Criminal Law (Insanity) Bill 2002: Second Stage.

Wednesday, 19 February 2003

Seanad Eireann Debate
Vol. 171 No. 10

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Question proposed: “That the Bill be now read a Second Time.”

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  The Criminal Law (Insanity) Bill 2002 is important and long awaited legislation. I have just been reflecting on how long. In 1978 the former Supreme Court judge, Mr. Justice Henchy, reported and appended to his report a draft Bill. The mills of God grind slow but grind exceedingly fine. Most agree that our law on insanity is in need of reform, a view expressed for some time by the Judiciary, legal practitioners, commentators, academics and the medical profession, particularly by those members practising in the field of psychiatry.

It would be accepted by reference to the totality of criminal proceedings that the raising of the defence of insanity to a criminal charge, usually one of murder, is comparatively rare. However, that in no way reduces its importance in the general sphere of the criminal law because insanity raises fundamental questions about the whole notion of criminal responsibility which is premised on the principle that the individual is personally answerable to society for his or her actions. This accountablility arises from the fact that the individual will be held responsible for his or her actions. However, the criminal law recognises that in circumstances where the individual does not have the mental capacity to control his or her conduct as a result of mental disorder, no blame or liability will attach to him or her.

An acquittal based on the present special verdict of guilty but insane has exceptional consequences for the accused person because it subjects him or her to a special regime of detention. At present that means that the person is held in the Central Mental Hospital. The State bears two main burdens of responsibility in these cases. The first arises because it is paramount in the public interest to curtail the freedom of the person until he or she no longer poses a threat to society at large. The second arises from the fact that the State has to balance this duty with its responsibility to preserve and protect the human rights of the person concerned.

It has been said with some degree of understatement that this area of law has what are [767]termed fundamental social and moral implications. I have just outlined two. However, there is a third consideration because the fundamental issue in any debate on insanity and the criminal law – something that goes right to the heart of the matter – is the moral distinction that needs to be drawn between the bad and those who do not necessarily have the mental capacity to commit crimes. At this point I want to sound a word of caution which has to do with the intention and policy considerations behind this Bill. I can put those words of caution no better than has been expressed by noted commentators, Finbarr McAuley and Paul McCutcheon, in this jurisdiction in their leading authority on the issue, Criminal Liability:Legal and medical evaluations of the conditions that might properly attract the label “insanity” can differ profoundly. The law regards several conditions, such as epilepsy and hypoglycaemia, that medical professionals do not classify as mental disorders as a basis for the insanity defence. This highlights the different perspectives of the relevant disciplines and it should be realised that the defence raises a legal question of responsibility, not an issue of medical diagnosis and classification. Nevertheless, it is invariably the case that medical evidence is adduced at trial and, it can be assumed, is taken into account in the determination of the defendant's sanity. Thus, while a degree of congruence between the medical and legal evaluations can be expected, the ultimate resolution of the issue is one of law, not medicine.

The main purpose for bringing this legislation before the House is to clarify, modernise and reform the law on criminal insanity and fitness to be tried to bring it into line with the jurisprudence of the European Convention on Human Rights. As Members of this House will probably be aware, a Bill to give effect to the convention in Irish law in line with an obligation under the 1998 Good Friday Agreement has reached Committee Stage in the other House. The Bill before this House, in addition to dealing with some general issues, contains more detailed provisions on substantive matters such as fitness to plead, a statutory definition of criminal insanity, a new verdict of not guilty by reason of insanity – instead of the older verdict of guilty but insane – and a new plea of guilty but with diminished responsibility in cases of murder.

To appreciate fully the importance of and the need for this Bill it should be noted that most of our legislative provisions dealing with criminal insanity date back to the 19th century and some to the early 1800s. However, the origins of the insanity defence actually go back much further, they can be traced back at least to the 13th century. However, even with that early realisation of the difficulty, the common law was very slow to recognise a defence to a criminal charge based [768]on insanity. Whatever amelioration it did provide from the severity of the sentence, the quality of mercy tended to be somewhat strained until at least the 18th century.

