[Deputy Áine Brady   ]
Senator Fitzgerald referred to waiting times. Those waiting for a colonoscopy are mainly non-urgent cases. In almost all cases urgent cases are being seen within four weeks. Last year the Minister introduced a target of 100% of urgent cases being seen within four weeks. Colorectal screening will be provided in ten to 12 centres around the country. Senator O’Malley questioned the treatment of cancer in cancer care centres. Diagnosis is made by a multidisciplinary team and treatment provided based on clinical need. A major aim of the cancer programme was to provide an equitable system of diagnosis and care, regardless of where a person lived. Many Senators referred to the use of sunbeds. The Minister intends to introduce legislation to ban the use of sunbeds by young people under 18 years of age. I urge her to prioritise such legislation. The issue of placing pictorial adverts on cigarette packets was mentioned. This is provided for under the Tobacco Control Act. The regulations are being drafted with the assistance of the Attorney General. Senator Ó Brolcháin referred to the National Cancer Registry which plays a key role in the examination of data and research. Its director, Dr. Harry Comber, is chairman of the scientific committee of the International Agency for Research on Cancer. Some €170,000 in lottery funding was provided for the Sligo bus service in late 2008. Regarding the HPV vaccination programme, in mid-January the Minister for Health and Children announced her decision to commence vaccination of girls in first year. Additional funding has been made available to the HSE to allow the programme under which 30,000 girls will receive three doses of the vaccine each year to be delivered as announced. The HSE is working closely with the Department of Health and Children to finalise the plan and the necessary arrangements which must be put in place to allow the programme to commence before the summer. Staff in the HSE who will carry out the HPV vaccination programme are completing the swine flu vaccination programme and also vaccinating additional school-age children with the MMR vaccine. This latter requirement arises because swine flu vaccination necessitated a delay in the MMR vaccination programme in certain areas and from the fact that in recent weeks there has been a significant rise in the number of measles cases, especially among the Traveller population. Each of these vaccination requirements is being considered. There is significant potential in the delivery of the vaccine, namely, in the prospect of it being delivered by nurses and at the same time as other vaccines provided for children in the school setting. Both developments will offset the impact on resources required for the programme and any possible impact on other services provided by these staff. These specific aspects form part of the details being finalised by the HSE. Yesterday the Department of Health and Children received a document from the HSE outlining a number of options for implementation of the HPV vaccination programme. An agreed plan, based on the commitments given by the Minister, will be finalised shortly. Senator McFadden made a point about lowering the age group for mammography screening. There is limited evidence for the efficacy of screening women aged 40 to 49 years in reducing mortality from breast cancer. It is fair to say services for the detection and treatment of cancer have never been better. As stated, up to one third of cancers may be preventable. It is true that healthy lifestyles do not guarantee continuing good health but, especially on National No Smoking Day, it is important to bear in mind that a significant impact on the incidence of cancer could be made by individuals making a change in personal lifestyle that would reduce their risk of developing cancer. An Cathaoirleach: I thank the Minister of State. Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.  Criminal Law (Insanity) Bill 2010: Order for Second Stage.
Bill entitled an Act to amend the Criminal Law (Insanity) Act 2006; to amend the Defence Act 1954; and to provide for related matters.
Senator Denis O’Donovan: I move: “That Second Stage be taken now.” Question put and agreed to. Criminal Law (Insanity) Bill 2010: Second Stage. Question proposed: “That the Bill be now read a Second Time.” Minister of State at the Department of Justice, Equality and Law Reform (Deputy John Moloney): I am pleased to initiate the Criminal Law (Insanity) Bill 2010 in the Upper House. In view of the reputation of this House for a strong interest in promoting the rights of the individual, I look forward to a high quality debate on the Bill, which has at its core the protection of such rights. The purpose of the Bill is to make limited amendments to the Criminal Law (Insanity) Act 2006. The 2006 Act was a significant milestone in establishing a new statutory regime governing the way the criminal law deals with mentally ill persons who may have committed criminal acts. The Bill provides for amendments to two aspects of the 2006 Act. The provisions concerned are section 4 of the Act, which deals with the cases of persons who, because of mental disorder, may be considered