Mental Health Act 2001


Number 25 of 2001


MENTAL HEALTH ACT 2001

REVISED

Updated to 30 March 2020


This Revised Act is an administrative consolidation of the Mental Health Act 2001. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including the Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), enacted 27 March 2020, and all statutory instruments up to and including the Planning and Development Act 2000 (Subsection (3) of Section 251A) Order 2020 (S.I. No. 129 of 2020), made 29 March 2020, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.


Number 25 of 2001


MENTAL HEALTH ACT 2001

REVISED

Updated to 30 March 2020


Introduction

This Revised Act presents the text of the Act as it has been amended since enactment, and preserves the format in which it was passed.

Related legislation

Mental Health Acts 1945 to 2001 : this Act is one of a group of Acts included in this collective citation, to be construed together as one ( Mental Health Act 2001 (25/2001), s. 1(2)). The Acts in this group are:

Mental Treatment Act 1945 (19/1945)

Mental Treatment Act 1961 (7/1961)

Mental Health Act 2001 (25/2001)

Mental Health Acts 2001 to 2018 : this Act is one of a group of Acts included in this collective citation, to be construed together as one ( Mental Health (Renewal Orders) Act 2018 (23/2012), s. 9(2)). The Acts in this group are:

Mental Health Act 2001 (25/2001)

Mental Health Act 2008 (19/2008)

Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63

Mental Health (Amendment) Act 2018 (10/2018)

Mental Health (Renewal Orders) Act 2018 (23/2018)

Annotations

This Revised Act is annotated and includes textual and non-textual amendments, statutory instruments made pursuant to the Act and previous affecting provisions.

An explanation of how to read annotations is available at

www.lawreform.ie/annotations.

Material not updated in this revision

Where other legislation is amended by this Act, those amendments may have been superseded by other amendments in other legislation, or the amended legislation may have been repealed or revoked. This information is not represented in this revision but will be reflected in a revision of the amended legislation if one is available.

Where legislation or a fragment of legislation is referred to in annotations, changes to this legislation or fragment may not be reflected in this revision but will be reflected in a revision of the legislation referred to if one is available.

A list of legislative changes to any Act, and to statutory instruments from 1972, may be found linked from the page of the Act or statutory instrument at

www.irishstatutebook.ie.

Acts which affect or previously affected this revision

Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020)

Mental Health (Renewal Orders) Act 2018 (23/2018)

Mental Health (Amendment) Act 2018 (10/2018)

Domestic Violence Act 2018 (6/2018)

Assisted Decision-Making (Capacity) Act 2015 (64/2015)

Mental Health (Amendment) Act 2015 (58/2015)

Ministers and Secretaries (Amendment) Act 2011 (10/2011)

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010)

Fines Act 2010 (8/2010)

Health (Miscellaneous Provisions) Act 2009 (25/2009)

Mental Health Act 2008 (19/2008)

Medical Practitioners Act 2007 (25/2007)

Criminal Law (Insanity) Act 2006 (11/2006)

Health Act 2004 (42/2004)

All Acts up to and including Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), enacted 27 March 2020, were considered in the preparation of this revision.

Statutory instruments which affect or previously affected this revision

Mental Health Commission Superannuation Scheme 2017 (S.I. No. 66 of 2017)

Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011)

Mental Health Act 2001 (Period Prescribed Under Section 72(6)) Regulations 2008 (S.I. No. 44 of 2008)

Mental Health Act 2001 (Approved Centres) Regulations 2006 (S.I. No. 551 of 2006)

Mental Health Act 2001 (Authorised Officer) Regulations 2006 (S.I. No. 550 of 2006)

Mental Health Act 2001 (Commencement) Order 2006 (S.I. No. 411 of 2006)

Mental Health Act 2001 (Establishment Day) Order 2002 (S.I. No. 91 of 2002)

Mental Health Act 2001 (Sections 1 To 5, 7, 31 To 55) (Commencement) Order 2002 (S.I. No. 90 of 2002)

All statutory instruments up to and including Planning and Development Act 2000 (Subsection (3) of Section 251a) Order 2020 (S.I. No. 129 of 2020), made 29 March 2020, were considered in the preparation of this revision.


Number 25 of 2001


MENTAL HEALTH ACT 2001

REVISED

Updated to 30 March 2020


ARRANGEMENT OF SECTIONS

PART I

Preliminary and General

Section

1.

Short title, collective citation, construction and commencement.

2.

Interpretation.

2A.

Exigencies of public health emergency.

3.

“Mental disorder”.

4.

Best interests, etc., of person.

4A.

Guiding principles in respect of children.

5.

Regulations.

6.

Repeals.

7.

Expenses.

PART 2

Involuntary admission of persons to approved centres

8.

Criteria for involuntary admission to approved centres.

9.

Persons who may apply for involuntary admission.

10.

Making of recommendation for involuntary admission.

11.

Disclosure of previous application for involuntary admission.

12.

Powers of Garda Síochána to take person believed to be suffering from mental disorder into custody.

13.

Removal of persons to approved centres.

14.

Admission order.

15.

Duration and renewal of admission orders.

16.

Provision of information for persons admitted to approved centres.

17.

Referral of admission order and renewal order to a tribunal.

18.

Review by a tribunal of admission orders and renewal orders.

19.

Appeal to Circuit Court.

20.

Application for transfer of patient.

21.

Transfer of patient.

22.

Transfer of patient to hospital.

23.

Power to prevent voluntary patient from leaving approved centre.

24.

Power to detain voluntary patients.

25.

Involuntary admission of children.

26.

Absence with leave.

27.

Absence without leave.

28.

Discharge of patients.

29.

Voluntary admission to approved centres.

30.

Penalties under Part 2.

PART 3

Independent Review of Detention

31.

Establishment day.

32.

Establishment of Mental Health Commission.

33.

Functions of Commission.

34.

Conferral of additional functions on Commission.

35.

Membership of Commission.

36.

Terms of office of members of Commission.

37.

Chairperson of Commission.

38.

Chief Executive of Commission.

39.

Staff of Commission.

40.

Superannuation of staff of Commission.

41.

Borrowing by Commission.

42.

Reports and information to Minister.

43.

Membership of either House of Oireachtas or European Parliament.

44.

Grants to Commission.

45.

Gifts.

46.

Seal of Commission.

47.

Accounts and audits of Commission.

48.

Mental Health Tribunals.

49.

Powers of tribunals.

50.

Inspector of Mental Health Services.

51.

Functions of Inspector.

52.

Duties of Inspector when making inspection.

53.

Penalty for obstruction of Inspector.

54.

Assistant Inspectors of Mental Health Services.

55.

Inquiries.

PART 4

Consent to Treatment

56.

Definition ( Part 4).

57.

Treatment not requiring consent.

58.

Psycho-surgery.

59.

Electro-convulsive therapy.

60.

Administration of medicine.

61.

Treatment of children in respect of whom an order under section 25 is in force.

PART 5

Approved Centres

62.

Definitions ( Part 5).

63.

Prohibition of unregistered centres.

64.

Registration of approved centres.

65.

Appeals.

66.

Regulations in relation to approved centres.

67.

Restriction on admission of patients.

68.

Penalties under Part 5.

PART 6

Miscellaneous

69.

Bodily restraint and seclusion.

70.

Participation in clinical trials.

71.

Clinical directors.

71A.

Removal of persons and bringing back of patients to approved centres by authorised persons or by relevant persons.

72.

Transitional provisions.

73.

Leave of High Court for certain proceedings.

74.

Provisions in relation to offences.

75.

Review of operation of Act.

SCHEDULE

Enactments Repealed

Acts Referred to

Adoption Acts, 1952 to 1998

Child Care Act, 1991

1991, No. 17

Comptroller and Auditor General (Amendment) Act, 1993

1993, No. 8

Control of Clinical Trials Act, 1987

1987, No. 28

Domestic Violence Act, 1996

1996, No. 1

European Parliament Elections Act, 1997

1997, No. 2

Freedom of Information Act, 1997

1997, No. 13

Health Act, 1970

1970, No. 1

Health (Eastern Regional Health Authority) Act, 1999

1999, No. 13

Health (Mental Services) Act, 1981

1981, No. 17

Mental Treatment Act, 1945

1945, No. 19

Mental Treatment Act, 1953

1953, No. 35

Mental Treatment Act, 1961

1961, No. 7

Mental Treatment (Detention in Approved Institutions) Act, 1961

1961, No. 4

Nurses Act, 1985

1985, No. 18

Petty Sessions (Ireland) Act, 1851

1851, c. 93


Number 25 of 2001


MENTAL HEALTH ACT 2001

REVISED

Updated to 30 March 2020


AN ACT TO PROVIDE FOR THE INVOLUNTARY ADMISSION TO APPROVED CENTRES OF PERSONS SUFFERING FROM MENTAL DISORDERS, TO PROVIDE FOR THE INDEPENDENT REVIEW OF THE INVOLUNTARY ADMISSION OF SUCH PERSONS AND, FOR THOSE PURPOSES, TO PROVIDE FOR THE ESTABLISHMENT OF A MENTAL HEALTH COMMISSION AND THE APPOINTMENT OF MENTAL HEALTH COMMISSION TRIBUNALS AND AN INSPECTOR OF MENTAL HEALTH SERVICES, TO REPEAL IN PART THE MENTAL TREATMENT ACT, 1945, AND TO PROVIDE FOR RELATED MATTERS. [8 th July, 2001]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Annotations:

Modifications (not altering text):

C1

Prospective affecting provision: application of Act extended by Assisted Decision-Making (Capacity) Act 2015 (64/2015), s. 106, not commenced as of date of revision.

Detention-related safeguards

106. Where an issue arises in the course of an application to the court or the High Court under this Act, or otherwise in connection with the operation of this Act, as to whether a person who lacks capacity is suffering from a mental disorder, the procedures provided for under the Act of 2001 shall be followed as respects any proposal to detain that person.

C2

Functions under collectively cited Mental Health Acts 1945 to 2001 transferred and specified bodies dissolved (1.01.2005) by Health Act 2004 (42/2004), ss. 58, 59 and sch. 3, item 3, S.I. No. 885 of 2004, subject to transitional provisions in s. 74 and sch. 5, item 2(k).

Dissolution of health boards and other specified bodies.

58.—The specified bodies are, by this Act, dissolved on the establishment day.

Transfer of functions of specified bodies to Executive.

59.—(1) The functions that, immediately before the establishment day, were the functions of a specified body under or in connection with the enactments referred to in Schedule 3 are, by this Act, transferred to the Executive on that day.

(2) If a provision of an enactment referred to in Schedule 3 , or a provision of an instrument made under such enactment, does not come into effect until on or after the establishment day, a function that on the passing of that enactment or the making of that instrument was assigned under or in connection with that provision to a specified body is, by this Act, transferred to the Executive on the commencement of that provision.

(3) The functions transferred by this Act to the Executive include the functions specified in any enactment referred to in Schedule 3 as a function of the following:

(a) the chief executive officer of a health board;

(b) the Regional Chief Executive of the Eastern Regional Health Authority;

(c) the area chief executive of an Area Health Board.

...

SCHEDULE THREE

Transfer of Functions and References to Functional Areas

Section 59 and 67.

...

3.—Mental Health Acts 1945 to 2001

...

PART 1

Preliminary and General

Short title, collective citation, construction and commencement.

1

1.—(1) This Act may be cited as the Mental Health Act, 2001.

(2) The Mental Treatment Act, 1945, the Mental Treatment Act, 1961 , and this Act may be cited together as the Mental Health Acts, 1945 to 2001, and shall be construed together as one.

(3) This Act shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes and different provisions.

Annotations:

Editorial Notes:

E1

Power pursuant to subs. (3) exercised (1.11.2006) by Mental Health Act 2001 (Commencement) Order 2006 (S.I. No. 411 of 2006), art 2.

2. The 1st day of November 2006 is fixed as the day on which the Mental Health Act 2001 (No. 25 of 2001) shall, insofar as it is not already in operation, come into operation.

E2

Power pursuant to subs. (3) exercised (5.04.2002) by Mental Health Act 2001 (Sections 1 To 5, 7, 31 To 55) (Commencement) Order 2002 (S.I. No. 90 of 2002), art 2.

2. The 5th day of April, 2002, is hereby appointed as the day on which sections 1 to 5, 7 and 31 to 55 inclusive of the Mental Health Act, 2001 (No. 25 of 2001), shall come into operation.

Interpretation.

2

2.—(1) In this Act, save where the context otherwise requires—

“Act of 1945” means the Mental Treatment Act, 1945;

“admission order” shall be construed in accordance with section 14 ;

“application” means an application for a recommendation that a person be involuntarily admitted to an approved centre and “applicant” shall be construed accordingly;

“approved centre” shall be construed in accordance with section 63 ;

F1 [ authorised person

( a ) in relation to the removal pursuant to section 13 of a person to an approved centre, means a person who is for the time being authorised pursuant to section 71A(2) to provide services relating to such removal,

( b ) in relation to the bringing back pursuant to section 27 of a patient to an approved centre, means a person who is for the time being authorised pursuant to section 71A(2) to provide services relating to such bringing back; ]

“child” means a person under the age of 18 years other than a person who is or has been married;

F2 [ civil partner means a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]

“clinical director” means a person appointed under section 71 ;

“Commission” means the Mental Health Commission established under section 32 ;

“consultant psychiatrist” means a consultant psychiatrist who is employed by F3 [ the Health Service Executive ] or by an approved centre or a person whose name is entered on the division of psychiatry or the division of child and adolescent psychiatry of the Register of Medical Specialists maintained by the Medical Council in Ireland;

“establishment day” means the day appointed by the Minister under section 31 ;

“examination”, in relation to a recommendation, an admission order or a renewal order, means a personal examination carried out by a registered medical practitioner or a consultant psychiatrist of the process and content of thought, the mood and the behaviour of the person concerned;

F4 [ ];

“functions” includes powers and duties and references to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties;

“give” includes send, whether by post or electronic or other means, and cognate words shall be construed accordingly;

F4 [ ];

“Inspector” shall be construed in accordance with section 50 ;

“legal representative” means a barrister or a solicitor;

“mental health services” means services which provide care and treatment to persons suffering from a mental illness or a mental disorder under the clinical direction of a consultant psychiatrist;

“mental illness” has the meaning assigned to it by section 3 ;

“Minister” means the Minister for Health and Children;

“parents” includes a surviving parent and, in the case of a child who has been adopted under the Adoption Acts, 1952 to 1998, or, where the child has been adopted outside the State, whose adoption is recognised by virtue of the law for the time being in force in the State, means the adopter or adopters or the surviving adopter;

“patient” shall be construed in accordance with section 14 ;

“prescribed” means prescribed by regulations made by the Minister;

“recommendation” shall be construed in accordance with section 10 ;

“registered nurse” means a person whose name is entered in the register of nurses maintained by An Board Altranais under section 27 of the Nurses Act, 1985 ;

“registered medical practitioner” means a person whose name is entered in the General Register of Medical Practitioners;

“registered proprietor” has the meaning assigned to it by section 62 ;

“relative”, in relation to a person, means a parent, grandparent, brother, sister, uncle, aunt, niece, nephew or child of the person or of the spouse of the person whether of the whole blood, of the half blood or by affinity;

“renewal order” shall be construed in accordance with section 15 ;

“spouse” means a husband or wife or a man or a woman who is cohabiting with a person of the opposite sex for a continuous period of not less than 3 years but is not married to that person;

“treatment”, in relation to a patient, includes the administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder;

“tribunal” shall be construed in accordance with section 48 ;

“voluntary patient” means a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order.

(2) In this Act, except where the context otherwise requires—

( a) a reference to any enactment shall be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,

( b) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

( c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

Annotations:

Amendments:

F1

Inserted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(1), commenced on enactment.

F2

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 98(2), S.I. No. 648 of 2010.

F3

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 1(c), S.I. No. 887 of 2004.

F4

Deleted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 1(a) and (b), S.I. No. 887 of 2004.

F5

Inserted by Mental Health (Amendment) Act 2018 (10/2018), s. 2(a), not commenced as of date of revision.

F6

Substituted by Mental Health (Amendment) Act 2018 (10/2018), s. 2(b), not commenced as of date of revision.

Modifications (not altering text):

C3

Prospective affecting provision: definitions of “Act of 2015” and “guiding principles” inserted and definition of “voluntary patient” substituted by Mental Health (Amendment) Act 2018 (10/2018), s. 2, not commenced as of date of revision.

