Act ends criminal element in mental-health detention

When the landmark Mental Health Act 2026 comes into effect, members of An Garda Síochána will no longer have the power to make applications for involuntary admission in the course of their duties.

This was one of the changes in the extensively reformed legislation picked up on by Orla Keane, general counsel of the Mental Health Commission (MHC), at the Mental Health & Capacity Law Conference at Wood Quay Venue in Dublin (26 June.)

“Back in 2015, the report of the expert group on the review of the Mental Health Act, 2001 recommended that only authorised officers should be permitted to make applications for involuntary detention.

“We have been banging a strong drum on this for a long time,” she told attendees at the Curry & Hickey LLP event.

“Under section 14 of the new act, there are still a couple of categories of people who can be asked to make applications for involuntary detention [in the absence of an authorised officer]. This does make sense, for example if it became apparent when somebody went to A&E that they needed to be detained.

“But the good thing is that the gardaí won’t be able to detain people anymore. This is really important, as it takes away that criminal element that’s sometimes associated with mental health.”

Circumstances of detention

Keane also referred to clause (e) of section 11 of the act as being important in terms of the circumstances under which the involuntary detention of a person is not authorised. 

Under this clause, a person cannot be detained by reason only of the fact that they “may behave in such a manner or hold views that are contrary to, deviate from or transgress cultural, religious, social or traditional norms or customs of appropriate behaviour.”

In this context, Keane mentioned a significant High Court judicial review in 2022 concerning An Garda Síochána's powers under the Mental Health Act 2001.

The case, GB v Mental Health Tribunal, involved gardaí involuntarily detaining a man who was wrapped in a sheet and carrying a lantern. (The court allowed the appeal.)

Section 22 of the Mental Health Act 2026 deals with the duration and renewal of involuntary admission orders.

It means that there will only be detention orders of up to 21 days or a maximum order up to three months.

Following High Court and Court of Appeal judgements, the Mental Health (Amendment) Act 2018 capped renewal orders at a maximum of six months at any given time.

Prior to this, renewal orders could last for 12 months.

Tenacious legal representatives

“Gone will be the six-month orders. That, in itself, is a huge achievement. As referenced in our 2025 annual report [published on the same day as the conference], this is probably the result of tenacious legal representatives who brought some very important points forward,” Keane said.

“After the 2018 amendment, we started monitoring the six-month orders and noticed they kept reducing, which showed that we don’t need them.”

Heralded by the Government as “a new era in mental healthcare in Ireland, ensuring people will have a voice and choice in their own care and treatment”, the Mental Health Act 2026 was signed into law on 7 May by President Catherine Connolly.

Mary Butler, Minister for Mental Health, said she wanted to see the 268-section act “commenced at the earliest opportunity” and would be seeking additional funding in the estimates process for 2027 to put in place the necessary resources to make it a success.

“There are a number of significant changes in act that our mental-health services will need to adapt to.  As the act becomes law, work has already begun to commence the legislation,” she said.

“This includes the drafting of secondary legislation, the development of additional training and education for professionals working under the new act, and awareness-raising of the changes for people accessing services under the act.”

Mental Health Reform, which has campaigned for modernisation of the law, said the enactment of the Mental Health Act 2026 marked “a major step forward in strengthening the rights of people with mental-health difficulties”.

However, it said substantial investment would be needed in Budget 2027 to implement the legislation and deliver the reforms it promised.

Regulatory remit

A key aspect of the new act that will require funding and extra resources is the expansion of the MHC’s regulatory remit to community mental-health services, including community child and adolescent mental-health services (CAMHS).

“With the Mental Health Act 2026 now signed into law, regulation is moving beyond in-patient services and increasingly into community-based mental-health services.

“It is essential that these foundations are strong because they will underpin how mental-health services are delivered and regulated across the wider system,” said John Farrelly, chief executive of the MHC, at the 2025 annual report launch.

“In-patient units have a critical role, but they should not become the default response to the growing mental-health needs of society. Much of that care is better provided in the community, and the standards we expect in inpatient services today must become the standards we expect across the wider mental-health system tomorrow.”

According to Keane, designing regulation for community services, as opposed to approved centres, is going to be “quite a challenge”, as it will involve very different criteria.

She also told the conference that the definition of registered community mental-health services was “very wide” and would have to be examined.

“Talking to people at our ‘Future in Mind’ garden at the Bord Bia Bloom festival this year, the one piece of feedback we got was that the MHC really needed to see what was going on in community settings.

“It was great to be able to tell them that this power is coming. It’s good there’s going to be a statutory basis for all of this now,” she said.