal 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 Dáil 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 3 October 2018, the President signed into law the Mental Health (Renewal Orders) Bill 2018. Crisis avoided? In the short term, yes.

However, the aforementioned Dáil 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 under these two areas of law/life.

The Assisted Decision-Making Capacity Act 2015 has yet to be fully implemented. To date, the only parts enacted have catered for the setting up of the Decision Support Service (DSS) and a working group to establish the code of practice for Advance Healthcare Directives.

In 2017, the Government acknowledged that legislative clarity was required on the issue of deprivation of liberty in residential facilities for older people or those with a disability or mental health issues in order to meet our obligations under the United Nations Convention on the Rights of Persons with Disabilities. To date, the Government has only sought submissions on the draft legislation in relation to the deprivation of liberty safeguards.

But why has there been no progress?

Legislation which requires/envisages financial resources/support structures always seems to move slower to implementation than legislation which does not.

The Assisted Decision-Making Capacity Act 2015 requires a huge support structure to be put in place. Similarly the deprivation of liberty safeguards could involve thousands of court applications for the transitional arrangements for a person who lacks capacity to continue to live in the facility.

So the balance one should seek when introducing legislation – it should be asked of the Government to be honest and forthright when giving a timeframe for implementing/enacting legislation. While none of us can give assurances as to the future, if people are kept informed as to what is happening, expectations can be managed.

  • Peter Groarke is a senior associate at Ronan Daly Jermyn. View his profile here.