The attitude of the time is best illustrated in the writings of the noted criminal jurist, Hale, when he stated, metaphorically one hopes, that insanity was no defence unless the defendant resembled a beast rather than a man. It was not until the case of Rex v. Hadfield in 1800 that the modern defence of insanity began to evolve. The defendant in the case thought he had to die in order to save the world. His problem was that as suicide was a mortal sin and as such a sin above all others, he could not kill himself and hope to avoid eternal damnation. He chose instead to fire a shot at the King, which was a capital offence, and it was held that he was not accountable for his actions because of insanity and he was acquitted. History does not record if his disappointment drove him to further despair.

The foundation case in so far as modern insanity in the criminal law is concerned is that of Rex v. M'Naghten in 1843. In that case the defendant suffered from an insane delusion that Sir Robert Peel, a predecessor of mine in a different jurisdiction, was persecuting him and he believed that Peel had to to be killed. However, he killed Peel's unfortunate secretary by mistake. At his trial M'Naghten was acquitted because of insanity. The decision of the court caused so much public outrage that the House of Lords requested the Law Lords to explain the defence of insanity. The answer formulated by the Law Lords has come to be known as the M'Naghten Rules which have formed the basis for the development of the defence of insanity, albeit within extremely narrow limits, in the countries with common law systems ever since.

It is clear, however, that with the development of modern psychiatry and a greater understanding of the underlying causes of mental illness and its associated conditions it has been apparent for some time that the criminal law dealing with insanity needs to be clarified and updated. Serious concerns have been expressed for some time by judges, lawyers and psychiatrists that the main aspects of the law in this area are in need of review. The Criminal Law (Insanity) Bill 2002 addresses these concerns by implementing the main recommendations of the third report in 1978 of the interdepartmental committee on mentally ill and maladjusted persons which was chaired, as I said, by Mr. Justice Henchy.

A person's mental health in relation to criminal law proceedings is relevant in two ways. First, the person must be fit to plead to the charge. If it is shown that the person, because of insanity, is unable to understand the charge against him or the difference between guilty and not guilty, or is unable to instruct counsel, challenge jurors, or follow the evidence, the trial cannot proceed. This is essentially because its fairness cannot be guaranteed due to the person's condition. The test at common law to be followed in such [769]instances was laid down by the Supreme Court in the State (Coughlan) v. Minister for Justice (1968). This test is not limited to any particular definition of insanity; it simply assesses the person's ability to comprehend what is going on. If the person is found to be unfit to plead, section 2 of the Criminal Lunatics Act 1800 provides that he or she should be detained in strict custody until the pleasure of the Government be known.

Second, where a person is found fit to plead, the trial will proceed, but the person may raise the defence of insanity. The law will presume that the person is legally sane and, if over the age of 14 years, is fully accountable for his or her actions. However, if the person is able to show, on a balance of probabilities as opposed to proving it beyond reasonable doubt, that at the time the offence was committed, he or she was legally insane, then he or she will have a defence. In these circumstances, the person will be deemed to have lacked the necessary mens rea, or guilty mind, and should not, therefore, be held accountable. The test applied here is based on the M'Naghten rules to which I have already referred. Those rules require that it must be shown that a person must have suffered, at the time of his or her act, from a defect of reason due to disease of the mind so that he or she did not know what he or she was doing, or did not know that it was wrong.

Strictly speaking, the M'Naghten rules apply to a person who is suffering from insanity which manifests itself in insane delusions. Nevertheless, the rules were accepted as the general test for insanity in Irish law, despite the fact that doubts had been expressed as to whether they represented a comprehensive statement of Irish law on the issue. However, following the decision of the Supreme Court in the People v. Hayes in 1965, and its subsequent approval by the Supreme Court in Doyle v. Wicklow County Council in 1974, it is clear that the M'Naghten rules are not the sole and exclusive test for the defence of insanity in Ireland. The decision in the latter case means that a third factor – an irresistible impulse brought about by mental illness – which the court said “debarred [the defendant] from refraining from committing the act”, may also be taken into account. This extension of the rules to comprehend a new criterion of volitional control goes further than a strict interpretation of the M'Naghten rules would have allowed. Thus, Irish law seems to be more aligned with the formulation of insanity as set out by Sir James Fitzjames Stephen in his Digest of the Criminal Law in 1891 – an early attempt in Victorian days to provide a codification of the criminal law – which admits of the possibility of a disease of the mind preventing a person from controlling his or her conduct. It is interesting to note that Sir James Fitzjames Stephen codified the English criminal law, as I am currently engaged in a similar project with regard to our domestic law. Mr. Finbar McCauley, to whom I referred earlier, is [770]chairman of a working group that is embarking upon that exact task.