by a court to be unfit to be tried on criminal charges, and section 13, which provides for review of detention by the Mental Health (Criminal Law) Review Board. The review board was established by the 2006 Act as a new independent body to review the detention of persons detained in accordance with the Act. Section 13 provides that the review board should carry out regular reviews of persons who have been found to be unfit to be tried or not guilty by reason of insanity and who are detained by order of a court in a designated centre. The only designated centre at present is the Central Mental Hospital. The review board has the power to discharge persons from detention conditionally or unconditionally in certain circumstances. In this regard it must hear evidence relating to the mental condition of the person concerned from the consultant psychiatrist responsible for the person’s care or treatment. It also must take into account the welfare and safety of that person and the public interest. The main amendment to the 2006 Act concerns section 13. It arises from the fact that the review board, since its establishment, has been reluctant to order the discharge of patients who might be considered suitable for discharge subject to conditions because it has no statutory power effectively to enforce such conditions. This has resulted in difficulties, not only for the patients concerned, but also for the Central Mental Hospital, whose limited capacity is being used up by the retention of patients who might otherwise be considered for conditional discharge under the Act. The review board’s view is that it should be possible under the Act to provide for enforceable conditions to be applied to conditional discharge to facilitate the effective use of such discharge. The 2006 Act envisaged a relatively black and white situation where a person either required inpatient treatment or the person was completely cured. The Minister for Justice, Equality and Law Reform accepts there is a category of patient who is suitable to live outside a designated centre but where, at least initially, safety and health considerations require an ability to return that person for inpatient treatment in a designated centre if there is any unforeseen deterioration in the person’s mental condition. Accordingly, this Bill provides that supervisory powers should be given to the review board to cover cases where a patient may still be suffering from an underlying mental disorder but whom it is considered safe to discharge, provided he or she complies with certain conditions. I might mention the 2008 judgment in the case of B v. Mental Health (Criminal Law) Review Board and others. In that case, the High Court ruled on a case taken by a person who was denied conditional discharge by the review board because it was of the view that it should only discharge the person if it had the power to impose enforceable conditions. The court agreed that the 2006 Act did not provide for enforceable conditions but held that the review board acted lawfully in refusing to discharge the patient. The case is currently under appeal to the Supreme Court. In addition, I am aware that another patient in the Central Mental Hospital, in a similar case, has made an application to the High Court under Article 40 of the Constitution. A certain urgency attaches to the proposed amendment as a number of persons who might otherwise be considered for conditional discharge are not being so considered. The Central Mental Hospital must keep them, even if they are suitable for conditional discharge and even though it is under pressure for bed space. The opportunity is also being taken to amend section 4 of the 2006 Act which allows a court to commit a person who may be unfit to be tried on a criminal charge to the Central Mental Hospital for an initial period of up to 14 days for the purposes of psychiatric examination. The main concern being addressed in the Bill is that the present arrangements may not be fully compliant with Article 5 of the European Convention on Human Rights which has been given further effect in our law since 31 December 2003 in accordance with the provisions of the European Convention on Human Rights Act 2003. To ensure such compliance, it is necessary to provide that a committal for examination can only be made by a court after hearing evidence from a consultant psychiatrist. Some additional improvements are also being made to section 4 which I will explain as I go through the detail of the Bill. I will now outline the main provisions of the Bill. Sections 1, 2 and 4 are technical drafting sections. Section 3 amends section 4 of the 2006 Act. As I noted, section 4 is concerned with the procedures for dealing with a person who may have a mental disorder and thus be legally unfit to be tried on a criminal charge. In the absence of prior medical evidence on the issue, a court may commit the person for a period of not more than 14 days to a designated centre for psychiatric examination. This is so that the court can decide on foot of that examination whether the mental disorder, if it is present, renders the person unable to understand the nature or course of the proceedings on one or