F5 [ Act of 2015 means Assisted Decision-Making (Capacity) Act 2015 ;

guiding principles shall be construed

( a ) in relation to a person, other than a child, in accordance with section 4 ,

( b ) in relation to a child, in accordance with section 4A ; ]

F6 [ voluntary patient means a person who

( a ) has capacity (within the meaning of section 3 of the Act of 2015),

( b ) has been admitted to an approved centre, and

( c ) has given consent to his or her admission. ]

C4

References to “registered medical practitioner” construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108, S.I. No. 231 of 2008, as amended (21.12.2007) by Health (Miscellaneous Provisions) Act 2007 (42/2007), s. 20 and sch. 2, commenced on enactment.

108.—(1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

(2) Every reference to the General Register of Medical Practitioners contained in any other enactment or any statutory instrument shall [, on and after the register establishment day,] be construed as a reference to [...] the register.

(3) Every reference to—

( a) the Medical Council, or

( b) the Medical Registration Council,

contained in any other enactment or any statutory instrument shall be construed as the Council within the meaning of section 2.

F7 [ Exigencies of public health emergency

2A

2A. (1) A reference in this Act to the exigencies of the public health emergency is a reference to the exigencies of the public health emergency posed by the spread of Covid-19 and, in particular, to:

( a ) the manifest and grave risk to human life and public health posed by the spread of Covid-19;

( b ) the necessity, for compelling reasons of public interest and for the common good, for measures and safeguards to prevent, minimise or limit the risk of persons being infected with Covid-19;

( c ) the effect, on the availability of consultant psychiatrists and other persons to perform functions under this Act, of the spread of Covid-19 and of the deployment of the resources of the health services in order to

(i) prevent, minimise or limit the risk of persons being infected with Covid-19,

(ii) test persons for Covid-19, and

(iii) provide care and treatment to persons infected with Covid-19.

(2) In this section, Covid-19 means a disease caused by infection with the virus SARS-CoV-2 and specified as an infectious disease in accordance with Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 ( S.I. No. 390 of 1981 ) or any variant of the disease so specified as an infectious disease in those Regulations. ]

Annotations:

Amendments:

F7

Inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 16, commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

Editorial Notes:

E3

The section heading is taken from the amending section in the absence of one included in the amendment.

“Mental disorder”.

3

3.—(1) In this Act “mental disorder” means mental illness, severe dementia or significant intellectual disability where—

( a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or

( b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.

(2) In subsection (1)

“mental illness” means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;

“severe dementia” means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression;

“significant intellectual disability” means a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person.

Best interests, etc., of person.

4

4.—(1) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.

(2) Where it is proposed to make a recommendation or an admission order in respect of a person, or to administer treatment to a person, under this Act, the person shall, so far as is reasonably practicable, be notified of the proposal and be entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this subsection.

(3) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.

Annotations:

Amendments:

F8

Substituted by Mental Health (Amendment) Act 2018 (10/2018), s. 3, not commenced as of date of revision.

Modifications (not altering text):

C5

Prospective affecting provision: section substituted by Mental Health (Amendment) Act 2018 (10/2018), s. 3, not commenced as of date of revision.

F8 [ 4. (1) Where it is proposed to make a decision in respect of a person the subject of the decision under this Act, the person shall, so far as is reasonably practicable, be notified of the proposal and entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this section.

(2) The principles specified in subsections (3) to (11) (in this Act referred to as the guiding principles ) shall apply in respect of the making of a decision.

(3) It shall be presumed that a person in respect of whom a decision is being made has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of the Act of 2015.

(4) A person shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.

(5) A person shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.

(6) There shall be no decision taken in respect of a person unless it is necessary to do so having regard to the individual circumstances of that person.

(7) A decision taken in respect of a person shall

( a ) be made in a manner that minimises

(i) the restriction of the person s rights, and

(ii) the restriction of the person s freedom of action,

( b ) have due regard to the need to respect the right of the person to dignity, bodily integrity, privacy, autonomy,

( c ) be proportionate to the significance and urgency of the matter the subject of the decision, and

( d ) have due regard to the need to have access to health services that have as the aim of those services the delivery of the highest attainable standard of mental health as well as the person s right to his or her own understanding of his or her mental health.

(8) Notwithstanding the generality of subsection (1) , in making a decision

( a ) the person in respect of whom the decision concerned is being made shall be permitted, encouraged and facilitated, in so far as is practicable, to participate, or to improve his or her ability to participate, as fully as possible, in the decision,

( b ) effect shall be given, in so far as is practicable, to the person s past and present will and preferences, in so far as that will and those preferences are reasonably ascertainable,

( c ) account shall be taken of

(i) the beliefs and values of the person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors which the person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

( d ) unless the person making the decision in respect of the person concerned reasonably considers that it is not appropriate or practicable to do so, he or she shall consider the views of any other person named by the person as a person to be consulted on the matter concerned or any similar matter,

( e ) the person making the decision shall act at all times in good faith and for the benefit of the person in respect of whom the decision is being made, and

( f ) the person making the decision shall consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant to the making of the decision concerned.

(9) In making a decision, the person making the decision in respect of the person concerned may consider the views of

( a ) any person engaged in caring for the person,

( b ) any person who has a bona fide interest in the welfare of the person, or

( c ) any other healthcare professionals.

(10) In the case of a decision in respect of a person who lacks capacity, regard shall be had to

( a ) the likelihood of the recovery of the person s capacity in respect of the matter concerned, and

( b ) the urgency of making the decision prior to such recovery.

(11) In making a decision, the person making the decision

( a ) shall not seek to obtain information that is not reasonably required for making a decision,

( b ) shall not use information for a purpose other than in relation to a decision, and

( c ) shall take reasonable steps to ensure that information

(i) is kept secure from unauthorised access, use or disclosure, and

(ii) is safely disposed of when he or she believes it is no longer required.

(12) Section 4 shall not apply to a person who at the time of the decision is a child.

(13) In this section

capacity has the same meaning as it has in section 3 of the Act of 2015;

decision , means, in relation to a person, a decision under this Act concerning the care or treatment of the person (including a decision to make an admission order in relation to the person). ]

F9 [ Guiding principles in respect of children.

4A

4A. ... ]

Annotations:

Amendments:

F9

Inserted by Mental Health (Amendment) Act 2018 (10/2018), s. 4, not commenced as of date of revision.

Modifications (not altering text):

C6

Prospective affecting provision: section inserted by Mental Health (Amendment) Act 2018 (10/2018), s. 4, not commenced as of date of revision.

F9 [ 4A. (1) In making a decision under this Act concerning the care or treatment of a child (including the making of a specific application under section 25(1) and a decision of the Court to make an order under section 25(6) authorising the detention of a child in an approved centre), the best interests of the child shall be the paramount consideration.

(2) Notwithstanding the generality of subsection (1) , in making a decision under this Act concerning the care or treatment of a child (including the making of a specific application under section 25(1) and a decision of the Court to make an order under section 25(6) authorising the detention of a child in an approved centre), due regard shall also be given to the following principles (in this Act referred to as guiding principles ), namely the need

( a ) for every child to have access to health services that have as the aim of those services, the delivery of the highest attainable standard of child mental health,

( b ) in the case of a child who is capable of forming his or her own views, to consult, where practicable, the child at each stage of diagnosis and treatment and give due weight to

(i) his or her views, and

(ii) his or her will or preferences,

having regard to the age and maturity of that child,

( c ) in so far as is practicable, to provide care and treatment

(i) in an age-appropriate environment, and

(ii) in close proximity to the child s home or family, as appropriate,

( d ) for the child to receive the least intrusive treatment possible in the least restrictive environment practicable, and

( e ) to respect the right of the child to dignity, bodily integrity, privacy and autonomy. ]

Editorial Notes:

E4

The section heading is taken from the amending section in the absence of one included in the amendment.

Regulations.

5

5.—(1) The Minister may—

( a) by regulations provide, subject to the provisions of this Act, for any matter referred to in this Act as prescribed or to be prescribed,

( b) in addition to any other power conferred on him or her to make regulations, make regulations generally for the purposes of, and for the purpose of giving full effect to, this Act,

( c) if any difficulty arises during the period of 12 months from the commencement of this Act in bringing this Act into operation, by regulations do anything which appears to be necessary or expedient for bringing this Act into operation and regulations under this paragraph may, in so far only as may appear necessary for carrying the regulations into effect, modify a provision of this Act if the modification is in conformity with the purposes, principles and spirit of this Act.

(2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

Annotations:

Editorial Notes:

E5

Power pursuant to subs. (1) exercised (26.02.2008) by Mental Health Act 2001 (Period Prescribed under Section 72(6)) Regulations 2008 (S.I. No. 44 of 2008).

E6

Power pursuant to subs. (1) exercised (1.11.2006) by Mental Health Act 2001 (Approved Centres) Regulations 2006 (S.I. No. 551 of 2006), in effect as per reg. 2.

E7

Power pursuant to subs. (1) exercised (1.11.2006) by Mental Health Act 2001 (Authorised Officer) Regulations 2006 (S.I. No. 550 of 2006), in effect as per reg. 2.

Repeals.

6

6.—(1) Subject to subsection (2), the enactments specified in column (3) of the Schedule at any reference number are hereby repealed to the extent mentioned in column (4) of that Schedule at that reference number.

(2) The repeal effected by subsection (1) of section 94 of the Act of 1945 shall not have effect in so far as the said section 94 applies to a person who, upon the commencement of the repeal, is a resident medical superintendent.

Expenses.

7

7.—The expenses incurred by the Minister in the administration of this Act, shall to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2

Involuntary admission of persons to approved centres

Criteria for involuntary admission to approved centres.

8

8.—(1) A person may be involuntarily admitted to an approved centre pursuant to an application under section 9 or 12 and detained there on the grounds that he or she is suffering from a mental disorder.

(2) Nothing in subsection (1) shall be construed as authorising the involuntary admission of a person to an approved centre by reason only of the fact that the person—

( a) is suffering from a personality disorder,

( b) is socially deviant, or

( c) is addicted to drugs or intoxicants.

(3) The Commission shall, from time to time, issue guidelines for staff in approved centres in relation to the provisions of this section.

Persons who may apply for involuntary admission.

9

9.—(1) Subject to subsection (4) and (6) and section 12 , where it is proposed to have a person (other than a child) involuntarily admitted to an approved centre, an application for a recommendation that the person be so admitted may be made to a registered medical practitioner by any of the following:

( a) the spouse F10 [ or civil partner ] or a relative of the person,

( b) an authorised officer,

( c) a member of the Garda Síochána, or

( d) subject to the provisions of subsection (2), any other person.

(2) The following persons shall be disqualified for making an application in respect of a person—

( a) a person under the age of 18 years,

( b) an authorised officer or a member of the Garda Síochána who is a relative of the person or of the spouse F10 [ or civil partner ] of the person,

( c) a member of the governing body, or the staff, or the person in charge, of the approved centre concerned,

F11 [ ( cc ) an authorised person (but without prejudice to any capacity that the authorised person has to make such an application by virtue of paragraph ( a ), ( b ) or ( c ) of subsection (1) ), ]

( d) any person with an interest in the payments (if any) to be made in respect of the taking care of the person concerned in the approved centre concerned,

( e) any registered medical practitioner who provides a regular medical service at the approved centre concerned,

( f) the spouse F10 [ or civil partner ], parent, grandparent, brother, sister, uncle or aunt of any of the persons mentioned in the foregoing paragraphs (b) to (e), whether of the whole blood, of the half blood or by affinity.

(3) An application shall be made in a form specified by the Commission.

(4) A person shall not make an application unless he or she has observed the person the subject of the application not more than 48 hours before the date of the making of the application.

(5) Where an application is made under subsection (1)(d), the application shall contain a statement of the reasons why it is so made, of the connection of the applicant with the person to whom the application relates, and of the circumstances in which the application is made.

(6) A person who, for the purposes of or in relation to an application, makes any statement which is to his or her knowledge false or misleading in any material particular, shall be guilty of an offence.

(7) In paragraph (c) of subsection (2), the reference to a member of the governing body of the approved centre concerned does not include a reference to F12 [ a member of the Board of the Health Service Executive. ]

(8) In this section—

“authorised officer” means an officer of F12 [ the Health Service Executive ] who is of a prescribed rank or grade and who is authorised by the chief executive officer to exercise the powers conferred on authorised officers by this section;

F13 [ civil partner , in relation to a person, does not include a civil partner of a person who is living separately and apart from the person or in respect of whom

( a ) an application for an order has been made under the Domestic Violence Act 2018 or an application for an order has been made which is treated, in accordance with section 42 of that Act, as if it had been made under that Act, or

( b ) an order has been made under the Domestic Violence Act 2018 or an order has been made which is treated, in accordance with section 41 of that Act, as if it had been made under that Act; ]

F13 [ spouse , in relation to a person, does not include a spouse of a person who is living separately and apart from the person or in respect of whom

( a ) an application for an order has been made under the Domestic Violence Act 2018 or an application for an order has been made which is treated, in accordance with section 42 of that Act, as if it had been made under that Act, or

( b ) an order has been made under the Domestic Violence Act 2018 or an order has been made which is treated, in accordance with section 41 of that Act, as if it had been made under that Act. ]

Annotations:

Amendments:

F10

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 98(3), S.I. No. 648 of 2010.

F11

Inserted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(2), commenced on enactment.

F12

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 2(a) and (b), S.I. No. 887 of 2004.

F13

Substituted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 48, S.I. No. 532 of 2018.

Editorial Notes:

E8

Power pursuant to subs. (8) exercised (1.11.2006) by Mental Health Act 2001 (Authorised Officer) Regulations 2006 (S.I. No. 550 of 2006), in effect as per reg. 2.

E9

Previous affecting provision: definition of “civil partner” inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 98(3), S.I. No. 648 of 2010; substituted as per F-note above.

Making of recommendation for involuntary admission.

10

10.—(1) Where a registered medical practitioner is satisfied following an examination of the person the subject of the application that the person is suffering from a mental disorder, he or she shall make a recommendation (in this Act referred to as “a recommendation”) in a form specified by the Commission that the person be involuntarily admitted to an approved centre (other than the Central Mental Hospital) specified by him or her in the recommendation.

(2) An examination of the person the subject of an application shall be carried out within 24 hours of the receipt of the application and the registered medical practitioner concerned shall inform the person of the purpose of the examination unless in his or her view the provision of such information might be prejudicial to the person's mental health, well-being or emotional condition.

(3) A registered medical practitioner shall, for the purposes of this section, be disqualified for making a recommendation in relation to a person the subject of an application—

( a) if he or she has an interest in the payments (if any) to be made in respect of the care of the person in the approved centre concerned,

( b) if he or she is a member of the staff of the approved centre to which the person is to be admitted,

( c) if he or she is a spouse F14 [ , a civil partner ] or a relative of the person, or

( d) if he or she is the applicant.

(4) A recommendation under subsection (1) shall be sent by the registered medical practitioner concerned to the clinical director of the approved centre concerned and a copy of the recommendation shall be given to the applicant concerned.

(5) A recommendation under this section shall remain in force for a period of 7 days from the date of its making and shall then expire.

Annotations:

Amendments:

F14

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 98(4), S.I. No. 648 of 2010.

Modifications (not altering text):

C7

References to “registered medical practitioner” construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108(1), S.I. No. 231 of 2008.

108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

...

Disclosure of previous application for involuntary admission.

11

11.—(1) Where following the refusal of an application any further such application is made in respect of the same person, the applicant, so far as he or she is aware of the facts relating to the previous application and its refusal, shall state those facts to the registered medical practitioner to whom the further application is made.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

Annotations:

Modifications (not altering text):

C8

References to “registered medical practitioner” construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108(1), S.I. No. 231 of 2008.

108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

...

Powers of Garda Síochána to take person believed to be suffering from mental disorder into custody.

12

12.—(1) Where a member of the Garda Síochána has reasonable grounds for believing that a person is suffering from a mental disorder and that because of the mental disorder there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons, the member may either alone or with any other members of the Garda Síochána—

( a) take the person into custody, and

( b) enter if need be by force any dwelling or other premises or any place if he or she has reasonable grounds for believing that the person is to be found there.

(2) Where a member of the Garda Síochána takes a person into custody under subsection (1), he or she or any other member of the Garda Síochána shall make an application forthwith in a form specified by the Commission to a registered medical practitioner for a recommendation.

(3) The provisions of sections 10 and 11 shall apply to an application under this section as they apply to an application under section 9 with any necessary modifications.

(4) If an application under this section is refused by the registered medical practitioner pursuant to the provisions of section 10 , the person the subject of the application shall be released from custody immediately.

(5) Where, following an application under this section, a recommendation is made in relation to a person, a member of the Garda Síochána shall remove the person to the approved centre specified in the recommendation.

Annotations:

Modifications (not altering text):

C9

References to “registered medical practitioner” construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108(1), S.I. No. 231 of 2008.

108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

...

Removal of persons to approved centres.