Sir James Fitzjames Stephen's efforts to bring a codification of English criminal law before Westminster constantly fell foul of parliamentary vagaries, occasioned in particular by Irish MPs who were seeking home rule. Senators will be interested to know about that footnote to Irish history.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The ends justified the means.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  That is correct.

I will deal now with the main provisions of the Bill in more detail. Section 1 deals with definitions, and two matters in particular are worthy of special mention. The first concerns the definition of designated centre, which is further explained in section 2. This section follows section 5 in the draft Bill proposed by the Henchy committee in 1978 and it provides that it is a matter for the Minister for Health and Children – in consultation with the Minister for Justice, Equality and Law Reform in the case of the designation of a prison as such a centre – to decide where is the most appropriate place for the treatment of persons committed to detention under the Bill. The designation of a prison as a designated centre, which was not recommended by the Henchy committee, is included to cater for situations where it might be appropriate to detain a person in a prison rather than in a psychiatric hospital.

The second issue arising from section 1 concerns the definition of the term “mental disorder” which is defined for the purpose of findings of “unfitness to be tried” in section 3, for the purpose of a verdict of “not guilty by reason of insanity” in section 4, and for the purpose of “diminished responsibility” in section 5. It is a definition for purposes of establishing criminal liability and includes a person suffering from a mental illness or handicap, dementia or any disease of the mind, but excludes intoxication by alcohol or other substances.

While the definition is not fully inclusive, the essential element for the court, for example where criminal insanity is pleaded, is whether the accused had the mens rea, or guilty mind, to commit the offence for which he or she is charged. The definition of mental disorder plus the criteria in section 4 are intended as the test for the court in coming to a decision on that issue.

Section 3 deals with the issue of fitness to be tried. This term is being adopted instead of the term fitness to plead which is used in the relevant provisions of the Lunacy (Ireland) Act 1821. The latter are being repealed. The section contains a new statutory definition of fitness to be tried based on the existing common law, upon which I have already commented. It is also provided that the question of fitness to be tried will in future be determined by a court, including the District Court, without a jury. That is a change from the current situation. I have had experience of conducting cases in which a jury was empanelled to [771]determine the fitness of the accused to stand trial, even though – in the case in which I was involved, at any rate – a subsequent jury was empanelled to try the question of guilty or innocence once the first jury found the accused was fit to be tried.

It may be noted in this regard that fitness to be tried is a medico-legal issue; it does not relate to the guilt or innocence of a person. If the person is found unfit to be tried, the proceedings will be adjourned and the court will then determine how the person should be dealt with until such time, if ever, as he or she has recovered. As the person will not have been found guilty of any crime, he or she will only be detained if likely to be dangerous to himself or herself or to others or in need of in-patient treatment. Safeguards are provided in the section to reduce the possibility of persons found unfit to be tried being detained unnecessarily under the criminal law. In effect, these provisions provide that where, despite the fact that the accused is unfit to be tried, the court is satisfied that there is a reasonable doubt that he or she committed the alleged act, it will acquit him or her. Accused persons may be unfit to be tried but if the court is, nonetheless, in a position to acquit them and say they are innocent, they should not be denied the benefit of having their innocence established merely by virtue of the fact that they have had some intervening mental illness. It will then be a matter for the relevant authorities acting under the civil law – that is, the Mental Health Act 2001 – to take whatever measures they may deem necessary in relation to the persons concerned.