other of the several grounds set out in the Act. This initial referral may be made at present by the court without recourse to medical advice. It is proposed in section 3, in light of detailed consideration of obligations under the European Convention on Human Rights in this area and the advice of the Attorney General, to provide that a court shall consider the evidence of an approved medical officer as to the person’s mental condition before it decides to make an order to commit a person for examination at a designated centre. At present any examination has to take place on an inpatient basis. However, in the amendment proposed to be made by section 3 of the Bill, the court will be able to order that the examination be made on an inpatient or outpatient basis. In providing for this amendment to section 4 the opportunity is also being taken to provide that the court may take account of the evidence of an approved medical officer to assist in determining the issue of fitness to be tried and also to facilitate an adjournment to allow the person to receive appropriate medical treatment. The latter should help to prevent unnecessary referrals to the Central Mental Hospital and give statutory recognition to informal diversion arrangements which I understand operate successfully at Cloverhill District Court. There is a further matter which warrants consideration, namely, the possibility that centres other than the Central Mental Hospital could be designated for the purpose of carrying out examinations in accordance with section 4. This would ensure the Central Mental Hospital was not used for cases which could be dealt with in community hospitals. Accordingly, this option is being considered further in consultation with the Minister for Health and Children. In view of the relative urgency of the Bill, it was not possible to conclude consideration of this matter before publication of the Bill, but the possibility of bringing forward a Committee Stage amendment to this effect is being considered. Turning to the provisions relating to conditional discharge, the first amendment relevant to this issue occurs in section 5 which amends section 11 of the 2006 Act to provide that the criteria to which the Mental Health (Criminal Law) Review Board must have regard in reviewing detention will also apply to reviews of the conditions of a person’s conditional discharge and to applications for unconditional discharge from persons who have been conditionally discharged. The criteria are the welfare and safety of the person concerned and the public interest. Sections 6 and 7 amend the 2006 Act to provide for enforceable conditions to attach to an order by the Mental Health (Criminal Law) Review Board for conditional discharge. The provisions provide for a comprehensive system in regard to the imposition of conditions, arrangements for supervision of the conditionally discharged person, provisions to facilitate variation of conditions, provision for the conditionally discharged person to be considered for unconditional discharge and arrangements for the return of the person to the Central Mental Hospital where there is a material breach of the conditional discharge. Importantly, provision is also made for the review of the detention of a person returned under these provisions to the Central Mental Hospital by the Mental Health (Criminal Law ) Review Board. Section 6 also amends section 13 of the 2006 Act to provide that the Mental Health (Criminal Law) Review Board can conditionally discharge patients under the new section 13A. Section 7 inserts three new sections — 13A, 13B and 13C — in the 2006 Act. Section 13A creates a new scheme of conditional discharge. Subsection (1) provides that the Criminal Law (Mental Health) Review Board may make an order for the discharge of a patient subject to conditions, including conditions relating to outpatient treatment or supervision, or both. Subsection (2) provides that the review board may only make a conditional discharge order where the arrangements in regard to a discharge considered necessary by the clinical director of the designated centre have been made. These include arrangements for facilitating compliance by the person with the conditions, the supervision of the person and providing for the person’s return under section 13B if he or she fails to abide by the conditions. Subsection (3) provides that the conditions must be communicated in writing to the person. The effect of the order and consequences of non-compliance with the conditions must be explained to the person. Subsection (4) requires the person to comply with the conditional discharge order. Subsection (5) requires a copy of the order to be sent to the Minister for Justice, Equality and Law Reform and the clinical director of the designated centre. Subsection (6) provides that the review board may vary or remove one or more of the conditions of the conditional discharge order, or impose further conditions, on application by the person or the clinical director. Subsection (7) requires notice of an application under subsection (6) to be given to the person and the clinical director where the application is not being made by the clinical director. Subsection (8) provides that the person may apply to the review board for unconditional discharge after 12 months from the date of conditional discharge. The person may make subsequent applications, if necessary, so long as a period of at least 12 months elapses between applications. Subsection (9) sets out the procedure for dealing with an application for unconditional discharge. Section 13B sets out the procedures that apply where a person is in material breach of a conditional discharge order. Subsection (1) provides that a person who is in material breach of a conditional discharge order will be deemed to be unlawfully at large. Subsection (2) provides that a person is in material breach of his or her conditional discharge order where the clinical director of the designated centre, on reasonable grounds, believes the person is in breach of one or more conditions of his or her conditional discharge and that there is a serious likelihood of the person causing serious harm to himself or herself or others, or that the person may be in need of inpatient care or treatment. Subsection (3) requires the clinical director to inform a person believed to be in material breach of a conditional discharge order in writing of this fact and the reasons for such belief. Subsection (4) provides that subsection (3) does not apply where the material breach is such as to give reasonable cause for the clinical director to believe there is a serious likelihood of the person causing immediate and serious harm to himself or herself or others. Subsection (5) provides that the clinical director may make arrangements to effect the person’s return to the designated centre, including requesting assistance from the Garda Síochána. Subsection (6) provides for Garda powers of entry and arrest for the purposes of section 13B. Subsection (7) provides that a returned person must be given reasons in writing for his or her return. The provisions of the Act of 2006 will once more apply to the returned person, as they did when the person was originally committed to the designated centre under the Act of 2006 or the relevant provisions of the Defence Act 1954. Subsection (8) provides that the clinical director must inform the review board of the return of the person and the review board must review the detention of the person as soon as may be. Subsection (9) provides a definition of the term “authorised person”, which is relevant to the provision made by the new section 13C for externally provided assisted returns. The new section 13C is a technical provision to ensure staff of private agencies hired to effect the return of patients to the designated centre can be considered authorised persons for the purpose of section 13B. This provision mirrors an amendment made to the Mental Health Act 2001 to take account of legal difficulties in the operation of return procedures. Section 8 corrects a drafting error in Schedule 2 to the 2006 Act. Section 9 provides for consequential amendments to the Defence Act 1954. Section 10 provides for the Short Title of the Act and its commencement. This is a relatively short Bill, the provisions of which are limited and are intended to ensure the difficulties I have mentioned can be corrected as quickly as possible. It is not in any way a Bill which represents a full review of the operation of the Criminal Law (Insanity) Act 2006. I understand the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, plans to have such a review commenced in his Department subsequent to the enactment of this Bill. This Bill needs to be enacted as soon as possible to correct the difficulties mentioned. Accordingly, it is of necessity confined in its amendments to ensure it can be considered as quickly as possible by the Oireachtas. I look forward to hearing Senators’ views on the Bill. I commend the Bill to the House. Senator Eugene Regan: I welcome the introduction of this Bill and thank the Minister of State for presenting it to the House today. The Criminal Law (Insanity) Bill 2010 deals with two amendments to the Criminal Law (Insanity) Act 2006, namely, the fitness to be tried mechanism introduced in the 2006 Act and the lacuna in the law identified in a series of High Court cases. It is important and urgent that we address these matters. On the first issue in terms of fitness to be tried, the Bill deals with issues identified in the Irish courts and, in particular, the European Court of Human Rights in regard to the need for the accused to be able to participate in the trial of the action. Article 6.1 of the European Convention on Human Rights provides for the right of a fair hearing in respect of a criminal charge and Article 6.3 sets out the various minimum rights for anyone charged with a criminal offence. An example is the Stanford v. United Kingdom where the applicant claimed he had not received a fair trial as he was unable to hear the proceedings. The T&V v. United Kingdom, the Thompson and Venables, case also raises this type of issue. The Bill deals with the question of fitness to stand trial and with the issue of specialised medical evidence to be brought to bear in all cases resulting in psychiatric detention and for some time to determine the