Update on the Mental Health (Renewal Orders) Bill 2018 (Bill 98 of 2018)

Author: Ciara Hanratty and Hannah Unger

October 9, 2018

On 12 September 2018, the government published the Mental Health (Renewal Orders) Bill 2018 (Bill 98 of 2018) (the “Bill”). The purpose of this Bill is 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 2001 (the “Act”).

A.B. -v- The Clinical Director of St. Loman’s Hospital & Ors ([2018] IECA 123 (“AB”))

In May 2018, a key provision under the Act, which governed the involuntary admission of psychiatric patients for up to 12 months, was struck down by the Court of Appeal as unconstitutional.

The case of AB concerned a man in his 30’s with a severe intellectual disability. After the man had recovered from a mental illness, the man was allegedly detained for lengthy periods due to the lack of funding available for supported accommodation in the community.

In not allowing for the review of the man’s detention before the end of the 12 month period, the Court of Appeal held that the State had clearly failed in its duty to vindicate the right to personal liberty contained in article 40.1 of the Constitution. In arriving at its decision, the Court of Appeal also found that involuntary patients who were the subject of 6 month or 12 month renewal orders were unable to seek an independent review of their detention within a “reasonable time” and thus found that s15(3) of the Act was unconstitutional.

If immediately enforced, the ruling would have led to the immediate release of 93 involuntary patients including 15 from the Central Mental Hospital, which cares for patients who require extremely high support. Given the potentially chaotic and catastrophic consequences of the ruling, the Court of Appeal suspended the declaration for six months to 08 November 2018 to allow the Government to come up with a solution.

Legislative Fix
To address this legislative gap, the Government introduced the Bill. Commenting on the Bill, Minister of State, Deputy Jim Daly said the following:

This Bill seeks to amend section 15(3) of the 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, under existing structures, by a mental health tribunal. The tribunal must satisfy itself that 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 Bill has now been passed by Seanad Éireann and Dáil Éireann and has been signed into law by the President. The Mental Health Renewal Orders Act (No 23 of 2018) can be accessed here.

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