Section 4 provides for a new verdict of not guilty by reason of insanity to replace the existing special verdict of guilty but insane, and sets out the parameters of the test for insanity which is based on the existing common law position, including recent Irish case law. I might emphasise again that the test to be applied will be related to the time of the alleged commission of the offence and not the time of the trial. The section also provides that after a verdict of not guilty by reason of insanity is returned, the court will then consider the mental condition of the person by reference to the Mental Health Act 2001 to determine whether he or she should be released or detained on the grounds that in-patient treatment is required because the person may be dangerous to himself or herself, or to others because of their mental condition. That represents a change. In other words, once a person has been found not guilty on this ground, the decision as to how he or she should be dealt with thereafter is taken not by reference to the criminal law definitions of insanity but by reference to the civil law relating to mental health, as contained in the recently enacted statute which updated the law in that area. This approach is in accordance with obligations arising under the European Convention on Human Rights which will shortly be given further effect in Irish law in accordance with the [772]provisions of the European Convention on Human Rights Bill 2001 which I am piloting through Committee Stage in the other House and hope will be debated in this House soon.

Section 5 introduces into Irish law the concept of diminished responsibility which concept does not exist in law. It is only being applied in the case of murder which carries a mandatory sentence of life imprisonment. It is because of the mandatory sentence of life imprisonment that it is appropriate to distinguish between cases where diminished responsibility is a factor and cases in which it is not. The effect of this will be that if diminished responsibility is successfully pleaded, a conviction for manslaughter will be recorded with the sentence, at the discretion of the court, being any term of imprisonment up to life. There is no need to apply the concept in the case of other crimes where there is no mandatory sentence. In those instances the judge can take into account the mental condition of the convicted person when considering what sentence to impose. The availability of the diminished responsibility verdict provides an alternative for juries and should reduce the danger that a jury will return an insanity verdict when faced with a person whom they regard as not being completely sane, even if he or she does not meet the legal criteria for insanity.

Sections 6 and 7 deal respectively with the question of appeals to higher courts from decisions of lower courts that a person is unfit to be tried or is not guilty by reason of insanity. Under existing law findings of unfitness to plead and fitness to be tried or verdicts of guilty but insane are not regarded as convictions. Consequently, there is no provision for a person to appeal against them. Section 8 provides that appeals may be made by the defence or prosecution against a decision of the court of trial to order or not to order the detention of a person in these cases.

Section 9 provides for the establishment day provision in so far as it relates to the setting up of an independent mental health review board provided for in section 10 and the First Schedule to the Bill. The mental health review board will replace the existing ad hoc advisory committee and, in order to comply with our obligations under the European Convention on Human Rights, will act independently of the Executive, in this case, the Minister for Justice, Equality and Law Reform or the Government. Its main function will be the regular review of the detention of persons found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by order of a court. The board will be made up of a chairperson who must have not less than ten years' experience as a practising barrister or solicitor or be a judge or former judge of the Circuit or Superior Courts and such other number of persons as the Minister in consultation with the Minister for Health and Children shall appoint, at least one of whom must be a consultant psychiatrist. The term of office of members is [773]five years and provision is made for reappointment. It is provided that the Minister may appoint the staff of the board under the usual conditions, and that such staff shall be civil servants.

Section 11 sets out the various powers of the board, including the power to hold sittings, take account of court records, assign a legal representative to the person seeking review, require the attendance of such person before it, obtain evidence and demand the production of information and documents, pay the reasonable expenses of witnesses and administer oaths. The failure of persons to attend before the board or comply with requests by it for information or documents, or where a person is in contempt of the board are offences punishable by a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

Section 12 deals with the various ways in which the detention of persons found not guilty by reason of insanity or unfit to be tried, whether they are in a prison or other designated centre, including persons detained under military law, may be reviewed. In the case of a prison this applies to the governor who shall act on the advice of an approved medical officer and in the case of a psychiatric hospital, the chief medical officer. The review board has the responsibility for ensuring the detention of such persons is reviewed at six monthly or at such lesser intervals as it considers appropriate. In cases where a person who has not been acquitted is no longer unfit to be tried, the court of committal has to be so informed and shall order that the person be brought before it to be dealt with as it thinks proper. In the case of detention under military law the appropriate authority has to be similarly informed in order that the court martial shall be reconvened.

Section 13 provides for the temporary release, transfer and other matters related to detained persons. The purpose is to arrange for such matters without the need to apply to the review board every time. It is provided that the consent of the Minister must be obtained to ensure the public interest is safeguarded. The Minister for Health and Children might also have an interest, particularly in the case of transfers to another designated centre which is also covered in the section.