issue of fitness to stand trial, which should not be determined peremptorily without the ability of the parties to bring evidence to the court, in particular psychiatric evidence. The second major element is that of conditional discharge, a matter of certain urgency, in that the review board’s directions do not have binding force under the current legislation. While the board has been operational for two years and has the power to make recommendations in terms of future care, in particular in an out-patient capacity, it does not have the power to make these recommendations binding. The judgment of Mr. Justice Hanna in the J.B. v. The Mental Health (Criminal Law) Review Board highlighted the problem that can arise in this type of case. I welcome that the Bill addresses this problem in sections 6 and 7. Section 6, which provides that any conditions imposed by the board, whether for further detention, care or treatment in a designated centre or for post-discharge supervision, will henceforth be binding, deals with that anomaly. Section 7 deals with the specific point raised by Mr. Justice Hanna in regard to conditional discharge orders being tailored to the requirements of the patient. I welcome the Bill, the passage of which will receive the support of Fine Gael. Senator Denis O’Donovan: I welcome the Minister of State to the House and compliment him on the significant and magnificent work he is doing in the area of mental health. I support the Bill. The Minister of State through his portfolio has taken brave and strident steps in the area of mental health, in particular through the programme, A Vision for Change, which is magnificent and bold. All manner of road blocks have for decades, if not a century, been put in the way of changes in legislation and the attitude of the Irish psyche in regard to mental health. When I was studying law, some of the legislation in the area of mental health was based on the Victorian age. We have come a long way since then.  3 o’clockI understand from the Minister of State, having spoken recently to him about the important psychiatric wing at Bantry General Hospital, that he hopes to announce publicly in the Dáil his programme in regard to A Vision for Change. I await with awe this brave and bold programme. What the Minister of State is setting out to achieve is what many experts, psychologists, psychiatrists and legal experts have been talking about for the past 30 to 50 years. I wish him well with his programme. I have no doubt the current Government is committed to supporting this programme financially. Although the Minister of State may be criticised about the changes introduced in this area, the end will justify the means. The Minister of State has publicly pronounced that the Taoiseach and Cabinet are committed to providing financial support for his programme which will be effected during the next number of years. This is a major step for the Minister of State. It would be remiss of me not to acknowledge and compliment the Minister of State’s work in this area which has been single-handed from a political point of view While we sometimes lock horns politically, I welcome the positive remarks made by my colleague, Senator Regan, in broadly supporting the Bill. The legislation deals with two distinct and unrelated areas. It substantially alters the fitness to be tried mechanism introduced by the Criminal Law (Insanity) Act 2006, which was a bold step on the part of the previous Government, and it addresses a legislative lacuna identified by the Mental Health (Criminal Law) Review Board through a series of High Court cases. These are problems which could not have been envisaged. It is important the Minister of State and Legislature recognise particular decisions made in the higher courts of this land. In this regard, the Bill provides that the board can impose binding conditions on patients it proposes to release on conditional discharge from the Central Mental Hospital in Dundrum. There is no doubt there are a number of patients in the Central Mental Hospital who could be released conditionally if assessed by the director of mental health or a top-level clinician. We are always talking about beds in various hospitals. In that context, the freeing up of six or ten beds in the Central Mental Hospital would be a major step, as it would allow people on a waiting list perhaps to gain access. That would be a critical step and one that must be lauded. However, I add a rider that any such patients should only be released after the most stringent examination by the top clinicians in the hospital and on condition they would not become involved with drugs or alcohol. They might have to follow a programme of diligence such as that provided by Alcoholics Anonymous or a drug rehabilitation scheme. I am satisfied the necessary steps would be taken in that regard. The Bill deals with the substantial issue of a person’s fitness to be tried. In certain high profile cases, including murder cases, somebody might be deemed to be unfit by the court to be tried on the grounds of mental incapacity or because of illness, being unable to have cognisance of or regard to what is happening in court. The Bill also revisits the