Four full-time tribunals will be required to hear appeals against detention in mental institutions in order to bring Ireland into line with international human rights norms.
At a recent case before the European Court of Human Rights in Strasbourg, the Government conceded that existing mental health legislation did not provide for an independent formal review of such detentions, contrary to its obligations under the European Convention on Human Rights. It agreed to pay an undisclosed sum to Mr Sean Croke, who brought the case following his involuntary detention on July 14th, 1994. The case was struck out following a friendly settlement between Mr Croke and the State. This included a specific commitment to enact the Mental Health Bill 1999, incorporating measures providing for independent review tribunals which would review all cases brought before them within 28 days of the detention.
The figure of four tribunals is based on Department of Health and Children calculations that approximately one-third of all those detained involuntarily will seek reviews. On average, people so detained are released within 17 days, and many might not then bother to challenge their detention, though under the new legislation they would be entitled to.
The Government was criticised before the UN Committee on Human Rights in Geneva this summer for providing for involuntary detention for up to 28 days before the review becomes necessary. The Attorney General, Mr Michael McDowell, said then that it would look again at this provision. If it is revised downwards, it could increase the demand for tribunals.
Under the proposed legislation the tribunals will consist of "a psychiatrist sitting with a legal assessor". There is no provision for a lay person, which is widely recognised to be essential to the balance of such tribunals, according to Ms Mary Keyes, a law lecturer in the National University Galway and an expert in mental health law.
There is also considerable concern about resourcing the tribunals. "Where will the tribunal members come from?" asked Mr Dara Robinson, the solicitor who took the Croke case to Strasbourg. "They will need to recruit and train solicitors, paid for out of the public purse, as each patient will be entitled to be represented by a solicitor. They are also guaranteeing every person an independent psychiatrist. Where are they going to come from?
"The real question is, not when are they going to pass the legislation but when are they going to bring it into full operation?"
"The resources involved will be enormous," commented Ms Keyes. "Unless there is a huge pledge of resources it won't work. The worry is - will the resources come from the care budget? Where will these additional psychiatrists come from? Will they be retired psychiatrists coming back to sit on tribunals?
"The problem with the legislation is that we have the right to take away freedom, but no obligation to provide a service. However, the Minister said in the Dail that other measures as well as this Bill will be needed, which is very positive."
Among the additional measures needed in the Bill was provision for intensive care in the community, as an alternative to involuntary detention, and for mentally disordered offenders to be provided with treatment, she said.
A spokesman for the Department of Health and Children said the Department was aware of the pending Croke case when drafting the legislation.
The Bill was amended at Committee stage last October, and was likely to be further amended at Report stage in the coming months, according to the spokesman. "The Minister is committed to implementing the legislation as soon as possible," he said.