13

13.—(1) Where a recommendation is made in relation to a person (other than a recommendation made following an application under section 12 ), the applicant concerned shall arrange for the removal of the person to the approved centre specified in the recommendation.

(2) Where the applicant concerned is unable to arrange for the removal of the person concerned, the clinical director of the approved centre specified in the recommendation or a consultant psychiatrist acting on his or her behalf shall, at the request of the registered medical practitioner who made the recommendation, arrange for the removal of the person to the approved centre by members of the staff of the approved centre F15 [ or by authorised persons ].

(3) Where the clinical director of the approved centre or a consultant psychiatrist acting on his or her behalf and the registered medical practitioner who made the recommendation are of opinion that there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist F16 [ in such removal ] of the person to that centre and the Garda Síochána shall comply with any such request.

(4) Where a request is made to the Garda Síochána under subsec-tion (3) , a member or members of the Garda Síochána may—

( a) enter if need be by force any dwelling or other premises where he or she has reasonable cause to believe that the person concerned may be, and

( b) take all reasonable measures necessary for the removal of the person concerned to the approved centre including, where necessary, the detention or restraint of the person concerned.

Annotations:

Amendments:

F15

Inserted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(3)(a), commenced on enactment.

F16

Substituted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(3)(b), commenced on enactment.

Modifications (not altering text):

C10

References to “registered medical practitioner” construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108(1), S.I. No. 231 of 2008.

108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

...

Admission order.

14

14.—(1) Where a recommendation in relation to a person the subject of an application is received by the clinical director of an approved centre, a consultant psychiatrist on the staff of the approved centre shall, as soon as may be, carry out an examination of the person and shall thereupon either—

( a) if he or she is satisfied that the person is suffering from a mental disorder, make an order to be known as an involuntary admission order and referred to in this Act as “an admission order” in a form specified by the Commission for the reception, detention and treatment of the person and a person to whom an admission order relates is referred to in this Act as “a patient”, or

( b) if he or she is not so satisfied, refuse to make such order.

(2) A consultant psychiatrist, a medical practitioner or a registered nurse on the staff of the approved centre shall be entitled to take charge of the person concerned and detain him or her for a period not exceeding 24 hours (or such shorter period as may be prescribed after consultation with the Commission) for the purpose of carrying out an examination under subsection (1) or, if an admission order is made or refused in relation to the person during that period, until it is granted or refused.

(3) A consultant psychiatrist shall, for the purposes of this section, be disqualified for making an admission order in relation to a person the subject of an application—

( a) if he or she is a spouse F17 [ , a civil partner ] or a relative of the person, or

( b) if he or she is the applicant.

Annotations:

Amendments:

F17

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 98(5), S.I. No. 648 of 2010.

Duration and renewal of admission orders.

15

15.—(1) An admission order shall authorise the reception, detention and treatment of the patient concerned and shall remain in force for a period of 21 days from the date of the making of the order and, subject to subsection (2) and section 18(4) , shall then expire.

(2) The period referred to in subsection (1) may be extended by order (to be known as and in this Act referred to as “a renewal order”) made by the consultant psychiatrist responsible for the care and treatment of the patient concerned for a further period not exceeding 3 months.

F18 [ (3) ( a ) The period referred to in subsection (1) may be further extended by order made by the consultant psychiatrist concerned for a period not exceeding 6 months beginning on the expiration of the renewal order made by the psychiatrist under subsection (2) and thereafter may be further extended by order made by the psychiatrist for periods each of which does not exceed 6 months (each of which orders is also referred to in this Act as a renewal order ).

( b ) Subject to paragraphs (c) and (d) , a patient detained pursuant to any renewal order made under paragraph (a) for a period exceeding 3 months, or his or her legal representative, on the instructions of the patient or on the representative s own initiative, may make one application per renewal order period, in a form specified by the Commission for the purpose, in respect of that renewal order to the Commission to have his or her detention reviewed by a tribunal in accordance with the provisions of section 18 .

( c ) An application referred to in paragraph (b) shall be made to the Commission not earlier than 3 months from the date on which the renewal order concerned was made under paragraph (a) .

( d ) For the purposes of a review conducted pursuant to an application referred to in paragraph (b) , subsection (1) of section 18 shall be read as if paragraph (a) of that subsection were deleted therefrom and the following paragraph were substituted therefor:

( a ) if satisfied that the patient is suffering from a mental disorder, affirm the order, or ]

(4) The period referred to in subsection (1) shall not be extended under subsection (2) or (3) unless the consultant psychiatrist concerned has not more than one week before the making of the order concerned examined the patient concerned and certified in a form specified by the Commission that the patient continues to suffer from a mental disorder.

Annotations:

Amendments:

F18

Substituted (8.10.2018) by Mental Health (Renewal Orders) Act 2018 (23/2018), s. 4, S.I. No. 397 of 2018.

Editorial Notes:

E10

Previous affecting provisions: application of subs. (1) extended and transitional provision for unexpired renewal orders, replacement renewal orders and confirmation of expired renewal orders made (30.10.2008) by Mental Health Act 2008 (19/2008), ss. 3, 4 and 5, commenced on enactment. Note also transitional provision in 19/2008, s. 7(2).

Provision of information for persons admitted to approved centres.

16

16.—(1) Where a consultant psychiatrist makes an admission order or a renewal order, he or she shall, not later than 24 hours thereafter—

( a) send a copy of the order to the Commission, and

( b) give notice in writing of the making of the order to the patient.

(2) A notice under this section shall include a statement in writing to the effect that the patient—

( a) is being detained pursuant to section 14 or 15, as the case may be,

( b) is entitled to legal representation,

( c) will be given a general description of the proposed treatment to be administered to him or her during the period of his or her detention,

( d) is entitled to communicate with the Inspector,

( e) will have his or her detention reviewed by a tribunal in accordance with the provisions of section 18 ,

F19 [ ( ee ) subject to section 15(3)(c) and (d) , is entitled, by virtue of section 15(3)(b) , to apply (or have his or her legal representative apply on the instructions of the patient or on the representative s own initiative) to the Commission to have the patient s detention further reviewed by a tribunal in accordance with the provisions of section 18 , ]

( f) is entitled to appeal to the Circuit Court against a decision of a tribunal under section 18 if he or she is the subject of a renewal order, and

( g) may be admitted to the approved centre concerned as a voluntary patient if he or she indicates a wish to be so admitted.

(3) In this section references to an admission order shall include references to the relevant recommendation and the relevant application.

Annotations:

Amendments:

F19

Inserted (8.10.2018) by Mental Health (Renewal Orders) Act 2018 (23/2018), s. 5, S.I. No. 397 of 2018.

Editorial Notes:

E11

Previous affecting provisions: transitional provision for unexpired renewal orders, replacement renewal orders and confirmation of expired renewal orders made (30.10.2008) by Mental Health Act 2008 (19/2008), ss. 3, 4 and 5, commenced on enactment. Note also transitional provision in 19/2008, s. 7(2).

Referral of admission order and renewal order to a tribunal.

17

17.—(1) Following the receipt by the Commission of a copy of an admission order or a renewal order, F20 [ or an application referred to in section 15(3)(b) , ] the Commission shall, as soon as possible—

( a) refer the matter to a tribunal,

( b) assign a legal representative to represent the patient concerned unless he or she proposes to engage one,

F21 [ ( c ) direct in writing a member of the panel of consultant psychiatrists established under section 33(3)(b) or a consultant psychiatrist, other than the consultant psychiatrist responsible for the care and treatment of the patient concerned, to

(i) subject to subsection (6) , examine the patient concerned,

(ii) interview the consultant psychiatrist responsible for the care and treatment of the patient, and

(iii) review the records relating to the patient,

in order to determine in the interest of the patient whether the patient is suffering from a mental disorder and to give a report in writing within 14 days on the results of the examination, interview and review to the tribunal to which the matter has been referred and to give a copy of the report to the legal representative of the patient, ]

F22 [ ( d ) direct in writing the consultant psychiatrist responsible for the care and treatment of the patient concerned to give a report in writing to the tribunal to which the matter has been referred no earlier than the day before the date of the relevant sitting of the tribunal on his or her opinion as to whether the patient continues to suffer from a mental disorder and to give a copy of the report to the legal representative of the patient. ]

(2) F23 [ ]

F21 [ (3) If the consultant psychiatrist to whom a direction has been given under subsection (1)(c) is unable to comply with the direction, he or she shall so notify the Commission in writing and the Commission shall give a direction under subsection (1)(c) to another member of the panel of consultant psychiatrists or another consultant psychiatrist other than the consultant psychiatrist responsible for the care and treatment of the patient concerned. ]

(4) A person who obstructs or interferes or fails to co-operate with a consultant psychiatrist in the performance of his or her functions under this section shall be guilty of an offence.

F22 [ (5) It shall be a defence for a person who is charged with an offence under subsection (4) of failing to co-operate with a consultant psychiatrist in the performance of his or her functions under this section to prove that the failure was attributable to the exigencies of the public health emergency.

(6) In the event that a consultant psychiatrist concerned is unable, due to the exigencies of the public health emergency, to carry out an examination, whether in person or by other appropriate means, under subsection (1)(c)(i) , he or she shall set out the particular reasons for being unable to do so in his or her report to the tribunal under that subsection. ]

Annotations:

Amendments:

F20

Inserted (8.10.2018) by Mental Health (Renewal Orders) Act 2018 (23/2018), s. 6, S.I. No. 397 of 2018.

F21

Substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 17(a)(i), (b), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F22

Inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 17(a)(ii), (c), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F23

Suspended (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 23(a), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F24

Substituted by Assisted Decision-Making (Capacity) Act 2015 (64/2015), s. 144(a), not commenced as of date of revision.

Modifications (not altering text):

C11

Section prior to 30 March 2020 temporarily suspended and subs. (1)(c) substituted, (d) inserted, subs. (2) suspended, subs. (3) substituted and subss. (5) and (6) inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), ss. 17, 23(a), commenced as per s. 1(2)(b), 3(a), (b), subject to exception in s. 24. The suspended section is reproduced below.

17.—(1) Following the receipt by the Commission of a copy of an admission order or a renewal order, F20 [ or an application referred to in section 15(3)(b) , ] the Commission shall, as soon as possible—

( a) refer the matter to a tribunal,

( b) assign a legal representative to represent the patient concerned unless he or she proposes to engage one,

( c) direct in writing (referred to in this section as “a direction”) a member of the panel of consultant psychiatrists established under section 33(3)(b) to—

(i) examine the patient concerned,

(ii) interview the consultant psychiatrist responsible for the care and treatment of the patient, and

(iii) review the records relating to the patient,

in order to determine in the interest of the patient whether the patient is suffering from a mental disorder and to report in writing within 14 days on the results of the examination, interview and review to the tribunal to which the matter has been referred and to provide a copy of the report to the legal representative of the patient.

(2) Where the Commission gives a direction under this section, the consultant psychiatrist concerned shall, on presentation by him or her of the direction at the approved centre concerned, be admitted to the centre and allowed to—

( a) examine the patient and the records relating to the patient, and

( b) interview the consultant psychiatrist responsible for the care and treatment of the patient.

(3) If the consultant psychiatrist to whom a direction has been given under this section is unable to examine the patient concerned, he or she shall so notify the Commission in writing and the Commission shall give a direction under subsection (1) to another member of the panel of consultant psychiatrists.

(4) A person who obstructs or interferes or fails to co-operate with a consultant psychiatrist in the performance of his or her functions under this section shall be guilty of an offence.

C12

Prospective affecting provision: subs. (1)(b) substituted by Assisted Decision-Making (Capacity) Act 2015 (64/2015), s. 144(a), not commenced as of date of revision.

( b) F24 [ arrange for the assignment of a legal representative to represent the patient concerned unless he or she proposes to engage one, ]

Editorial Notes:

E12

Previous affecting provisions: transitional provision for unexpired renewal orders, replacement renewal orders and confirmation of expired renewal orders made (30.10.2008) by Mental Health Act 2008 (19/2008), ss. 3, 4 and 5, commenced on enactment. Note also transitional provision in 19/2008, s. 7(2).

Review by a tribunal of admission orders and renewal orders.

18

18.—(1) Where an admission order or a renewal order has been referred to a tribunal under section 17 , the tribunal shall review the detention of the patient concerned and shall either—

( a) if satisfied that the patient is suffering from a mental disorder, and

(i) that the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have been complied with, or

(ii) if there has been a failure to comply with any such provision, that the failure does not affect the substance of the order and does not cause an injustice,

affirm the order, or

( b) if not so satisfied, revoke the order and direct that the patient be discharged from the approved centre concerned.

F25 [ (2) Subject to subsection (4) , a decision under subsection (1) shall be made as soon as may be, but

( a ) in the case of an admission order or a renewal order, not later than 21 days after the making of such order, or

( b ) in the case of an application referred to in section 15(3)(b) , not later than 21 days after the date on which the Commission received the application. ]

(3) Before making a decision under subsection (1), a tribunal shall have regard to the relevant F26 [ reports under section 17(1)(c) and (d) ] .

F27 [ (3A) Subject to subsection (3B) , where section 48(3A) applies, the tribunal concerned shall consult with a consultant psychiatrist, other than the consultant psychiatrists who prepared the reports under section 17(1)(c) and (d) , for the purpose of making a decision under subsection (1) where

( a ) the opinions expressed in the reports under section 17(1)(c) and (d) as to whether the patient is suffering from a mental disorder differ, or

( b ) it otherwise considers that it is necessary in the interest of the patient to do so.

(3B) Subsection (3A) shall not apply where the tribunal is unable, due to the exigencies of the public health emergency, to consult in accordance with that subsection. ]

F26 [ (4) The period referred to in subsection (2) may be extended by order by the tribunal concerned (either of its own motion or at the request of the patient concerned) for a further period of 14 days and thereafter may be further extended by it by order for a period of 14 days

( a ) on the application of the patient if the tribunal is satisfied that it is in the interest of the patient, or

( b ) of its own motion if the tribunal, having due regard to the interest of the patient, is satisfied that it is necessary due to the exigencies of the public health emergency,

and the relevant admission order, or as the case may be, renewal order shall continue in force until the date of the expiration of the order made under this subsection. ]

(5) Notice in writing of a decision under subsection (1) and the reasons therefor shall be given to—

( a) the Commission,

( b) the consultant psychiatrist responsible for the care and treatment of the patient concerned,

( c) the patient and his or her legal representative, and

( d) any other person to whom, in the opinion of the tribunal, such notice should be given.

(6) The notice referred to in subsection (5) shall be given as soon as may be after the decision and within the period specified in subsection (2) or, if it be the case that period is extended by order under subsection (4), within the period specified in that order.

(7) In this section references to an admission order shall include references to the relevant recommendation and the relevant application.

Annotations:

Amendments:

F25

Substituted (8.10.2018) by Mental Health (Renewal Orders) Act 2018 (23/2018), s. 7, S.I. No. 397 of 2018.

F26

Substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 18(a), (c), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F27

Inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 18(b), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

Modifications (not altering text):

C13

Section prior to 30 March 2020 temporarily suspended and subs. (3) amended, subss. (3A), (3B) inserted and subs. (4) substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 18, commenced as per s. 1(2)(b), 3(a), (b), subject to exception in s. 24. The suspended section is reproduced below.

18.—(1) Where an admission order or a renewal order has been referred to a tribunal under section 17 , the tribunal shall review the detention of the patient concerned and shall either—

( a) if satisfied that the patient is suffering from a mental disorder, and

(i) that the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have been complied with, or

(ii) if there has been a failure to comply with any such provision, that the failure does not affect the substance of the order and does not cause an injustice,

affirm the order, or

( b) if not so satisfied, revoke the order and direct that the patient be discharged from the approved centre concerned.

F25 [ (2) Subject to subsection (4) , a decision under subsection (1) shall be made as soon as may be, but

( a ) in the case of an admission order or a renewal order, not later than 21 days after the making of such order, or

( b ) in the case of an application referred to in section 15(3)(b) , not later than 21 days after the date on which the Commission received the application. ]

(3) Before making a decision under subsection (1), a tribunal shall have regard to the relevant report under section 17(1)(c) .

(4) The period referred to in subsection (2) may be extended by order by the tribunal concerned (either of its own motion or at the request of the patient concerned) for a further period of 14 days and thereafter may be further extended by it by order for a period of 14 days on the application of the patient if the tribunal is satisfied that it is in the interest of the patient and the relevant admission order, or as the case may be, renewal order shall continue in force until the date of the expiration of the order made under this subsection.

(5) Notice in writing of a decision under subsection (1) and the reasons therefor shall be given to—

( a) the Commission,

( b) the consultant psychiatrist responsible for the care and treatment of the patient concerned,

( c) the patient and his or her legal representative, and

( d) any other person to whom, in the opinion of the tribunal, such notice should be given.