Section 14 ensures evidence as to the mental condition of an accused person shall not be raised by the defence during the course of a trial, unless notice of intention to do so has been given to the prosecution in accordance with rules of court. This is designed to ensure neither the prosecution nor the court will be taken by surprise by the production of such evidence.

Section 15 applies the provisions of the Bill on the review of detentions to persons already in detention before the Bill comes into operation. Section 16 deals with consequential technical changes to the relevant provisions in military law – the Defence Act 1954 as amended – so as to [774]maintain consistency between courts martial and civilian courts.

Section 17 is the usual expenses provision. Section 18 provides for grants to be made to the mental health review board established under section 10. Section 19 is a repeals and transitional provision to be read in conjunction with the Second Schedule. Section 20 provides for the short title and commencement of the Bill. The First Schedule sets out the provisions applicable to membership of the mental health review board and its procedures.

I regard this Bill as an important step in the development of statutory rules and guidelines in a difficult and complex area of the law. As with most criminal legislation, it strives to achieve a balance between two opposing objectives. On the one hand and in common with all criminal law measures, it seeks to protect society at large; on the other, it also seeks to protect members of our society who suffer from mental disorder in order that they will not be answerable for crimes where they had not the mental capacity to commit those crimes and, in addition, to ensure those detained under the provisions of the legislation have an independent review body to keep their detention under continuing periodic review. I commend the Bill to the House.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I welcome the Minister who is spending a lot of time here. I welcome the Bill which is long overdue. I enjoyed the history lesson given by the Minister. The Bill sets out to bring our outmoded laws on insanity into the modern era and to affirm and codify Irish common law decisions on criminal insanity. It provides for comprehensive treatment, both legally and medically, for those whose mental state may make it impossible to participate in the trial process by providing a framework for determining fitness to be tried. It introduces the long overdue notion of diminished responsibility and sets up a system for the ongoing review of the need to detain those who have offended while suffering from mental disorder.

“Mental disorder” is defined in section 1 as including mental illness, mental handicap, dementia or any disease of the mind. Intoxication is specifically excluded. The Minister mentioned other substances as well as intoxication with which I agree but they are not included in the Bill. I suggest that other substances should also be included. Whether a given individual comes within this widened definition will continue to be a matter for expert evidence and there will always be controversial cases. No doubt, many psychiatrists will continue to assert that individuals suffering from a personality disorder, even a severe disorder, fall outside the defence. This continues to be an area of medico-legal controversy, both in Ireland and other jurisdictions. Not specifically providing for such persons in the Bill will leave open the question of whether such individuals can avail of the defence.

[775]The test for the verdict of guilty by reason of insanity in section 4(1)(b) is almost identical to that proposed in the Digest of Criminal Law by Sir James Stephen. In Doyle v. Wicklow County Council [1974] IR 55, the Supreme Court effectively accepted the defence as stated in section 4(1) (b)(iii) while also accepting the M'Naghten Rules in section 4(1)(b) (i) and (ii). It is arguable that section 4 merely restates the current Irish position on the law. Should the law not have been adapted rather than restated? I accept what the Minister said in his report concerning a third factor in regard to this.

I welcome section 4(2) and (3) which provides for the ongoing assessment of the mental health of a person. Section 4(2) obliges the court to commit to hospital in the old way only if the court has evidence that the accused is still suffering from a mental disorder and is in need of in-patient care or treatment. Section 4(3) provides a completely new power to remand a person in custody for assessment, initially for 28 days, but extendable for up to six months. I welcome this measure.

A consultant psychiatrist must now assess and report on the detained person, and the court can only commit a person without limit of time, as was the practice heretofore, on receipt of evidence from a psychiatrist that detention is necessary. There is no power in the Bill for the court to remand such a person on bail for the assessment. Will the Minister consider detention of certain convicted persons found guilty but insane?

The new mental health review board is also welcome. This is an idea of Professor McAuley, lecturer in criminal law and criminology in UCD. The board will require significant funding and it is essential that it should have the judicial powers necessary to carry out its work.

Section 6 dealing with appeals, fitness to be tried, seems unfair in allowing an appeal by the State of a decision that an accused is unfit to be tried but not an appeal of an accused of a decision that he is not unfit to be tried. The same can be said of section 7.

