EMERGENCY LEGISLATION to close off a potential legal loophole covering the detention of people in psychiatric institutions was rushed through the Dáil and Seanad yesterday and sent for signature by President Mary McAleese.
The move came in advance of a judgment to be delivered in the High Court today in the case of a female patient who is challenging her detention in a private psychiatric hospital in Dublin.
The Government decided on the advice of the Attorney General, Paul Gallagher SC, and the Minister for Health, Mary Harney, to bring forward legislation to cover the situation that might arise if the High Court decides there is a flaw in the forms signed by psychiatrists to detain people involuntarily. It was argued during the current High Court case that the form used by psychiatrists renewing admission periods was too prescriptive as it contained boxes with specific time periods rather than allowing a psychiatrist to specify periods of admission other than three, six or 12 months.
The Minister was advised by the Attorney General yesterday morning that emergency legislation was required to avert a situation where all 209 people who are currently involuntarily detained in public and private psychiatric institutions would be entitled to their freedom if the High Court decision goes against the state today.Ms Harney got the approval of her Cabinet colleagues in the early afternoon to bring the emergency legislation into the Dáil and Seanad.
She then briefed the Opposition on the background to the decision and explained why it would apply retrospectively.
The emergency legislation entitled the Mental Health Bill 2008 provides that irrespective of the forms used, no period of admission will be invalid.
Ms Harney said new forms that did not have a prescriptive pre-printed time element, had already been prepared and would be circulated immediately after the court decision.
The legislation also provides that within five days, all 209 patients affected will be the subject of new renewal orders.
At a briefing for journalists, Ms Harney said that the retrospective element of the legislation was unusual but a similar approach had been adopted before, in regard to EU directives, asylum procedures and a case where a judge was wrongly appointed but whose decisions were retrospectively covered by an emergency law.
She said all the patients involved have been clinically reviewed in the past week and 99 per cent had their admissions upheld. Over the next five days, all the cases would be reviewed again and new forms prepared by the Mental Health Commission signed by their psychiatrists.
The Minister said she was not saying the State would lose the case today, but they were taking action now to prevent confusion.
If the court found that the form used was not satisfactory, any one of the 209 patients could go to the courts and be released.
Ms Harney said the people involved were being kept in hospital because they were a danger to themselves or to others.
She expressed particular concern that if the emergency legislation had not been enacted into law and the High Court decision today went against the State, then 209 people and their families would be put through a traumatic procedure to ensure that they remained in psychiatric care.