(6) The notice referred to in subsection (5) shall be given as soon as may be after the decision and within the period specified in subsection (2) or, if it be the case that period is extended by order under subsection (4), within the period specified in that order.

(7) In this section references to an admission order shall include references to the relevant recommendation and the relevant application.

Editorial Notes:

E13

Previous affecting provisions: transitional provision for unexpired renewal orders, replacement renewal orders and confirmation of expired renewal orders made (30.10.2008) by Mental Health Act 2008 (19/2008), ss. 3, 4 and 5, commenced on enactment. Note also transitional provision in 19/2008, s. 7(2).

Appeal to Circuit Court.

19

19.—(1) A patient may appeal to the Circuit Court against a decision of a tribunal to affirm an order made in respect of him or her on the grounds that he or she is not suffering from a mental disorder.

(2) An appeal under this section shall be brought by the patient by notice in writing within 14 days of the receipt by him or her or by his or her legal representative of notice under section 18 of the decision concerned.

(3) The jurisdiction conferred on the Circuit Court by this section may be exercised by the judge of the circuit in which the approved centre concerned is situated or, at the option of the patient, in which the patient is ordinarily resident.

(4) On appeal to it under subsection (1), the Circuit Court shall—

( a) unless it is shown by the patient to the satisfaction of the Court that he or she is not suffering from a mental disorder, by order affirm the order, or

( b) if it is so shown as aforesaid, by order revoke the order.

(5) An order under subsection (4) may contain such consequential or supplementary provisions as the Circuit Court considers appropriate.

(6) Notice of any proceedings under this section shall be served by the person bringing the proceedings on—

( a) the consultant psychiatrist concerned,

( b) the tribunal concerned,

( c) the clinical director of the approved centre concerned, and

( d) any other person specified by the Circuit Court.

(7) Before making an order under this section, the Circuit Court shall have regard to any submission made to it in relation to any matter by or on behalf of a party to the proceedings concerned or any other person on whom notice is served under subsection (6) or any other person having an interest in the proceedings.

(8) The Circuit Court shall exclude from the Court during the hearing of an appeal under this section all persons except officers of the Court, persons directly concerned in the hearing, bona fide representatives of the Press and such other persons (if any) as the Court may in its discretion permit to remain.

(9) No matter likely to lead members of the public to identify a patient who is or has been the subject of proceedings under this section shall be published in a written publication available to the public or be broadcast.

(10) Without prejudice to subsection (8), the Circuit Court may, in any case if satisfied that it is appropriate to do so in the interests of the patient, by order dispense with the prohibitions of that subsection in relation to him or her to such extent as may be specified in the order.

(11) If any matter is published or broadcast in contravention of subsection (8), each of the following persons, namely—

( a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

( b) in the case of any other publication, the person who publishes it, and

( c) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence.

(12) Nothing in this section shall affect the law as to contempt of court.

(13) In this section—

“broadcast” means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;

“written publication” includes a film, a sound track and any other record in permanent form (including a record that is not in a legible form but which is capable of being reproduced in a legible form) but does not include an indictment or other document prepared for use in particular legal proceedings.

(14) In any proceedings under this section a document purporting to be a report prepared pursuant to section 17 concerning a patient shall be evidence of the matters stated in the document without further proof and shall, unless the contrary is proved, be deemed to be such a document.

(15) A notice required by subsection (6) to be served on a person, may be so served—

( a) by delivering it to him or her or to his or her solicitor,

( b) by addressing it to him or her and leaving it at his or her usual or last known residence or place of business or by addressing it to his or her solicitor and leaving it at the solicitor's office,

( c) by sending it by registered post to him or her at his or her usual or last known residence or place of business or to his or her solicitor at the solicitor's office, or

( d) in the case of a body corporate, by delivering it, or sending it by registered post, to the secretary or other officer of the body at its registered or principal office.

(16) No appeal shall lie against an order of the Circuit Court under this section other than an appeal on a point of law to the High Court.

Annotations:

Editorial Notes:

E14

Previous affecting provisions: transitional provision for unexpired renewal orders, replacement renewal orders and confirmation of expired renewal orders made (30.10.2008) by Mental Health Act 2008 (19/2008), ss. 3, 4 and 5, commenced on enactment. Note also transitional provision in 19/2008, s. 7(2).

Application for transfer of patient.

20

20.—(1) Where a patient or the person who applied for a recommendation under which a patient is detained in an approved centre applies to the clinical director of the centre for a transfer of the patient to another approved centre, the clinical director may, if he or she so thinks fit, arrange for the transfer of the patient to the centre with the consent of the clinical director of the second-mentioned approved centre.

(2) Where a patient is transferred to an approved centre under subsection (1), the clinical director of the centre from which he or she has been transferred shall, as soon as may be, give notice in writing of the transfer to the Commission.

(3) A patient may be detained in an approved centre to which he or she has been transferred under subsection (1) until the date of the expiration of the admission order pursuant to which he or she was detained in the centre from which he or she was transferred.

(4) The detention of a patient in another approved centre under this section shall be deemed for the purposes of this Act to be detention in the centre from which he or she was transferred.

(5) In this section references to an admission order include references to a renewal order.

Transfer of patient.

21

21.—(1) Where the clinical director of an approved centre is of opinion that it would be for the benefit of a patient detained in that centre, or that it is necessary for the purpose of obtaining special treatment for such patient, that he or she should be transferred to another approved centre (other than the Central Mental Hospital), the clinical director may arrange for the transfer of the patient to the other centre with the consent of the clinical director of that centre.

(2) ( a)  Where the clinical director of an approved centre—

(i) is of opinion that it would be for the benefit of a patient detained in that centre, or that it is necessary for the purpose of obtaining special treatment for such a patient, to transfer him or her to the Central Mental Hospital, and

(ii) proposes to do so,

he or she shall notify the Commission in writing of the proposal and the Commission shall refer the proposal to a tribunal.

( b)  Where a proposal is referred to a tribunal under this section, the tribunal shall review the proposal as soon as may be but not later than 14 days thereafter and shall either—

(i) if it is satisfied that it is in the best interest of the health of the patient concerned, authorise the transfer of the patient concerned, or

(ii) if it is not so satisfied, refuse to authorise it.

( c)  The provisions of sections 19 and 49 shall apply to the referral of a proposal to a tribunal under this section as they apply to the referral of an admission order to a tribunal under section 17 with any necessary modifications.

( d)  Effect shall not be given to a decision to which paragraph (b) applies before—

(i) the expiration of the time for the bringing of an appeal to the Circuit Court, or

(ii) if such an appeal is brought, the determination or withdrawal thereof.

(3) Where a patient is transferred to an approved centre under this section, the clinical director of the centre from which he or she has been transferred shall, as soon as may be, give notice in writing of the transfer to the Commission.

(4) The detention of a patient in another approved centre under this section shall be deemed for the purposes of this Act to be detention in the centre from which he or she was transferred.

(5) In this section references to an admission order include references to a renewal order.

Transfer of patient to hospital.

22

22.—(1) A clinical director of an approved centre may arrange for the transfer of a patient detained in that centre for treatment to a hospital or other place and for his or her detention there for that purpose.

(2) A patient removed under this section to a hospital or other place may be kept there so long as is necessary for the purpose of his or her treatment and shall then be taken back to the approved centre from which he or she was transferred.

(3) The detention of a patient in a hospital or other place under this section shall be deemed for the purposes of this Act to be detention in the centre from which he or she was transferred.

Power to prevent voluntary patient from leaving approved centre.

23

23.—(1) Where a person (other than a child) who is being treated in an approved centre as a voluntary patient indicates at any time that he or she wishes to leave the approved centre, then, if a consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the approved centre is of opinion that the person is suffering from a mental disorder, he or she may detain the person for a period not exceeding 24 hours or such shorter period as may be prescribed, beginning at the time aforesaid.

(2) Where the parents of a child who is being treated in an approved centre as a voluntary patient, or either of them, or a person acting in loco parentis indicates that he or she wishes to remove the child from the approved centre and a consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the approved centre is of opinion that the child is suffering from a mental disorder, the child may be detained and placed in the custody of F28 [ the Health Service Executive. ]

(3) Where a child is detained in accordance with this section, F28 [ the Health Service Executive ] shall, unless it returns the child to his or her parents, or either of them, or a person acting in loco parentis, make an application under section 25 at the next sitting of the District Court held in the same district court district or, in the event that the next such sitting is not due to be held within 3 days of the date on which the child is placed in the case of F28 [ the Health Service Executive ], at a sitting of the District Court, which has been specially arranged, held within the said 3 days, and the health board shall retain custody of the child pending the hearing of that application.

(4) The provisions of section 13(4) of the Child Care Act, 1991, shall apply to the making of an application in respect of a child to whom this section applies with any necessary modifications.

Annotations:

Amendments:

F28

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 3(a) and (b), S.I. No. 887 of 2004.

Modifications (not altering text):

C14

References to “registered medical practitioner” construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108(1), S.I. No. 231 of 2008.

108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

...

Power to detain voluntary patients.

24

24.—(1) Where a person (other than a child) is detained pursuant to section 23 , the consultant psychiatrist responsible for the care and treatment of the person prior to his or her detention shall either discharge the person or arrange for him or her to be examined by another consultant psychiatrist who is not a spouse F29 [ , civil partner ] or relative of the person.

(2) If, following such an examination, the second-mentioned consultant psychiatrist—

( a) is satisfied that the person is suffering from a mental disorder, he or she shall issue a certificate in writing in a form specified by the Commission stating that he or she is of opinion that because of such mental disorder the person should be detained in the approved centre, or

( b) is not so satisfied, he or she shall issue a certificate in writing in a form specified by the Commission stating that he or she is of opinion that the person should not be detained and the person shall thereupon be discharged.

(3) Where a certificate is issued under subsection (2)(a), the consultant psychiatrist responsible for the care and treatment of the person immediately before his or her detention under section 23 shall make an admission order in a form specified by the Commission for the reception, detention and treatment of the person in the approved centre.

(4) The provisions of sections 15 to 22 shall apply to a person detained under this section as they apply to a person detained under section 14 with any necessary modifications.

(5) For the purpose of carrying out an examination under subsection (2) , the consultant psychiatrist concerned shall be entitled to take charge of the person concerned for the period of 24 hours referred to in section 23 .

(6) References in this section to the consultant psychiatrist responsible for the care and treatment of the person include references to a consultant psychiatrist acting on behalf of the first-mentioned consultant psychiatrist.

Annotations:

Amendments:

F29

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 98(6), S.I. No. 648 of 2010.

Involuntary admission of children.

25

F30 [ 25. (1) Where it appears to the Health Service Executive that

( a ) a child is suffering from a mental disorder, and

( b ) the child requires treatment which he or she is unlikely to receive unless an order is made under this section,

then, the Health Service Executive may make an application to the District Court ( the court ) in the district court district where the child concerned resides or is found for an order authorising the detention of the child in an approved centre. ]

(2) Subject to subsection (3), F31 [ the Health Service Executive ] shall not make an application under subsection (1) unless the child has been examined by a consultant psychiatrist who is not a relative of the child and a report of the results of the examination is furnished to the court by F32 [ the Health Service Executive ].

(3) Where—

( a) the parents of the child, or either of them, or a person acting in loco parentis refuses to consent to the examination of the child, or

( b) following the making of reasonable enquiries by F32 [ the Health Service Executive ], the parents of the child or either of them or a person acting in loco parentis cannot be found by F32 [ the Health Service Executive ],

then, F31 [ the Health Service Executive ] may make an application under subsection (1) without any prior examination of the child by a consultant psychiatrist.

(4) Where F31 [ the Health Service Executive ] makes an application under subsection (1) without any prior examination of the child the subject of the application by a consultant psychiatrtist, the court may, if it is satisfied that there is reasonable cause to believe that the child the subject of the application is suffering from a mental disorder, direct that F32 [ the Health Service Executive ] arrange for the examination of the child by a consultant psychiatrist who is not a relative of the child and that a report of the results of the examination be furnished to the court within such time as may be specified by the court.

(5) Where the court gives a direction under subsection (4), the consultant psychiatrist who carries out an examination of the child the subject of the application shall report to the court on the results of the examination and shall indicate to the court whether he or she is satisfied that the child is suffering from a mental disorder.

(6) Where the court is satisfied having considered the report of the consultant psychiatrist referred to in subsection (1) or the report of the consultant psychiatrist referred to in subsection (5), as the case may be, and any other evidence that may be adduced before it that the child is suffering from a mental disorder, the court shall make an order that the child be admitted and detained for treatment in a specified approved centre for a period not exceeding 21 days.

(7) An application under this section may, if the court is satisfied that the urgency of the matter so requires, be made ex parte.

(8) Between the making of an application for an order under this section and its determination, the court, of its own motion or on the application of any person, may give such directions as it sees fit as to the care and custody of the child who is the subject of the application pending such determination, and any such direction shall cease to have effect on the determination of the application.

(9) Where, while an order under subsection (6) is in force, an application is made to the court by F33 [ the Health Service Executive ] for an extension of the period of detention of the child the subject of the application, the court may order that the child be detained for a further period not exceeding 3 months.

(10) On or before the expiration of the period of detention referred to in subsection (9), a further order of detention for a period not exceeding 6 months may be made by the court on the application of the health board and thereafter for periods not exceeding 6 months.

(11) A court shall not make an order extending the period of detention of a child under this section unless—

F34 [ ( a ) the child has been examined by a consultant psychiatrist who is not a relative of the child and a report of the results of the examination is furnished to the court by the Health Service Executive on the application by it to the court under subsection (9) or (10) , as the case may be, and ]

( b) following consideration by the court of the report, it is satisfied that the child is still suffering from a mental disorder.

(12) Psycho-surgery shall not be performed on a child detained under this section without the approval of the court.

(13) A programme of electro-convulsive therapy shall not be administered to a child detained under this section without the approval of the court.

(14) The provisions of sections 21, 22, 24 to 35, 37 and 47 of the Child Care Act, 1991, shall apply to proceedings under this section as they apply to proceedings under those sections with the modification that references to proceedings or an order under Part III, IV or VI of that Act shall be construed as references to proceedings or an order under this section and with any other necessary modifications.

(15) References in sections 13(7), 18(3) and 19(4) of the Child Care Act, 1991 , to psychiatric examination, treatment or assessment do not include references to treatment under this Act.

Annotations:

Amendments:

F30

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 4(a), S.I. No. 887 of 2004.

F31

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 4(b), S.I. No. 887 of 2004.

F32

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 4(c), S.I. No. 887 of 2004.

F33

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 4(d), S.I. No. 887 of 2004.

F34

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 4(f), S.I. No. 887 of 2004.

Editorial Notes:

E15

The substitution of “the Health Service Executive” for “a health board” in subs. (10) as provided (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 4(e), S.I. No. 887 of 2004 cannot be made as the subsection refers to “the health board”.

Absence with leave.

26

26.—(1) The consultant psychiatrist responsible for the care and treatment of a patient may grant permission in writing to the patient to be absent from the approved centre concerned for such period as he or she may specify in the permission being a period less than the unexpired period provided for in the relevant admission order, the relevant renewal order or the relevant order under section 25 , as the case may be, and the permission may be made subject to such conditions as he or she considers appropriate and so specifies.

(2) Where a patient is absent from an approved centre pursuant to subsection (1), the consultant psychiatrist may, if he or she is of opinion that it is in the interests of the patient to do so, withdraw the permission granted under subsection (1) and direct the patient in writing to return to the approved centre.

(3) In this section “patient” includes a child in respect of whom an order under section 25 is in force.

Absence without leave.

27

27.—(1) Where a patient in respect of whom an admission order, a renewal order or an order under section 25 is in force—

( a) leaves an approved centre without permission under section 26 ,

( b) fails to return to the approved centre in accordance with any direction given under the said section 26 or on the expiration of the period for which absence or leave was permitted under that section, or

( c) fails, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, to comply with any condition specified in section 26 ,

the clinical director of the approved centre concerned may arrange for members of the staff of the centre F35 [ or authorised persons ] to bring the patient back to the approved centre or, if they are unable to do so and the clinical director is of the opinion that there is a serious likelihood of the F36 [ patient ] causing immediate and serious harm to himself or herself or F37 [ to other persons ], the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist F38 [ in such bringing back ] of the person to that centre and the Garda Síochána shall comply with any such request.

(2) A member of the Garda Síochána may for the purposes of this section—

( a) enter if need be by force any dwelling or other premises where he or she has reasonable cause to believe that the patient may be, and

( b) take all reasonable measures necessary for the return of the patient to the approved centre including, where necessary, the detention or restraint of the patient.

(3) In this section “patient” includes a child in respect of whom an order under section 25 is in force.

Annotations:

Amendments:

F35

Inserted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(4)(a), commenced on enactment.