mechanism whereby individuals who have been found not guilty by reason of insanity or who are unfit to be tried are to be conditionally discharged. The Bill does not deal with persons who have been placed in psychiatric care through civilian mechanisms. It is important to note that it does not interfere with that particular provision. The principal themes of the Bill include improving the fitness to be tried mechanism to bring it into compliance with the European Convention on Human Rights, something which must be acknowledged and providing for the first time that discharge and post-release conditions imposed on persons by the Mental Health (Criminal Law) Review Board will be legally enforceable. These conditions will apply both to those who have been found unfit to stand trial and who have been found not guilty by reason of insanity. Section 10 provides that the Bill shall take effect on such a day or days as appointed by the Minister for Justice, Equality and Law Reform. I trust that this will be sooner rather than later. There is a plethora of other minor amendments made in the Bill. If it is appropriate, perhaps the Minister of State might give a flavour of the workings, including the successes and pitfalls, of the review board, a relatively new body, in which I have a particular interest. A political colleague of mine who is well known to the Minister has asked me to raise this point. Sometimes when such boards are established, there is a view that many of them are quangos. Unfortunately, the political system carries that historical baggage. I remind the House, however, that this is a most important board. Many of those serving on it are legal and health experts, including clinical psychologists and psychiatrists. I am subject to the Minister of State’s views but is there an obligation on the board, annually or bi-annually, to lay before the Houses of the Oireachtas a confidential report on its workings and how it deals with issues? Has this matter been considered and, if not, will it be examined in the future? Common law presumes that, unless the contrary is proved, everybody above the age of capacity is sane and responsible for his or her actions. The idea of fitness to stand trial refers not to an individual’s capacity at the time of the alleged offence, but rather to the state of mind that the law regards as adequate to permit a satisfactory level of participation in the trial process. It should be noted that fitness to stand trial is a mixed medico-legal term which extends to mental states that in some cases fall far short of commonly accepted notions of normality. It is important to note the difference. In a criminal trial the concept distinguishes between the accused’s state of mind at the time of the criminal act — be it rape, murder or manslaughter — and his or her mental capacity a year or two later when facing trial. As these can often alter or deteriorate, the distinction should be noted. Section 4 of the 2006 Act contains a non-exhaustive list of factors to be considered when the fitness to stand trial of an individual is in question. It includes whether the individual is precluded by reason of mental disorder from pleading to the charge, in other words, does he or she understand and can he or she plead guilty or not guilty in answer to the question inevitably put to the accused? In addition, is the individual capable of instructing a legal representative? That is, obviously, a major shortcoming in the 2006 Act. In the case of an indictable offence which may be tried summarily, can the individual elect for trial by jury? We take a lot of this for granted, but it is very important. Historically, in some instances, great prudence was not taken by trial judges in dealing with mentally ill persons. This was the case in directing a person who might have committed a heinous crime but who to the lay person might have appeared capable with full mens rea. However, a medical expert might not have been in a position to decide whether the accused wanted to be tried by judge and jury or to plead guilty or not guilty. In the past 20 years the courts have become more wary of becoming engaged in determining an accused person’s mental fitness. It is unusual that less than four years after the 2006 Act became law, the House is considering amendments to it, albeit valid ones. The catalysts for the two major amendments proposed are High Court decisions, to which we must have regard. Section 4 of the 2006 Act also deals with determining the mental character of an accused person who, in the case of a trial by jury, may wish to challenge a proposed juror to whom he or she objects. Unfortunately, this happens too regularly in some serious, high profile criminal trials. If a proposed juror dresses or looks the wrong way, he or she can be challenged by subtle and able people. The other point made about the Act concerns the understanding of evidence, which is also important. The Bill must be welcomed. It is sensible. The Minister of State said the Minister for Justice, Equality and Law Reform intends to introduce substantive legislation in the area of criminal law dealing with mental illness and insanity, which is welcome. I admire the tremendous