MENTAL HEALTH ACT, 2001

• (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 F38[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 F39[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

• (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.

52. Duties of Inspector when making inspection.

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.

53. Penalty for obstruction of Inspector.

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.

54. Assistant Inspectors of Mental Health Services.

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.

55. Inquiries.

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

56. Definition (Part 4).

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.

57. Treatment not requiring consent.

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.

58. Psycho-surgery.

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.

59. Electro-convulsive therapy.

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 F40[…] 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.

60. Administration of medicine.

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 F41[…] 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.

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

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

62. Definitions (Part 5).

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.

63. Prohibition of unregistered centres.

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.

64. Registration of approved centres.

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.

65. Appeals.

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.

66. Regulations in relation to approved centres.

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.

67. Restriction on admission of patients.

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.

68. Penalties under Part 5.

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.

PART 6 Miscellaneous

69. Bodily restraint and seclusion.

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.

70. Participation in clinical trials.

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.

71. Clinical directors.

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. F42[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.]

72. Transitional provisions.

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.

73. Leave of High Court for certain proceedings.

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.

74. Provisions in relation to offences.

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.

75. Review of operation of Act.

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

Section 6.

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.