F36

Substituted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(4)(b), commenced on enactment.

F37

Substituted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(4)(c), commenced on enactment.

F38

Substituted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(4)(d), commenced on enactment.

Discharge of patients.

28

28.—(1) Where the consultant psychiatrist responsible for the care and treatment of a patient becomes of opinion that the patient is no longer suffering from a mental disorder, he or she shall by order in a form specified by the Commission revoke the relevant admission order or renewal order, as the case may be, and discharge the patient.

(2) In deciding whether and when to discharge a patient under this section, the consultant psychiatrist responsible for his or her care and treatment shall have regard to the need to ensure:

( a) that the patient is not inappropriately discharged, and

( b) that the patient is detained pursuant to an admission order or a renewal order only for so long as is reasonably necessary for his or her proper care and treatment.

(3) Where a consultant psychiatrist discharges a patient under this section, he or she shall give to the patient concerned and his or her legal representative a notice in a form specified by the Commission to the effect that he or she—

( a) is being discharged pursuant to this section,

( b) is F39 [ entitled, subject to subsection (6) , ] to have his or her detention reviewed by a tribunal in accordance with the provisions of section 18 or, where such review has commenced, completed in accordance with that section if he or she so indicates by notice in writing addressed to the Commission within 14 days of the date of his or her discharge.

(4) Where a consultant psychiatrist discharges a patient under this section, he or she shall cause copies of the order made under subsection (1) and the notice referred to in subsection (3) to be given to the Commission and, where appropriate, F40 [ the Health Service Executive ] and housing authority.

(5) Where a patient is discharged under this section—

( a) if a review under section 18 has then commenced, it shall be discontinued unless the patient requests by notice in writing addressed to the Commission within 14 days of his or her discharge that it be completed, or

( b) if such a review has not then commenced, it shall not be held unless the patient indicates by notice in writing addressed to the Commission within 14 days of his or her discharge that he or she wishes such a review to be held,

and, if he or she requests that a review under section 18 be completed or held, as the case may be, the provisions of F39 [ sections 17 to 19 shall, subject to subsection (6) , ] apply in relation to the review with any necessary modifications.

F41 [ (6) In the case of a review to which subsection (5) applies

( a ) subsections (2) and (4) of section 18 shall not apply, and

( b ) a decision under section 18(1) shall be made as soon as is reasonably practicable having regard to

(i) the exigencies of the public health emergency, and

(ii) the need for the tribunal to afford priority to reviews relating to patients who are being detained pursuant to an admission order or a renewal order. ]

Annotations:

Amendments:

F39

Substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 19(a), (b), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F40

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 5, S.I. No. 887 of 2004.

F41

Inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 19(c), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

Modifications (not altering text):

C15

Section prior to 30 March 2020 temporarily suspended and subs. (3)(b), (5) amended and subs. (6) inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 19, commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24. The suspended section is reproduced below.

28.—(1) Where the consultant psychiatrist responsible for the care and treatment of a patient becomes of opinion that the patient is no longer suffering from a mental disorder, he or she shall by order in a form specified by the Commission revoke the relevant admission order or renewal order, as the case may be, and discharge the patient.

(2) In deciding whether and when to discharge a patient under this section, the consultant psychiatrist responsible for his or her care and treatment shall have regard to the need to ensure:

( a) that the patient is not inappropriately discharged, and

( b) that the patient is detained pursuant to an admission order or a renewal order only for so long as is reasonably necessary for his or her proper care and treatment.

(3) Where a consultant psychiatrist discharges a patient under this section, he or she shall give to the patient concerned and his or her legal representative a notice in a form specified by the Commission to the effect that he or she—

( a) is being discharged pursuant to this section,

( b) is entitled to have his or her detention reviewed by a tribunal in accordance with the provisions of section 18 or, where such review has commenced, completed in accordance with that section if he or she so indicates by notice in writing addressed to the Commission within 14 days of the date of his or her discharge.

(4) Where a consultant psychiatrist discharges a patient under this section, he or she shall cause copies of the order made under subsection (1) and the notice referred to in subsection (3) to be given to the Commission and, where appropriate, F40 [ the Health Service Executive ] and housing authority.

(5) Where a patient is discharged under this section—

( a) if a review under section 18 has then commenced, it shall be discontinued unless the patient requests by notice in writing addressed to the Commission within 14 days of his or her discharge that it be completed, or

( b) if such a review has not then commenced, it shall not be held unless the patient indicates by notice in writing addressed to the Commission within 14 days of his or her discharge that he or she wishes such a review to be held,

and, if he or she requests that a review under section 18 be completed or held, as the case may be, the provisions of sections 17 to 19 shall apply in relation to the review with any necessary modifications.

Voluntary admission to approved centres.

29

29.—Nothing in this Act shall be construed as preventing a person from being admitted voluntarily to an approved centre for treatment without any application, recommendation or admission order rendering him or her liable to be detained under this Act, or from remaining in an approved centre after he or she has ceased to be so liable to be detained.

Penalties under Part 2

30

30.—A person guilty of an offence under this Part shall be liable on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

Annotations:

Editorial Notes:

E16

The Euro equivalent of £1,5000 is €1,905. This translates into a Class C fine as provided (4.01.2011) by Fines Act 2010 (8/2010), s. 6(2) and table ref. no. 1, S.I. No. 662 of 2010. A class C fine is not greater than €2,500.

PART 3

Independent Review of Detention

Annotations:

Modifications (not altering text):

C16

Application of Part extended (17.10.2016) by Assisted Decision-Making (Capacity) Act 2015 (64/2015), s. 98(1), S.I. No. 515 of 2016.

Staff of Director of the Decision Support Service

98. (1) A person who is a member of the staff of the Director shall be a member of the staff of the Mental Health Commission and the provisions of Part 3 of the Act of 2001 shall apply to such staff.

...

Establishment day.

31

31.—The Minister may be order appoint a day to be the establishment day for the purposes of this Part.

Annotations:

Editorial Notes:

E17

Power pursuant to section exercised (5.04.2002) by Mental Health Act 2001 (Establishment Day) Order 2002 (S.I. No. 91 of 2002), in effect as per art. 2.

Establishment of Mental Health Commission.

32

32.—(1) On the establishment day there shall stand established a commission to be known as the Mental Health Commission (referred to in this Act as “the Commission”) to perform the functions conferred on it by this Act.

(2) The Commission shall be a body corporate with perpetual succession and an official seal and it shall have the power to sue and may be sued in its corporate name and to acquire, hold and dispose of land or an interest in land and to acquire, hold and dispose of any other property.

(3) The Commission shall, subject to the provisions of this Act, be independent in the exercise of its functions.

Functions of Commission.

33

33.—(1) The principal functions of the Commission shall be to promote, encourage and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services and to take all reasonable steps to protect the interests of persons detained in approved centres under this Act.

(2) The Commission shall undertake or arrange to have undertaken such activities as it deems appropriate to foster and promote the standards and practices referred to in subsection (1).

(3) Without prejudice to the generality of the foregoing, the Commission shall—

( a) appoint persons to be members of tribunals and provide staff and facilities for the tribunals,

( b) establish a panel of consultant psychiatrists to carry out independent medical examinations under section 17 ,

( c) make or arrange for the making, with the consent of the Minister and the Minister for Finance, of a scheme or schemes for the granting by the Commission of legal aid to patients,

( d) furnish, whenever it so thinks fit or is so requested by the Minister, advice to the Minister in relation to any matter connected with the functions or activities of the Commission,

( e) prepare and review periodically, after consultation with such bodies as it considers appropriate, a code or codes of practice for the guidance of persons working in the mental health services.

(4) The Commission shall have all such powers as are necessary or expedient for the purposes of its functions.

Annotations:

Amendments:

F42

Deleted by Assisted Decision-Making (Capacity) Act 2015 (64/2015), s. 144(b), not commenced as of date of revision.

Modifications (not altering text):

C17

Prospective affecting provision: subs. (3)(c) deleted by Assisted Decision-Making (Capacity) Act 2015 (64/2015), s. 144(b), not commenced as of date of revision.

( c) F42 [ ]

C18

Function under subs. (3)(c) transferred and reference to “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

...

...

...

No. 25 of 2001

Mental Health Act 2001

Sections 33(3)(c), 44, 48(8), 50(3) and 54(4) and (5)

...

...

...

Conferral of additional functions on Commission.

34

34.—(1) The Minister may, if he or she so thinks fit, by order—

( a) confer on the Commission such additional functions connected with the functions for the time being of the Commission or the services or activities that the Commission is authorised for the time being to provide or carry on as he or she considers appropriate, and

( b) make such provision as he or she considers necessary or expedient in relation to matters ancillary to or arising out of the conferral on the Commission of functions under this section or the performance by the Commission of functions so conferred.

(2) The Minister may by order amend or revoke an order under this section (including an order under this subsection).

Membership of Commission.

35

35.—(1) The Commission shall consist of 13 members who shall be appointed to be members of the Commission by the Minister.

(2) Of the members of the Commission—

( a) one shall be a person who has had not less than 10 years' experience as a practising barrister or solicitor in the State ending immediately before his or her appointment to the Commission,

( b) 3 shall be representative of registered medical practitioners (of which 2 shall be consultant psychiatrists) with a special interest in or expertise in relation to the provision of mental health services,

( c) 2 shall be representative of registered nurses whose names are entered in the division applicable to psychiatric nurses in the register of nurses maintained by An Board Altranais under section 27 of the Nurses Act, 1985,

( d) one shall be representative of social workers with a special interest in or expertise in relation to the provision of mental health services,

( e) one shall be representative of psychologists with a special interest in or expertise in relation to the provision of mental health services,

( f) one shall be representative of the interest of the general public,

( g) 3 shall be representative of voluntary bodies promoting the interest of persons suffering from mental illness (at least 2 of whom shall be a person who is suffering from or has suffered from mental illness),

F43 [ ( h ) one shall be an employee of the Health Service Executive nominated by the Executive, ]

( i) not less than 4 shall be women and not less than 4 shall be men.

(3) The members of the Commission appointed pursuant to subsection (2)(b) shall be persons nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative of such medical practitioners.

(4) The members of the Commission appointed pursuant to subsection (2)(c) shall be persons nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative of such nurses.

(5) The member of the Commission appointed pursuant to subsection (2)(d) shall be a person nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative of such social workers.

(6) The member of the Commission appointed pursuant to subsection (2)(e) shall be a person nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative of such psychologists.

(7) The members of the Commission appointed pursuant to subsection (2)(g) shall be persons nominated for appointment thereto by such organisation or organisations as the Minister considers to be representative of such voluntary bodies.

Annotations:

Amendments:

F43

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 6, S.I. No. 887 of 2004.

Terms of office of members of Commission.

36

36.—(1) A member of the Commission shall hold office for such period not exceeding 5 years and on such other terms as the Minister may determine.

(2) A member of the Commission may resign his or her membership by letter addressed to the Minister and the resignation shall take effect from the date specified therein or upon receipt of the letter by the Minister, whichever is the later.

(3) Each member of the Commission shall be paid such remuneration (if any) and allowances for expenses incurred by him or her (if any) as the Minister may, with the consent of the Minister for Finance, determine.

(4) A member of the Commission may at any time be removed from membership of the Commission by the Minister if, in the Minister's opinion, the member has become incapable of performing his or her functions, or has committed stated misbehaviour, or his or her removal appears to the Minister to be necessary for the effective performance by the Commission of its functions.

(5) (a)  If a member of the Commission dies, resigns, becomes disqualified or is removed from office, the Minister may appoint a person to be a member of the Commission to fill the casual vacancy so occasioned and the person so appointed shall be appointed in the same manner as the member of the Commission who occasioned the casual vacancy.

(b)  Subject to the other provisions of this section, a person appointed to be a member of the Commission by virtue of this paragraph shall hold office for the remainder of the term of office of the member who occasioned the casual vacancy he or she is appointed to fill.

(6) A member of the Commission shall be disqualified for holding and shall cease to hold office if he or she is adjudged bankrupt or makes a composition or arrangement with creditors or is sentenced by a court of competent jurisdiction to a term of imprisonment or penal servitude.

(7) A member of the Commission whose period of membership expires by the effluxion of time shall be eligible for re-appointment as a member of the Commission.

Chairperson of Commission.

37

37.—(1) The Minister shall appoint a member of the Commission to be chairperson of the Commission.

(2) Where the chairperson of the Commission ceases to be a member of the Commission he or she shall also thereupon cease to be chairperson of the Commission.

(3) The chairperson of the Commission may at any time resign his or her office as chairperson by letter sent to the Minister and the resignation shall, unless previously withdrawn in writing, take effect at the commencement of the meeting of the Commission held next after the Commission has been informed by the Minister of the resignation.

(4) The chairperson of the Commission shall, unless he or she sooner dies or otherwise ceases to be chairperson by virtue of subsection (2) or (3), hold office until the expiration of his or her period of membership of the Commission but, if he or she is re-appointed as a member of the Commission, he or she shall be eligible for re-appointment as chairperson of the Commission.

(5) The chairperson of the Commission shall be paid such remuneration (if any) and such allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.

Chief Executive of Commission.

38

38.—(1) There shall be a chief executive officer of the Commission who shall be known and is referred to in this Act, as “the Chief Executive”.

(2) The Commission shall appoint the Chief Executive and may, for stated reasons, remove him or her from office with the consent of the Minister.

(3) The Chief Executive shall carry on and manage and control generally the administration and business of the Commission and shall perform such other (if any) functions as may be determined by the Commission.

(4) The Chief Executive shall hold office for such term and upon and subject to such other terms and conditions (including terms and conditions relating to remuneration) as may be determined by the Minister after consultation with the Commission and with the consent of the Minister for Finance.

(5) The Commission shall act through, and its functions shall be performed in the name of the Commission by, the Chief Executive or another officer of the Commission duly authorised in that behalf by the Chief Executive.

(6) In this section “remuneration” includes allowances for expenses, benefits-in-kind and superannuation.

(7) The Chief Executive may make proposals to the Commission on any matter relating to its activities.

(8) The Chief Executive shall devote the whole of his or her time to his or her duties as Chief Executive and shall not hold any other office or position without the consent of the Commission.

(9) The Chief Executive shall not be a member of the Commission.

Staff of Commission.

39

39.—(1) The Commission may appoint such and such number of persons to be members of the staff of the Commission as it may determine with the consent of the Minister and the Minister for Finance.

(2) The Commission may appoint such and such number of its staff as it considers necessary to assist the Inspector in the performance of his or her functions.

(3) ( a)  A member of the staff of the Commission (other than the Chief Executive) shall be paid out of moneys at the disposal of the Commission, such remuneration and allowances for expenses incurred by him or her as the Commission may, with the consent of the Minister and the Minister for Finance, determine.

( b)  A member of the staff of the Commission shall hold his or her office or employment on such other terms and conditions as the Commission may, with the consent of the Minister and the Minister for Finance, determine.

(4) The grades of the staff of the Commission and the numbers of staff in each grade shall be determined by the Commission with the consent of the Minister and the Minister for Finance.

Superannuation of staff of Commission.

40

40.—(1) The Commission shall prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to or in respect of such members of the staff of the Commission as it may think fit.

(2) Every such scheme shall fix the time and conditions of retirement for all persons to or in respect of whom superannuation benefits are payable under the scheme or schemes and different times and conditions may be fixed in respect of different classes of persons.

(3) Every such scheme may be amended or revoked by a subsequent scheme prepared, submitted and approved under this section.

(4) A scheme submitted by the Commission under this section shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the Commission in accordance with its terms.

(5) No superannuation benefit shall be granted by the Commission nor shall any other arrangements be entered into by the Commission for the provision of such a benefit to or in respect of a member of the staff of the Commission otherwise than in accordance with a scheme under this section or with the consent of the Minister and the Minister for Finance.

(6) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final.

(7) A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Annotations:

Editorial Notes:

E18

Power pursuant to section exercised (3.03.2017) by Mental Health Commission Superannuation Scheme 2017 (S.I. No. 66 of 2017), in effect as per art. 1(2).

Borrowing by Commission.

41

41.—The Commission may, for the purpose of providing for current or capital expenditure, from time to time, borrow money (whether on the security of the assets of the Commission or otherwise), including money in a currency other than the currency of the State, but shall not do so without the consent of the Minister and the Minister for Finance.

Annotations:

Modifications (not altering text):

C19

Functions under section transferred (6.07.2011) by Ministers and Secretaries (Amendment) Act 2011 (10/2011), ss. 9(1) and (2), 20(1), and sch. 2 part 1, in effect as per S.I. No. 401 of 2011.

Transfer of certain other functions to Minister.