strides the Minister of State has made in this area. He represents a breath of fresh air to his Department. I wish him ongoing success. I have no doubt that between now and the general election in June 2012, which will not be long coming, he will have concluded many of his plans and they will have been implemented. Senator Ivana Bacik: I welcome the Minister of State to the House and apologise for not having been present for the entire debate as I was attending two joint committee meetings. On behalf of the Labour Party, I welcome the Bill which makes some sensible amendments. I would like to see some further amendments which I shall outline shortly. The Minister of State stated the Bill does not represent “a full review of the operation of the Criminal Law (Insanity) Act 2006”, and clearly it does not constitute a full review of that Act. However, I am glad the Minister for Justice, Equality and Law Reform plans on having a full review once this Bill has been enacted. I did some research on the 2006 Act and spoke on it a number of years ago in Trinity College at a conference on evidence-based mental health services for Ireland. I was very fortunate to hear from psychiatrists and medical practitioners who have a very different perspective to offer on this Act and also on the Mental Health Act 2001, which came into force on 1 November 2006. The implication of those Acts has been a welcome change in the focus of our mental health services. We have moved towards a more rights-based approach, which I very much welcome. I wish to quote Dr. Anne Marie O’Neill, who has written one of the leading texts on Irish mental health law, who pointed out: [T]he philosophy of the law has progressed significantly from the days of incarceration and control of “lunatics” as a matter of public order when the issue of rights was considered anathema in the light of the “problem” to be solved. It has moved from this stage to a welfare philosophy where the state’s intervention was perceived as benign and as in the interests of the welfare of the person with mental illness so that the issue of rights was considered irrelevant. Now it is faced with a new challenge: that of acknowledging that the recognition of the rights of the person with mental illness is an essential ingredient of the ethical carer/patient relationship.
Moving away from that incarceration model to the welfare model, we still have not moved fully to the recognition of the rights of persons with mental illness. However, we are moving that way and the Bill represents a step in that direction. I shall make a few more general points before talking more particularly about the amendments in the Bill. At a general level, we have always seen in the criminal law — I speak as a practising criminal barrister — an uneasy relationship between the criminal justice system and the area of medical, psychiatric and psychological sciences. The criminal law is of particular relevance because there has been a relatively frequent occurrence of cases in which crimes have been committed by persons with mental disorders, often by reason of those mental disorders, as a result of which they may not have been able to form a requisite intent for a crime or they may not have had the capacity to understand the criminal justice process. In the criminal justice system we have wrestled with the difficulty of accommodating recognition of persons with mental illness. It is a matter of shame that so many persons with mental illness continue to be incarcerated in our prisons when in fact they require medical treatment. We have seen the development of a defence of insanity at common law and very overdue reforms of that in the 2006 Act. However, although the 2006 Act is clearly more enlightened than the legislation that previously governed this area, it is most unfortunate that the 2006 Act and the Bill before us continue to use the judgmental and outmoded word “insanity” in the title, especially as our mental health legislation and our psychiatric services would no longer use that language. There is a corollary, which is that the relationship between the 2006 Act and the Mental Health Act 2001 remains somewhat unclear. In particular, different definitions of mental disorder are used in both. The 2001 Act, which governs the civil law aspects of voluntary and involuntary detention in psychiatric institutions, deals with a narrower definition of mental disorder as being a psychiatric disorder necessitating treatment, whereas the 2006 Act covers a much broader definition of mental disorder, governing persons who would not in the psychiatric sciences be regarded as suffering from psychiatric illness at all. To some extent there are inevitable differences between the definitions on the mental health side and the criminal justice side, which is unfortunate. Dr. Simon Mills, who has written extensively on the subject, said that retaining these two very different categories of so-called insanity or mental disorder may lead to difficulties. One of the difficulties is now being acknowledged in the Bill, which is that a person may be discharged from psychiatric care but subject to certain conditions. This was a major flaw in the 2006 Bill. |