The Government does not intend to appeal a court ruling which found nearly 100 people are being unconstitutionally detained in mental health facilities.
In May, the Court of Appeal struck down a key provision of the Mental Health Act 2001 which governed the involuntary admission of psychiatric patients for up to one year.
Until the ruling, a mental health tribunal could order patients to be involuntarily admitted for three months, six months or 12 months before being reassessed.
The three-judge court found the section relating to six-month and 12-month orders was unconstitutional as there was no procedure for those patients to seek an independent review of their detention within a “reasonable time”.
If implemented immediately the ruling would have led to the immediate release of 93 involuntary patients including 15 from the Central Mental Hospital, which deals with patients who require extremely high support.
However, because of the “potentially chaotic and catastrophic consequences” of the ruling, the court suspended the declaration of unconstitutionality for six months to November 8th to allow the Government to come up with a solution.
The delayed declaration of unconstitutionality is a new mechanism being employed by the courts in cases where an immediate declaration would result in significant disruption.
Mr Justice Gerard Hogan said if patients were suddenly released it "would be likely to have unfortunate consequences for their personal welfare and might well, in some circumstances at least, pose a possible risk to the lives and safety of others".
Legislative fix
A spokeswoman for the Department of Health told The Irish Times the decision would not be appealed to the Supreme Court and the Government was currently attempting to find a legislative fix before the November deadline.
“It is the intention of the Department of Health to have new legislation in place before November 8th in response to the finding of unconstitutionality of section 15(3) of the Mental Health Act 2001 by the Court of Appeal,” she said.
"All relevant stakeholders including the Mental Health Commission have been asked to make preparations for changes that will be required as a result of this judgment."
The problem with the section had been identified previously in a 2015 expert review of the act. The expert group received several submissions that a 12-month detention period was too long and it should be reduced to a maximum of nine months.
After deliberating, the group reported there was “merit in limiting the maximum time period for which renewal orders can be made to six months”.
Shortly after the court’s ruling in May, Sinn Féin tabled an amendment in the Seanad to address the issue by reducing the maximum detention period. However, it withdrew the amendment at the request of the Government, which said it would not address the problem identified by the Court of Appeal.
The court’s ruling related to the case of a severely intellectually-disabled man in his 30s who was allegedly detained for lengthy periods after he had recovered from a mental illness because there was no 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 months the State had clearly failed in its duty to vindicate the right to personal liberty in breach of article 40.1, the court held.
The judgment was given on an appeal by the State against findings of the High Court in proceedings taken by the man, referred to as AB, who was detained in a psychiatric hospital in May 2015 on foot of an admission order after he suffered a serious psychotic episode.