9.— (1) ( a) Subject to paragraph (b) , the following functions of the Minister for Finance are transferred to the Minister, except in so far as they consist of the power to pay moneys out of the Central Fund:

(i) all functions (including functions conferred by or under statute) relating to superannuation, remuneration (including allowances and expenses), appointment and terms and conditions of service of members of staff of public service bodies;

(ii) all functions (including functions conferred by or under statute) relating to remuneration (including fees, allowances and expenses), appointment and terms and conditions of service of members, or members of boards, of public service bodies;

(iii) the functions consisting of the sanctioning or approval of expenses incurred in the administration of any statute;

(iv) ...

( b) This subsection shall not effect the transfer to the Minister of functions of the Minister for Finance consisting of the superannuation or remuneration of members, members of boards, or members of staff of a body to which section 21 applies.

(2) The functions conferred on the Minister for Finance by or under any of the provisions specified in Part 1 of Schedule 2 are transferred to the Minister.

...

Performance of certain functions transferred to Minister by section 9.

20.— (1) The Minister shall not perform a function transferred by subsection (2) of section 9 without the consent of the Minister for Finance.

...

SCHEDULE 2

Functions Transferred To Minister

PART 1

Functions performable with consent of Minister for Finance

STATUTES

Number and Year

(1)

Short Title

(2)

Provision

(3)

...

...

...

No. 25 of 2001

Mental Health Act 2001

Section 41

...

...

...

Reports and information to Minister.

42

42.—(1) As soon as may be after the end of each year beginning with the year in which the establishment day falls, but not later than 6 months thereafter, the Commission shall prepare and submit a report in writing to the Minister of its activities during that year and not later than one month after such submission, the Minister shall cause copies thereof to be laid before each House of the Oireachtas.

(2) A report under subsection (1) shall include the report of the Inspector under section 51 and other information in such form and regarding such matters as the Minister may direct.

(3) The Commission shall, whenever so requested by the Minister, furnish to the Minister information in relation to such matters as he or she may specify concerning or relating to the scope of its activities, or in respect of any account prepared by the Commission or any report specified in subsection (1) or in section 55 .

(4) The Commission shall, not later than 18 months after the commencement of Part 2, prepare and submit a report in writing to the Minister on the operation of that Part together with any findings, conclusions or recommendations concerning such operation as it considers appropriate.

(5) The Commission may publish such other reports on matters related to its activities and functions, as it may from time to time consider relevant and appropriate.

Membership of either House of Oireachtas or European Parliament.

43

43.—(1) Where a member of the Commission is—

( a) nominated as a member of Seanad Éireann, or

( b) elected as a member of either House of the Oireachtas or to the European Parliament, or

( c) regarded, pursuant to section 19 of the European Parliament Elections Act, 1997 , as having been elected to the European Parliament to fill a vacancy,

he or she shall thereupon cease to be a member of the Commission.

(2) Where a person employed by the Commission is—

( a) nominated as a member of Seanad Éireann, or

( b) elected as a member of either House of the Oireachtas or to the European Parliament, or

( c) regarded, pursuant to the said section 19, as having been elected to the European Parliament to fill a vacancy,

he or she shall thereupon stand seconded from his or her employment with the Commission and shall not be paid by, or be entitled to receive from, the Commission any remuneration or allowances in respect of the period commencing on such nomination or election, or when he or she is so regarded as having been elected (as the case may be), and ending when he or she ceases to be a member of either such House or such Parliament.

(3) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified for becoming a member of the Commission or for employment in any capacity by the Commission.

(4) Without prejudice to the generality of subsection (2), that subsection shall be construed as prohibiting, among other things, the reckoning of a period therein mentioned as service with the Commission for the purpose of any pensions, gratuities or other allowances payable on resignation, retirement or death.

Grants to Commission.

44

44.—The Minister may, in each financial year, after consultation with the Commission in relation to its proposed work programme and expenditure for that year, make grants of such amount as may be sanctioned by the Minister for Finance out of moneys provided by the Oireachtas towards the expenditure incurred by the Commission in the performance of its functions.

Annotations:

Modifications (not altering text):

C20

Function transferred and reference to “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

...

...

...

No. 25 of 2001

Mental Health Act 2001

Sections 33(3)(c), 44, 48(8), 50(3) and 54(4) and (5)

...

...

...

Gifts.

45

45.—(1) The Commission may accept gifts of money, land or other property, upon such trusts or conditions, if any, as may be specified by the donor.

(2) The Commission shall not accept a gift if the trusts or conditions attached to it would be inconsistent with its functions.

(3) Any funds of the Commission which are a gift or the proceeds of a gift to it may, subject to any terms or conditions of the gift, be invested by the Commission in any manner in which a trustee is empowered by law to invest trust funds.

Seal of Commission.

46

46.—(1) The Commission shall, as soon as may be after its establishment, provide itself with a seal.

(2) The seal of the Commission shall be authenticated by the signature of its chairperson or another member of the Commission authorised by it to act in that behalf and by the signature of an officer of the Commission authorised by it to act in that behalf.

(3) Judicial notice shall be taken of the seal of the Commission and every document purporting to be an instrument made by the Commission and to be sealed with the seal (purporting to be authenticated in accordance with subsection (2)) of the Commission shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown.

Accounts and audits of Commission.

47

47.—(1) The Commission shall submit estimates of income and expenditure to the Minister in such form, in respect of such periods, and at such times as may be required by him or her and shall furnish to the Minister any information which he or she may require in relation to such estimates.

(2) A financial year of the Commission shall be a period of 12 months ending on the 31st day of December in any year, and for the purposes of this provision, the period commencing on the date of the commencement of this section and ending on the 31st day of December next after such commencement shall be deemed to be a financial year of the Commission.

(3) The Commission shall cause to be kept on a continuous basis proper books of account of all income and expenditure of the Commission, and of the sources of such income and the subject matter of such expenditure, and of the property, assets and liabilities of the Commission and shall keep all such special accounts as the Minister may from time to time direct.

(4) The Commission and the officers thereof, shall, whenever so requested by the Minister, permit any person appointed by him or her to examine the books and accounts of the Commission in respect of any financial year or other period and shall facilitate any such examination, and the Commission shall pay such fee therefor as may be fixed by the Minister.

(5) ( a)  The accounts of the Commission for each year shall be prepared in such form and manner as may be specified by the Minister.

( b)  The accounts shall be submitted as soon as may be but not later than 3 months after the end of the financial year to which they relate by the Commission to the Comptroller and Auditor General for audit.

( c)  A copy of the accounts and the auditor's report thereon shall be presented to the members of the Commission and to the Minister as soon as may be after the end of the financial year to which they relate and the Minister shall cause a copy of the documents aforesaid to be laid before each House of the Oireachtas.

(6) The Chief Executive shall be the accountable person in relation to the accounts of the Commission and shall, whenever he or she is so required by a Committee of Dáil Éireann established under Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on—

( a) the regularity and propriety of the transactions recorded or required to be recorded in any account subject to audit by the Comptroller and Auditor General which the Chief Executive or the Commission is required by or under statute to prepare,

( b) the economy and efficiency of the Commission in the use of its resources,

( c) the systems, procedures and practices employed by the Commission for the purpose of evaluating the effectiveness of its operations, and

( d) any matter affecting the Commission referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act, 1993 , or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(7) In the performance of his or her duties under this section, the Chief Executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

(8) The Freedom of Information Act, 1997, shall apply to the Commission.

Mental Health Tribunals.

48

48.—(1) The Commission shall from time to time appoint one or more tribunals which or each of which shall be known as a Mental Health Tribunal (in this Act referred to as “a tribunal”) to determine such matter or matters as may be referred to it by the Commission under section 17 .

(2) A tribunal shall consist of 3 members.

(3) Of the members of a tribunal—

( a) one shall be a consultant psychiatrist,

( b) one shall be a practising barrister or solicitor who has had not less than 7 years' experience as a practising barrister or solicitor ending immediately before such appointment who shall be the Chairperson of the tribunal, and

( c) one shall be a person other than a person referred to in paragraphs ( a) or ( b) or a registered medical practitioner or a registered nurse.

F44 [ (3A) Notwithstanding subsections (2) and (3) , where it appears to the Commission that, due to the exigencies of the public health emergency, a tribunal cannot be appointed in accordance with those subsections, it may appoint a tribunal consisting of one member who shall be a practising barrister or solicitor who has had not less than 7 years experience as a practising barrister or solicitor ending immediately before such appointment.

(3B) Where subsection (3A) applies

( a ) subsection (4) shall not have effect, and

( b ) the reference in subsection (8) to each member of the tribunal shall be construed as a reference to the member of the tribunal. ]

(4) At a sitting of a tribunal, each member of the tribunal shall have a vote and every question shall be determined by a majority of the votes of the members.

(5) A member of the Commission shall be disqualified for membership of a tribunal.

(6) A member of a tribunal shall hold office for such period not exceeding 3 years and on such other terms and conditions as the Commission may determine when appointing him or her.

(7) A member of a tribunal may resign his or her membership by letter addressed to the Commission and the resignation shall take effect from a date specified therein or upon receipt of the letter by the Commission, whichever is the later.

(8) Each member of a tribunal shall be paid, such remuneration (if any) and allowances for expenses incurred by him or her (if any) as the Commission may, with the consent of the Minister and the Minister for Finance, determine.

(9) A member of a tribunal may at any time be removed from membership of the tribunal by the Commission if, in the Commission's opinion, the member has become incapable through ill-health of performing his or her functions, or has committed stated misbehaviour, or his or her removal appears to the Commission to be necessary for the effective performance by the tribunal of its functions.

(10) A member of a tribunal shall be disqualified for holding and shall cease to hold office if he or she is adjudged bankrupt or makes a composition or arrangement with creditors or is sentenced by a court of competent jurisdiction to a term of imprisonment or penal servitude.

(11) A member of a tribunal whose period of membership expires by the effluxion of time shall be eligible for re-appointment as a member of a tribunal.

(12) In this section “consultant psychiatrist” includes a person who was employed as a consultant psychiatrist by F45 [ the Health Service Executive ] or an approved centre not more than 7 years before his or her appointment under this section.

Annotations:

Amendments:

F44

Inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 20, commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F45

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 72 and sch. 7, part 12, item 7, S.I. No. 887 of 2004.

Modifications (not altering text):

C21

Function under subs. (8) transferred and reference to “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

...

...

...

No. 25 of 2001

Mental Health Act 2001

Sections 33(3)(c), 44, 48(8), 50(3) and 54(4) and (5)

...

...

...

C22

References to “registered medical practitioner” construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108(1), S.I. No. 231 of 2008.

108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

...

Powers of tribunals.

49

49.—(1) A tribunal shall hold sittings for the purpose of a review by it under this Act and at the sittings may receive submissions and such evidence as it thinks fit.

(2) A tribunal may, for the purposes of the functions of the tribunal—

( a) F46 [ ]

( b) F46 [ ]

( c) F46 [ ]

F47 [ ( ca ) direct in writing any person, whose attendance before the tribunal would, but for the exigencies of the public health emergency, be ordinarily required, to provide a written statement to the tribunal on such matters as may be specified in the direction, ]

( d) direct in writing any person to send to the tribunal any document or thing in his or her possession or power specified in the direction, and

( e) give any other directions for the purpose of the proceedings concerned that appear to the tribunal to be reasonable and just.

(3) F46 [ ]

(4) A person who—

( a) F46 [ ]

( b) F46 [ ]

( c) fails or refuses to send to the tribunal any document or thing legally required by the tribunal under paragraph (d) of subsection (2) to be sent to it by the person or without just cause or excuse disobeys a direction under F48 [ paragraph (ca) , (d) or (e) ] of that subsection, or

( d) does any other thing in relation to the proceedings before the tribunal which, if done in relation to proceedings before a court by a witness in the court, would be contempt of that court,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

(5) If a person gives false evidence before a tribunal in such circumstances that, if he or she had given the evidence before a court, he or she would be guilty of perjury, he or she shall be guilty of that offence.

(6) The procedure of a tribunal in relation to a review by it under this Act shall, subject to the provisions of this Act, be such as shall be determined by the tribunal and the tribunal shall, without prejudice to the generality of the foregoing, make provision for—

( a) notifying the consultant psychiatrist responsible for the care and treatment of the patient the subject of the review and the patient or his or her legal representative of the F48 [ date and time ] of the relevant sitting of the tribunal,

( b) giving the patient the subject of the review or his or her legal representative a copy of any report furnished to the tribunal under section 17 and an indication in writing of the nature and source of any information relating to the matter which has come to notice in the course of the review,

F48 [ ( c ) enabling the patient the subject of the review to present his or her case to the tribunal by way of representations in writing made by the patient or his or her legal representative, ]

( d) enabling written statements to be admissible as evidence by the tribunal with the consent of the patient the subject of the review or his or her legal representative,

( e) enabling any signature appearing on a document produced before the tribunal to be taken, in the absence of evidence to the contrary, to be that of the person whose signature it purports to be,

( f) F46 [ ]

( g) F46 [ ]

( h) F46 [ ]

( i) F46 [ ]

( j) the making of a sufficient record of the proceedings of the tribunal.

(7) A witness whose evidence has been, is being or is to be given before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a witness in a court.

(8) A legal representative appearing before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a legal representative in a court.

(9) Sittings of a tribunal for the purposes of an investigation by it under this Act shall be held in private.

(10) The following shall be absolutely privileged:

( a) documents of the tribunal and documents of its members connected with the tribunal or its functions, wherever published,

( b) reports of the tribunal, wherever published,

( c) statements made in any form at meetings or sittings of the tribunal by its members or officials and such statements wherever published subsequently.

(11) F46 [ ]

F47 [ (12) Where section 48(3A) applies, the Commission shall, on the request of the tribunal, appoint a consultant psychiatrist with whom the tribunal may, on the date on which the tribunal is sitting and for the purposes of the review concerned, consult. ]

Annotations:

Amendments:

F46

Suspended (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 23(b), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F47

Inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 21(a), (d), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F48

Substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 21(b), (c)(i), (ii), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

Modifications (not altering text):

C23

Section prior to 30 March 2020 temporarily suspended and subs. (2)(ca) inserted, subss. (4)(c), (6)(a) amended, (6)(c) substituted, subs. (12) inserted, and subss. 2(a), (b), (c), 4(a), (b), (6)(f), (g), (h), (i) and (11) suspended (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), ss. 21, 23(b), commenced as per s. 1(2)(b), 3(a), (b), subject to exception in s. 24. The suspended section is reproduced below.

49.—(1) A tribunal shall hold sittings for the purpose of a review by it under this Act and at the sittings may receive submissions and such evidence as it thinks fit.

(2) A tribunal may, for the purposes of the functions of the tribunal—

( a) subject to subsection (11), direct in writing the consultant psychiatrist responsible for the care and treatment of a patient the subject of the review concerned to arrange for the patient to attend before the tribunal on a date and at a time and place specified in the direction,

( b) direct in writing any person whose evidence is required by the tribunal to attend before the tribunal on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or power specified in the direction,

( c) direct any person in attendance before the tribunal to produce to the tribunal any document or thing in his or her possession or power specified in the direction,

( d) direct in writing any person to send to the tribunal any document or thing in his or her possession or power specified in the direction, and

( e) give any other directions for the purpose of the proceedings concerned that appear to the tribunal to be reasonable and just.

(3) The reasonable expenses of witnesses directed under subsection (2)(b) to attend before a tribunal shall be paid by the Commission out of moneys at the disposal of the Commission.

(4) A person who—

( a) having been directed under subsection (2) to attend before a tribunal and, in the case of a person so directed under paragraph (b) of that subsection, having had tendered to him or her any sum in respect of the expenses of his or her attendance which a witness summoned to attend before the High Court would be entitled to have tendered to him or her, without just cause or excuse disobeys the direction,

( b) being in attendance before a tribunal pursuant to a direction under paragraph (b) of subsection (2), refuses to take the oath on being required by the tribunal to do so or refuses to answer any question to which the tribunal may legally require an answer or to produce any document or thing in his or her possession or power legally required by the tribunal to be produced by the person,

( c) fails or refuses to send to the tribunal any document or thing legally required by the tribunal under paragraph (d) of subsection (2) to be sent to it by the person or without just cause or excuse disobeys a direction under paragraph (c), (d) or (e) of that subsection, or

( d) does any other thing in relation to the proceedings before the tribunal which, if done in relation to proceedings before a court by a witness in the court, would be contempt of that court,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

(5) If a person gives false evidence before a tribunal in such circumstances that, if he or she had given the evidence before a court, he or she would be guilty of perjury, he or she shall be guilty of that offence.

