Mental Health Act 2001

PART 1 Preliminary and General

1. Short title, collective citation, construction and commencement.

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.

2. Interpretation.

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

(b) in relation to the bringing back pursuant tosection 27of a patient to an approved centre, means a person who is for the time being authorised pursuant tosection 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.

2A. F7[Exigencies of public health emergency

2A.—F8[…]]

3. “Mental disorder”.

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.

4. Best interests, etc., of person.

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.

4A. F10[Guiding principles in respect of children.

4A....]

5. Regulations.

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.

6. Repeals.

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.

7. Expenses.

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

8. Criteria for involuntary admission to approved centres.

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.

9. Persons who may apply for involuntary admission.

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 F11[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 F11[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,

F12[(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) ofsubsection (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 F11[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 F13[a member of the Board of the Health Service Executive.]

(8) In this section—

“authorised officer” means an officer of F13[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;

F14["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 withsection 42of 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 withsection 41of that Act, as if it had been made under that Act;]

F14["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 withsection 42of 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 withsection 41of that Act, as if it had been made under that Act.]

10. Making of recommendation for involuntary admission.

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 F15[, 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.

11. Disclosure of previous application for involuntary admission.

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.

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

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.

13. Removal of persons to approved centres.

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 F16[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 F17[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.

14. Admission order.

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 F18[, a civil partner] or a relative of the person, or

(b) if he or she is the applicant.

15. Duration and renewal of admission orders.

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.

F19[(3) (a) The period referred to insubsection (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 undersubsection (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 toparagraphs (c)and(d), a patient detained pursuant to any renewal order made underparagraph (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 ofsection 18.

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

(d) For the purposes of a review conducted pursuant to an application referred to inparagraph (b),subsection (1)ofsection 18shall be read as ifparagraph (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.

16. Provision of information for persons admitted to approved centres.

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,

F20[(ee) subject tosection 15(3)(c)and(d), is entitled, by virtue ofsection 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 ofsection 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.

17. Referral of admission order and renewal order to a tribunal.

17.—(1) Following the receipt by the Commission of a copy of an admission order or a renewal order, F21[or an application referred to insection 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.

18. Review by a tribunal of admission orders and renewal orders.

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.

F22[(2) Subject tosubsection (4), a decision undersubsection (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 insection 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.

19. Appeal to Circuit Court.

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.

20. Application for transfer of patient.

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.

21. Transfer of patient.

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.

22. Transfer of patient to hospital.

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.

23. Power to prevent voluntary patient from leaving approved centre.

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 F23[the Health Service Executive.]

(3) Where a child is detained in accordance with this section, F23[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 F23[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.

24. Power to detain voluntary patients.

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 F24[, 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.

25. Involuntary admission of children.

F25[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), F26[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 F27[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 F27[the Health Service Executive], the parents of the child or either of them or a person acting in loco parentis cannot be found by F27[the Health Service Executive],

then, F26[the Health Service Executive] may make an application under subsection (1) without any prior examination of the child by a consultant psychiatrist.

(4) Where F26[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 F27[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 F28[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—

F29[(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 undersubsection (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.

26. Absence with leave.

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.

27. Absence without leave.

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 F31[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 F32[patient] causing immediate and serious harm to himself or herself or F33[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 F34[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.

28. Discharge of patients.

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, F35[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.

29. Voluntary admission to approved centres.

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.

30. Penalties under Part 2

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.

PART 3 Independent Review of Detention

31. Establishment day.

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

32. Establishment of Mental Health Commission.

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.

33. Functions of Commission.

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.

34. Conferral of additional functions on Commission.

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).

35. Membership of Commission.

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),

F36[(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.

36. Terms of office of members of Commission.

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.

37. Chairperson of Commission.

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.

38. Chief Executive of Commission.

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.

39. Staff of Commission.

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.

40. Superannuation of staff of Commission.

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.

41. Borrowing by Commission.

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.

42. Reports and information to Minister.

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.

43. Membership of either House of Oireachtas or European Parliament.

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.

44. Grants to Commission.

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.

45. Gifts.

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.

46. Seal of Commission.

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.

47. Accounts and audits of Commission.

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.

48. Mental Health Tribunals.

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.

(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 F37[5 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 F38[the Health Service Executive] or an approved centre not more than 7 years before his or her appointment under this section.

49. Powers of tribunals.

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.

50. Inspector of Mental Health Services.

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.

51. Functions of Inspector.

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