(6) The procedure of a tribunal in relation to a review by it under this Act shall, subject to the provisions of this Act, be such as shall be determined by the tribunal and the tribunal shall, without prejudice to the generality of the foregoing, make provision for—

( a) notifying the consultant psychiatrist responsible for the care and treatment of the patient the subject of the review and the patient or his or her legal representative of the date, time and place of the relevant sitting of the tribunal,

( b) giving the patient the subject of the review or his or her legal representative a copy of any report furnished to the tribunal under section 17 and an indication in writing of the nature and source of any information relating to the matter which has come to notice in the course of the review,

( c) subject to subsection (11), enabling the patient the subject of the review and his or her legal representative to be present at the relevant sitting of the tribunal and enabling the patient the subject of the review to present his or her case to the tribunal in person or through a legal representative,

( d) enabling written statements to be admissible as evidence by the tribunal with the consent of the patient the subject of the review or his or her legal representative,

( e) enabling any signature appearing on a document produced before the tribunal to be taken, in the absence of evidence to the contrary, to be that of the person whose signature it purports to be,

( f) the examination by or on behalf of the tribunal and the cross-examination by or on behalf of the patient the subject of the review concerned (on oath or otherwise as it may determine) of witnesses before the tribunal called by it,

( g) the examination by or on behalf of the patient the subject of the review and the cross-examination by or on behalf of the tribunal (on oath or otherwise as the tribunal may determine), of witnesses before the tribunal called by the patient the subject of the review,

( h) the determination by the tribunal whether evidence at the tribunal should be given on oath,

( i) the administration by the tribunal of the oath to witnesses before the tribunal, and

( j) the making of a sufficient record of the proceedings of the tribunal.

(7) A witness whose evidence has been, is being or is to be given before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a witness in a court.

(8) A legal representative appearing before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a legal representative in a court.

(9) Sittings of a tribunal for the purposes of an investigation by it under this Act shall be held in private.

(10) The following shall be absolutely privileged:

( a) documents of the tribunal and documents of its members connected with the tribunal or its functions, wherever published,

( b) reports of the tribunal, wherever published,

( c) statements made in any form at meetings or sittings of the tribunal by its members or officials and such statements wherever published subsequently.

(11) A patient shall not be required to attend before a tribunal under this section if, in the opinion of the tribunal, such attendance might be prejudicial to his or her mental health, well-being or emotional condition.

Editorial Notes:

E19

The Euro equivalent of £1,5000 mentioned in subs. (4) is €1,905. This translates into a Class C fine as provided (4.01.2011) by Fines Act 2010 (8/2010), s. 6(2) and table ref. no. 1, S.I. No. 662 of 2010. A class C fine is not greater than €2,500.

Inspector of Mental Health Services.

50

50.—(1) There is hereby established the office of Inspector of Mental Health Services and the holder of the office shall be known as the Inspector of Mental Health Services and is referred to in this Act as “the Inspector”.

(2) The Commission shall from time to time appoint a consultant psychiatrist to be the Inspector.

(3) The Inspector shall be paid such remuneration and allowances for expenses as the Commission may, with the consent of the Minister and the Minister for Finance, from time to time determine.

(4) The Inspector shall hold office for such period and upon and subject to such terms and conditions as the Commission may determine.

(5) References in any Act of the Oireachtas passed before the commencement of this section or in any instrument made before the commencement of this section, under such an Act of the Oireachtas to the Inspector of Mental Hospitals shall, on and after such commencement, be construed as references to the Inspector.

(6) Anything commenced by the Inspector of Mental Hospitals before the commencement of this section may be carried on and completed on or after that day by the Inspector as if he or she was the Inspector of Mental Hospitals having the powers of that Inspector.

Annotations:

Modifications (not altering text):

C24

Function under subs. (3) transferred and reference to “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

...

...

...

No. 25 of 2001

Mental Health Act 2001

Sections 33(3)(c), 44, 48(8), 50(3) and 54(4) and (5)

...

...

...

Functions of Inspector.

51

51.—(1) The principal functions of the Inspector shall be—

( a) to visit and inspect every approved centre at least once in each year after the year in which the commencement of this section falls and to visit and inspect any other premises where mental health services are being provided as he or she thinks appropriate, and

( b) in each year, after the year in which the commencement of this section falls, to carry out a review of mental health services in the State and to furnish a report in writing to the Commission on—

(i) the quality of care and treatment given to persons in receipt of mental health services,

(ii) what he or she has ascertained pursuant to any inspections carried out by him or her of approved centres or other premises where mental health services are being provided,

(iii) the degree and extent of compliance by approved centres with any code of practice prepared by the Commission under section 33(3)(e) , and

(iv) such other matters as he or she considers appropriate to report on arising from his or her review.

(2) The Inspector shall have all such powers as are necessary or expedient for the performance of his or her functions under this Act including but without prejudice to the generality of the foregoing, the following powers:

( a) to visit and inspect at any time any approved centre or other premises where mental health services are being provided and to be accompanied on such visit by such consultants or advisors as he or she may consider necessary or expedient for the performance of his or her functions,

( b) to require any person in such an approved centre or other premises to furnish him or her with such information in possession of the person as he or she may reasonably require for the purposes of his or her functions and to make available to the Inspector any record or other document in his or her power or control that in the opinion of the Inspector, is relevant to his or her functions,

( c) to examine and take copies of, or of extracts from, any record or other document made available to him or her as aforesaid or found on the premises,

( d) to require any person who, in the opinion of the Inspector, is in possession of information, or has a record in his or her power or control, that, in the opinion of the Inspector, is relevant to the purposes aforesaid to furnish to the Inspector any such information or record and, where appropriate, require the person to attend before him or her for that purpose,

( e) to examine and take copies in any form of, or of extracts from any record that, in the opinion of the Inspector, is relevant to the review or investigation and for those purposes take possession of any such record, remove it from the premises and retain it in his or her possession for a reasonable period, and

( f) to take evidence on oath and for that purpose to administer oaths.

(3) Subject to subsection (4), no enactment or rule of law prohibiting or restricting the disclosure or communication of information shall preclude a person from furnishing to the Inspector any such information or record, as aforesaid.

(4) A person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as a witness in a court.

Duties of Inspector when making inspection.

52

52.—When making an inspection under section 51 , the Inspector shall—

( a) see every resident (within the meaning of Part 5) whom he or she has been requested to examine by the resident himself or herself or by any other person,

( b) see every patient the propriety of whose detention he or she has reason to doubt,

( c) ascertain whether or not due regard is being had, in the carrying on of an approved centre or other premises where mental health services are being provided, to this Act and the provisions made thereunder, and

( d) ascertain whether any regulations made under section 66 , any rules made under sections 59 and 69 and the provisions of Part 4 are being complied with,

and the Inspector shall make a report in writing to the Commission in relation to any of the matters aforesaid as he or she considers appropriate.

Penalty for obstruction of Inspector.

53

53.—A person who—

( a) obstructs or interferes with the Inspector while he or she is exercising any power conferred by or under this Act, or

( b) fails to give any information within his or her knowledge reasonably required by the Inspector in the course of carrying out his or her duties,

shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

Annotations:

Editorial Notes:

E20

The Euro equivalent of £1,5000 is €1,905. This translates into a Class C fine as provided (4.01.2011) by Fines Act 2010 (8/2010), s. 6(2) and table ref. no. 1, S.I. No. 662 of 2010. A class C fine is not greater than €2,500.

Assistant Inspectors of Mental Health Services.

54

54.—(1) The Commission may as occasion requires appoint such, and such number of, persons (who shall be known as Assistant Inspectors of Mental Health Services and are referred to in this Act as “Assistant Inspectors”) as it may determine to assist the Inspector in the performance of his or her functions.

(2) An Assistant Inspector shall perform such functions of the Inspector, to such extent, as the Inspector may determine, subject to any directions that may be given to the Inspector by the Commission.

(3) An Assistant Inspector shall perform his or her functions subject to the general direction of the Inspector and a function of the Inspector performed pursuant to this Act by an Assistant Inspector shall be deemed, for the purposes of this Act, to have been performed by the Inspector.

(4) An Assistant Inspector shall be paid such remuneration and such (if any) allowances for expenses as the Commission, with the consent of the Minister and the Minister for Finance, may from time to time determine.

(5) An Assistant Inspector shall hold office for such period and upon and subject to such terms and conditions as the Commission may, with the consent of the Minister and the Minister for Finance, determine.

Annotations:

Modifications (not altering text):

C25

Function under subss. (4), (5) transferred and reference to “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

...

...

...

No. 25 of 2001

Mental Health Act 2001

Sections 33(3)(c), 44, 48(8), 50(3) and 54(4) and (5)

...

...

...

Inquiries.

55

55.—(1) The Commission may, and shall if so requested by the Minister, cause the Inspector or such other person as may be specified by the Commission, to inquire into—

( a) the carrying on of any approved centre or other premises in the State where mental health services are provided,

( b) the care and treatment provided to a specified patient or a specified voluntary patient by the Commission,

( c) any other matter in respect of which an inquiry is appropriate having regard to the provisions of this Act or any regulations or rules made thereunder or any other enactment.

(2) Where a person carries out an inquiry under this section, he or she shall, as soon as may be, prepare a report in writing of the results of the inquiry and shall submit the report to the Commission.

(3) A report under subsection (2) shall be absolutely privileged wherever and however published.

PART 4

Consent to Treatment

Annotations:

Modifications (not altering text):

C26

Application of Part 4 extended (1.06.2006) by Criminal Law (Insanity) Act 2006 (11/2006), s. 3(3), S.I. No. 273 of 2006.

Designated centres.

3.— ...

(3) Part 4 of the Act of 2001 shall apply to any person who is detained in a designated centre under this Act.

Definition ( Part 4).

56

56.—In this Part “consent”, in relation to a patient, means consent obtained freely without threats or inducements, where—

( a) the consultant psychiatrist responsible for the care and treatment of the patient is satisfied that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment; and

( b) the consultant psychiatrist has given the patient adequate information, in a form and language that the patient can understand, on the nature, purpose and likely effects of the proposed treatment.

Treatment not requiring consent.

57

57.—(1) The consent of a patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent.

(2) This section shall not apply to the treatment specified in section 58 , 59 or 60.

Psycho-surgery.

58

F49 [ 58. (1) Psycho-surgery shall not be performed on a patient.

(2) In this section psycho-surgery means any surgical operation that destroys brain tissue or the functioning of brain tissue and which is performed for the purposes of ameliorating a mental disorder. ]

Annotations:

Amendments:

F49

Substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 22, commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

Modifications (not altering text):

C27

Section prior to 30 March 2020 temporarily suspended and section substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 22, commenced as per s. 1(2)(b), 3(a), (b), subject to exception in s. 24. The suspended section is reproduced below.

58.—(1) Psycho-surgery shall not be performed on a patient unless—

( a) the patient gives his or her consent in writing to the psycho-surgery, and

( b) the psycho-surgery is authorised by a tribunal.

(2) Where it is proposed to perform psycho-surgery on a patient and the consent of the patient has been obtained, the consultant psychiatrist responsible for the care and treatment of the patient shall notify in writing the Commission of the proposal and the Commission shall refer the matter to a tribunal.

(3) Where such a proposal is referred to a tribunal under this section, the tribunal shall review the proposal and shall either—

( a) if it is satisfied that it is in the best interests of the health of the patient concerned, authorise the performance of the psycho-surgery, or

( b) if it is not so satisfied, refuse to authorise it.

(4) The provisions of sections 19 and 49 shall apply to the referral of a matter to a tribunal under this section as they apply to the referral of an admission order or a renewal order to a tribunal under section 17 with any necessary modifications.

(5) Effect shall not be given to a decision to which this section applies before—

( a) the expiration of the time for the bringing of an appeal to the Circuit Court, or

( b) if such an appeal is brought, the determination or withdrawal thereof.

(6) In this section “psycho-surgery” means any surgical operation that destroys brain tissue or the functioning of brain tissue and which is performed for the purposes of ameliorating a mental disorder.

Electro-convulsive therapy.

59

59.—(1) A programme of electro-convulsive therapy shall not be administered to a patient unless either—

( a) the patient gives his or her consent in writing to the administration of the programme of therapy, or

( b) where the patient is unable F50 [ ] to give such consent—

(i) the programme of therapy is approved (in a form specified by the Commission) by the consultant psychiatrist responsible for the care and treatment of the patient, and

(ii) the programme of therapy is also authorised (in a form specified by the Commission) by another consultant psychiatrist following referral of the matter to him or her by the first-mentioned psychiatrist.

(2) The Commission shall make rules providing for the use of electro-convulsive therapy and a programme of electro-convulsive therapy shall not be administered to a patient except in accordance with such rules.

Annotations:

Amendments:

F50

Deleted (15.02.2016) by Mental Health (Amendment) Act 2015 (58/2015), s. 2, S.I. No. 68 of 2016.

Administration of medicine.

60

60.—Where medicine has been administered to a patient for the purposes of ameliorating his or her mental disorder for a continuous period of 3 months, the administration of that medicine shall not be continued unless either—

( a) the patient gives his or her consent in writing to the continued administration of that medicine, or

( b) where the patient is unable F51 [ ] to give such consent—

(i) the continued administration of that medicine is approved by the consultant psychiatrist responsible for the care and treatment of the patient, and

(ii) the continued administration of that medicine is authorised (in a form specified by the Commission) by another consultant psychiatrist following referral of the matter to him or her by the first-mentioned psychiatrist,

and the consent, or as the case may be, approval and authorisation shall be valid for a period of 3 months and thereafter for periods of 3 months, if, in respect of each period, the like consent or, as the case may be, approval and authorisation is obtained.

Annotations:

Amendments:

F51

Deleted (15.02.2016) by Mental Health (Amendment) Act 2015 (58/2015), s. 3, S.I. No. 68 of 2016.

Treatment of children in respect of whom an order under section 25 is in force.

61

61.—Where medicine has been administered to a child in respect of whom an order under section 25 is in force for the purposes of ameliorating his or her mental disorder for a continuous period of 3 months, the administration of that medicine shall not be continued unless either—

( a) the continued administration of that medicine is approved by the consultant psychiatrist responsible for the care and treatment of the child, and

( b) the continued administration of that medicine is authorised (in a form specified by the Commission) by another consultant psychiatrist, following referral of the matter to him or her by the first-mentioned psychiatrist,

and the consent or, as the case may be, approval and authorisation shall be valid for a period of 3 months and thereafter for periods of 3 months, if, in respect of each period, the like consent or, as the case may be, approval and authorisation is obtained.

PART 5

Approved Centres

Definitions ( Part 5).

62

62.—In this Part—

“centre” means a hospital or other in-patient facility for the care and treatment of persons suffering from mental illness or mental disorder;

“the Register” means the Register of Approved Centres and cognate words shall be construed accordingly;

“registered proprietor”, in relation to a centre, means the person whose name is entered in the register as the person carrying on the centre;

“regulations” means the regulations under section 66 ;

“resident” means a person receiving care and treatment in a centre.

Prohibition of unregistered centres.

63

63.—(1) A person shall not carry on a centre unless the centre is registered and the person is the registered proprietor thereof and a centre which is so registered shall be known, and is referred to in this Act, as “an approved centre”.

(2) Any person who contravenes a provision of this section shall be guilty of an offence.

Registration of approved centres.

64

64.—(1) The Commission shall establish and maintain a register which shall be known as “the Register of Approved Centres” and is referred to subsequently in this Act as “the Register”.

(2) ( a)  There shall be entered in the Register in respect of each centre registered therein the name of the person by whom it is carried on, the address of the premises in which it is carried on, a statement of the number of patients who can be accommodated in the centre, the date on which the registration is to take effect (referred to subsequently in this section as “the date of registration”) and such other (if any) particulars as may be prescribed.

( b)  The Register maintained under this section shall be made available for inspection free of charge by members of the public at all reasonable times.

(3) ( a)  The Commission may, on application to it in that behalf by a person who proposes to carry on a centre, register or refuse to register the centre.

( b)  Subject to the provisions of this section, the period of a registration shall be 3 years from the date of registration.

( c)  Where the Commission registers a centre it shall issue a certificate of registration to the registered proprietor thereof.

(4) The Commission may remove a centre from the register.

(5) The Commission shall not—

( a) refuse to register a centre in relation to which an application for its registration has been duly made, or

( b) remove a centre from the Register, unless—

(i) it is of opinion that—

(I) the premises to which the application or, as the case may be, the registration relates do not comply with the regulations, or

(II) the carrying on of the centre will not be or is not in compliance with the regulations,

or

(ii) the registered proprietor has been convicted of an offence under this Part, or

(iii) the registered proprietor has failed or refused to furnish the Commission with information requested by it pursuant to subsection (8) or has furnished the Commission with information that is false or misleading in a material particular, or

(iv) the registered proprietor has, not more than one year before the date from which the registration or removal from the register would take effect, contravened a condition under subsection (6).

(6) ( a)  The Commission may—

(i) at the time of registration or subsequently attach to the registration conditions in relation to the carrying on of the centre concerned and such other matters as it considers appropriate having regard to its functions under this Part,

(ii) attach different conditions to the registration of different centres, and

(iii) amend or revoke a condition of registration.

( b)  Without prejudice to the generality of paragraph (a), conditions attached to the registration of a centre may—

(i) require the carrying out of essential maintenance or refurbishment of a centre or of specified areas within a centre,

(ii) require the closure, temporarily or permanently, of a specified area or areas within a centre,

(iii) specify the maximum number of residents which may be accommodated in a centre, or in a specified area or areas within a centre,

(iv) specify the minimum number of staff required to be employed in a centre,

(v) require the introduction or review, as the case may be, of specified policies, protocols and procedures relating to the care and welfare of patients and residents,

(vi) require the introduction or review, as the case may be, of specified policies, protocols and procedures relating to the ordering, prescribing, storing and administration of medicines,

(vii) specify measures to be taken to ensure that patients and residents are informed of their rights under this Act.

( c)  Conditions imposed under this subsection or amendments and revocations under this subsection shall be notified in writing to the registered proprietor of the centre concerned.

(7) An application for registration shall be in a form specified by the Commission.

(8) ( a)  The Commission may request an applicant for registration or, as the case may be, a registered proprietor to furnish it with such information as it considers necessary for the purposes of its functions under this Part.

( b)  A person who, whether in pursuance of a request or otherwise, furnishes information to the Commission for the purposes of this Part that is false or misleading in a material particular shall be guilty of an offence unless he or she shows that, at the time the information was furnished to the Commission, he or she was not aware that it was false or misleading in a material particular.

(9) The registered proprietor of a centre who proposes to carry on the centre immediately after the expiration of the period of registration of the centre may apply under subsection (3) to the Commission concerned not less than 2 months before such expiration for the registration of the centre and, if the Commission does not notify him or her before such expiration that it proposes to refuse to register the centre, it shall register the centre and its date of registration shall be the day following the day of such expiration.

(10) ( a)  Where an approved centre commences to be carried on by a person other than the registered proprietor—

(i) the centre shall thereupon cease to be registered,

(ii) the person shall (if he or she has not done so before such commencement) apply not later than 4 weeks after it to the Commission for the registration of the centre, and, if the application is granted, the date of registration of the centre shall be that of the day following the day of the cesser aforesaid,

(iii) if the application aforesaid is duly made, and is not refused then, during the period from the commencement aforesaid until the centre is registered, it shall be deemed, for the purposes of section 63 to be registered and there shall be deemed to be attached to the registration any conditions attached to the previous registration.

( b)  A person who contravenes paragraph (a)(ii) shall be guilty of an offence.

(11) ( a)  Where the Commission proposes to refuse to register a centre, to remove a centre from the register, to attach a condition to, or amend or revoke a condition attached to, a registration, it shall notify in writing the applicant or the registered proprietor, as the case may be, of its proposal and of the reasons for it.

( b)  A person who has been notified of a proposal under paragraph (a) may, within 21 days of the receipt of the notification, make representations in writing to the Commission and the Commission shall—

(i) before deciding the matter, take into consideration any representations duly made to it under this paragraph in relation to the proposal, and

(ii) notify the person in writing of its decision and of the reasons for it.

(12) A notification of a proposal of the Commission under subsection (11) shall include a statement that the person concerned may make representations to the board within 21 days of the receipt by him or her of the notification and a notification of a decision of the Commission under subsection (11) shall include a statement that the person concerned may appeal to the District Court under section 65 against the decision within 21 days from the receipt by him or her of the notification.

(13) Where, in relation to an approved centre, there is a contravention of a condition of registration, the registered proprietor shall be guilty of an offence.

Appeals.

65

65.—(1) A person, being the registered proprietor or, as the case may be, the person intending to be the registered proprietor, of an approved centre, may appeal to the District Court against a decision of the Commission to refuse to register the centre, to remove the centre from the register or to attach a condition, or to amend or revoke a condition attached, to the registration of the centre and such an appeal shall be brought within 21 days of the receipt by the person of the notification of the decision under section 64 and that court may, as it thinks proper, confirm the decision or direct the Commission, as may be appropriate, to register, or to restore the registration of, the centre, to withdraw the condition or the amendment to or revocation of a condition, to attach a specified condition to the registration or to make a specified amendment to a condition of the registration.

(2) The jurisdiction conferred on the District Court by this section shall be exercised by the judge of the District Court for the time being assigned to the district court district in which the centre concerned is situated.

(3) A decision of the District Court under this section on a question of fact shall be final.

(4) Where a notification of a decision specified in subsection (1) (other than a decision to refuse to register a centre which was not registered or deemed to be registered at the time of the relevant application for registration) is given under section 64 , then—

( a) during such period from such notification (not being less than 21 days) as the Commission considers reasonable and specifies in the notification, the centre shall be treated as if the decision had not been made and, if the decision was to refuse an application under paragraph (a) of section 64(10) for registration, be treated as if it had been registered and the registration had attached to it any conditions attached to the relevant registration that had ceased by virtue of subparagraph (i) of the said paragraph (a) , and

( b) if an appeal against the decision is brought under this section, during—

(i) the period from the end of the period aforesaid until the determination or withdrawal of the appeal or any appeal therefrom or from any such appeal, and

(ii) such further period (if any) as the court concerned considers reasonable and specifies in its decision,

the centre shall—

(I) be treated for the purposes of section 64 as if the appeal had been upheld, and

(II) if the appeal was against a decision of the Commission to refuse an application under paragraph (a) of section 64(10) for registration, be treated as if the registration had attached to it any conditions attached to the relevant registration that had ceased by virtue of subparagraph (i) of the said paragraph (a).

(5) The Commission shall be given notice of an appeal under this section and shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

Regulations in relation to approved centres.

66

66.—(1) The Minister shall, after consultation with the Commission, for the purpose of ensuring proper standards in relation to centres, including adequate and suitable accommodation, food and care for residents while being maintained in centres, and the proper conduct of centres, make such regulations as he or she thinks appropriate in relation to centres.

(2) Without prejudice to the generality of subsection (1), regulations under this section may—

( a) prescribe requirements as to the maintenance, care and welfare of residents,

( b) prescribe requirements as to the staffing including requirements as to the suitability of members of staff of centres,

( c) prescribe requirements as to the design, maintenance, repair, cleaning and cleanliness, ventilation, heating and lighting of centres,

( d) prescribe requirements as to the accommodation provided in centres,

( e) prescribe requirements as to the establishment and maintenance of a register of residents,

( f) prescribe requirements as to the records to be kept in centres and for the examination and copying of any such records or of extracts therefrom by the Inspector,

( g) prescribe requirements as to the drawing up and carrying out by centres, so far as practicable in consultation with each resident, of an individual care plan for that resident, including the setting of appropriate goals,

( h) prescribe requirements as to the information to be provided to the Inspector,

( i) provide for the enforcement and execution of the regulations by the Commission.

(3) ( a)  Where, in relation to a centre, there is a failure or refusal to comply with a provision of the regulations, the registered proprietor shall be guilty of an offence.

( b)  A person who fails or refuses to comply with a provision of the regulations shall be guilty of an offence.

(4) ( a)  Where a person is convicted of an offence under this section, the Circuit Court may, on the application of the Commission, brought not more than 6 months after the conviction or, in the case of an appeal against the conviction, the final determination of it or of any further appeal (if it is a determination affirming the conviction) or the withdrawal of any such appeal therefrom, by order declare that the person shall be disqualified during such period as may be specified in the order from carrying on the centre to which the conviction related or, at the discretion of that Court, any centre.

( b)  A person in respect of whom an order is made under this subsection shall not during the period specified in the order carry on the centre specified in the order or, if the order so specifies, any centre.

( c)  A person who contravenes paragraph (b) shall be guilty of an offence.

( d)  Notice of an application under this subsection shall be given to the person convicted of the offence concerned and he or she shall be entitled to appear, be heard and adduce evidence on the hearing of the application.

( e)  The jurisdiction conferred on the Circuit Court by this subsection shall be exercised by the judge of the Circuit Court for the time being assigned to the circuit in which the premises concerned are situated.

(5) A person who wilfully obstructs or interferes with the Inspector in the performance of functions under the regulations or who fails or refuses to comply with a requirement of the Inspector under such regulations shall be guilty of an offence.

Annotations:

Editorial Notes:

E21

Power pursuant to subs. (1) exercised (1.11.2006) by Mental Health Act 2001 (Approved Centres) Regulations 2006 (S.I. No. 551 of 2006), in effect as per reg. 2.

Restriction on admission of patients.

67

67.—(1) Subject to sections 12 and 22, a person suffering from a mental disorder shall not be detained in any place other than an approved centre.

(2) Where, in relation to a centre, there is a contravention of this section, the person carrying on the centre shall be guilty of an offence.

Penalties under Part 5.

68

68.—A person guilty of an offence under this Part shall be liable—

( a) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both,

( b) on conviction on indictment, to a fine not exceeding £50,000 or to imprisonment for a term not exceeding 2 years or to both.

Annotations:

Editorial Notes:

E22

The Euro equivalent of £1,5000 is €1,905. This translates into a Class C fine as provided (4.01.2011) by Fines Act 2010 (8/2010), s. 6(2) and table ref. no. 1, S.I. No. 662 of 2010. A class C fine is not greater than €2,500.

PART 6

Miscellaneous

Bodily restraint and seclusion.

69

69.—(1) A person shall not place a patient in seclusion or apply mechanical means of bodily restraint to the patient unless such seclusion or restraint is determined, in accordance with the rules made under subsection (2), to be necessary for the purposes of treatment or to prevent the patient from injuring himself or herself or others and unless the seclusion or restraint complies with such rules.

(2) The Commission shall make rules providing for the use of seclusion and mechanical means of bodily restraint on a patient.

(3) A person who contravenes this section or a rule made under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

(4) In this section “patient” includes—

( a) a child in respect of whom an order under section 25 is in force, and

( b) a voluntary patient.

Annotations:

Editorial Notes:

E23

The Euro equivalent of £1,5000 mentioned in subs. (3) is €1,905. This translates into a Class C fine as provided (4.01.2011) by Fines Act 2010 (8/2010), s. 6(2) and table ref. no. 1, S.I. No. 662 of 2010. A class C fine is not greater than €2,500.

Participation in clinical trials.

70

70.—Notwithstanding section 9(7) of the Control of Clinical Trials Act, 1987 , a person suffering from a mental disorder who has been admitted to an approved centre under this Act shall not be a participant in a clinical trial.

Clinical directors.

71

71.—(1) The governing body of each approved centre shall appoint in writing a consultant psychiatrist to be the clinical director of the centre.

(2) Nothing in this section shall be construed as preventing a consultant psychiatrist from being the clinical director of more than one approved centre.

71A

F52 [ Removal of persons and bringing back of patients to approved centres by authorised persons or by relevant persons.

71A. (1) The registered proprietor of an approved centre may enter into an arrangement with a person for the purposes of arranging for persons who are members of the staff of that person to provide services relating to

( a ) the removal pursuant to section 13 of persons to that centre,

( b ) the bringing back pursuant to section 27 of patients to that centre, or

( c ) both such removal and bringing back.

(2) Where the registered proprietor of an approved centre has entered into an arrangement referred to in subsection (1) with a person, the clinical director of that centre may authorise, in writing and for a period not exceeding 12 months as is specified in the authorisation, such and so many persons who are members of the staff of that person to provide the services referred to in that subsection which are the subject of that arrangement.

(3) Where, before the date of commencement of this section, a person was removed to an approved centre pursuant to and in accordance with section 13 except in so far as the removal was carried out (whether in whole or in part) by a relevant person, such removal shall, to the extent that it was carried out by the relevant person, be deemed to be and to always have been carried out by a member of the staff of that centre, save for the purposes of any proceedings commenced before such date.

(4) Where, before the date of commencement of this section, a person was brought back to an approved centre pursuant to and in accordance with section 27 except in so far as the bringing back was carried out (whether in whole or in part) by a relevant person, such bringing back shall, to the extent that it was carried out by the relevant person, be deemed to be and to always have been carried out by a member of the staff of that centre, save for the purposes of any proceedings commenced before such date.

(5) In this section

relevant person

( a ) in relation to a removal referred to in subsection (3) of a person to an approved centre, means a person who carried out (whether in whole or in part) such removal pursuant to an arrangement entered into by the registered proprietor of that centre,

( b ) in relation to a bringing back referred to in subsection (4) of a patient to an approved centre, means a person who carried out (whether in whole or in part) such bringing back pursuant to an arrangement entered into by the registered proprietor of that centre. ]

Annotations:

Amendments:

F52

Inserted (21.07.2009) by Health (Miscellaneous Provisions) Act 2009 (25/2009), s. 63(5), commenced on enactment.

Transitional provisions.

72

72.—(1) Subject to the provisions of this section, where immediately before the commencement of Part 2, a person stood detained under section 171, 178, 184 or 185 of the Act of 1945, he or she shall be regarded for the purposes of this Act as having been involuntarily admitted under that Part to the institution in which he or she was so detained.

(2) In the case of a person who immediately before such commencement stood detained under section 184 or 185 of the Act of 1945, his or her treatment and detention shall be regarded as authorised by virtue of this Act until the expiration of the period during which he or she may be detained pursuant to the said section 184 or 185 as may be appropriate.

(3) In the case of a person detained under section 171 or 178 of the Act of 1945, his or her treatment and detention shall be regarded as authorised by virtue of this Act for a period not exceeding 6 months after the commencement of this section.

(4) The detention of a person referred to in subsection (2) or (3) shall be referred to a tribunal by the Commission before the expiration of the period referred to in subsection (2) or (3), as may be appropriate, and the tribunal shall review the detention as if it had been authorised by a renewal order under section 15(2) .

(5) As soon as may be after the commencement of this section, the clinical director of the institution concerned shall furnish the Commission with particulars of the persons detained in the institution under the provisions of the Act of 1945.

(6) During the period of 3 years from the commencement of Part 2 , or such shorter period as may be prescribed, a hospital or other in-patient facility for the care and treatment of persons with a mental disorder which, immediately before such commencement, was providing such care and treatment, shall, for the purposes of this Act, be deemed to be an approved centre.

(7) During the period referred to in subsection (6), the provisions of Part X of the Act of 1945 shall apply to a centre which, immediately before the commencement of Part 2, was registered under the said Part X as if the centre were a private institution within the meaning of that Part.

(8) During the period referred to in subsection (6), the provisions of Part XI of the Act of 1945 shall apply to a centre which, immediately before the commencement of Part 2, was registered under the said Part XI as if the centre were a private charitable institution within the meaning of that Part.

(9) The provisions of Part XII of the Act of 1945 shall apply to a hospital or other in-patient facility in which the care and treatment of persons with a mental disorder or mental illness is begun during the period referred to in subsection (6).

(10) In this section, “centre” means a hospital or other in-patient facility for the care and treatment of persons suffering from a mental disorder or a mental illness.

Annotations:

Editorial Notes:

E24

Power pursuant to subs. (6) exercised (26.02.2008) by Mental Health Act 2001 (Period Prescribed under Section 72(6)) Regulations 2008 (S.I. No. 44 of 2008).

Leave of High Court for certain proceedings.

73

73.—(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:

( a) that the proceedings are frivolous or vexatious, or

( b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

(2) Notice of an application for leave of the High Court under subsection (1) shall be given to the person against whom it is proposed to institute the proceedings and such person shall be entitled to be heard against the application.

(3) Where proceedings are, by leave granted in pursuance of subsection (1) of this section, instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.

Provisions in relation to offences.

74

74.—(1) Proceedings for a summary offence under this Act may be brought and prosecuted by the Commission.

(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 12 months from the date of the offence.

(3) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(4) Where the affairs of a body corporate are managed by its members, subsection (3) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

Review of operation of Act.

75

75.—The Minister shall, not later than 5 years after the establishment day, carry out a review of the operation of this Act and shall make a report to each House of the Oireachtas of his or her findings and conclusions resulting from the review.

SCHEDULE

Enactments Repealed

Reference Number

Number and Year

Short Title

Extent of Repeal

(1)

(2)

(3)

(4)

1.

1945, No. 19

Mental Treatment Act, 1945

The whole Act other than Part VIII, and sections 241, 276, 283 and 284.

2.

1953, No. 35

Mental Treatment Act, 1953

The whole Act.

3.

1961, No. 4

Mental Treatment (Detention in Approved Institutions) Act, 1961

The whole Act.

4.

1961, No. 7

Mental Treatment Act, 1961

The whole Act other than sections 39 and 41.

5.

1981, No. 17

Health (Mental Services) Act, 1981

The whole Act.