In general I support the Bill but I will raise some issues later when we get the opportunity to put down amendments.

Mr. Kett: Information on Tony Kett  Zoom on Tony Kett  I welcome the Minister and thank him for introducing this important legislation. Many elements of the existing legislation have probably been there since the 1800s when words such as “moron” and “imbecile” were used in medical terms and a criminal could claim lunacy as a defence.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Now those terms are confined to politics.

Mr. Kett: Information on Tony Kett  Zoom on Tony Kett  Absolutely. It has taken considerable time to update the law and the Minister is to be congratulated on doing it so early in his term of office. A plethora of legislation faces him but the [776]fact that he has prioritised this indicates the need he has seen for clarification and for the development of this area of the law.

It is a long time since psychiatrists referred to the mentally ill as lunatics but the term still exists in the law on criminal insanity. A person arguing that he or she should be excused from liability on a criminal charge by virtue of a mental disorder still has to plead for a special verdict under the Trial of Lunatics Act 1883. It is not surprising that both the Minister and practising lawyers are concerned that this law should be brought up to date.

The new Bill affirms and codifies Irish common law decisions in regard to criminal insanity. It provides a comprehensive treatment, both legally and medically, for those whose mental state may be such that it is impossible for them to participate in a court of law. It also provides a framework for determining a person's fitness to be tried. It introduces the long overdue notion of diminished responsibility and sets up an ongoing review for the need to detain those who have offended while suffering from a mental disorder.

The kernel of the Bill is the new definition of what constitutes an excusing mental disorder. This is reduced to a single issue defined by the Minister as a mental disorder. Section 1 defines mental disorder as including “mental illness, mental handicap, dementia or any disease of the mind but does not include intoxication”. I am delighted it excludes intoxication, which is a state brought on by ourselves.

People have asked our Leader to invite the Minister to discuss the issue of crime. No doubt intoxication will feature largely in that debate. It is one of the worst offences in terms of crime. In cases where people have been kicked to death or near death the perpetrators have generally been intoxicated. In my opinion the use of a boot in an assault is as bad as plunging a knife in someone's chest. We need to examine the law on that and perhaps mandatory sentencing should be considered.

There will be continued argument as to who falls inside or outside the definition of a mental disorder, particularly in the case of personality disorder. No two psychiatrists, prosecutors or lawyers will agree as to whether the definition of personality disorder falls inside the definitions as outlined in section 1. Doctors have been inclined to emphasise the element of treatability in regard to the definition of mental illness. As dementia and mental handicap have now been brought into this Bill, doctors will begin reconsidering the notion of treatability because neither is a treatable condition.

Under the provision of the 1883 Act, the court is obliged to commit a defendant to the Central Mental Hospital for ongoing assessment until he or she is released by the executive. The Minister mentioned the Gallagher case. Prior to that it was assumed that the courts would decide when a person found insane would be released. The Supreme Court handed down that verdict to the Government and I understand an ad hoc commit[777]tee now makes the decisions. The problem is that the decisions of the ad hoc committee, which is under the Minister's jurisdiction, are not binding on the Executive. I am happy all of that has changed in this Bill.

The other major change in the Bill is the introduction of verdicts of diminished responsibility. Its omission has meant a serious gap in Irish criminal law, particularly as it applies to murder. In essence, a defendant will now have to show a mental disorder as defined in section 1 but not one so severe as to merit an insanity defence. The defence operates on the presumption that it can reduce a plea from one of murder to one of manslaughter. For many years juries have been faced with a stark decision, whereas this change will allow a more sympathetic view to be taken.

The Bill provides that only a jury can decide on diminished responsibility, which is also a good development. Diminished responsibility cannot be put forward as an acceptable plea. I am informed that lawyers who practise in the Central Criminal Court are quite critical of the narrow basis of the insanity verdict as they find it difficult to convince a jury to convict someone on that basis. The Gallagher and O'Donnell cases have made juries nervous because people feel that if they acquit someone on the basis of insanity, he or she may walk free. However, this is not the case. The availability of diminished responsibility will, I believe, mean that many cases where a substantial element of mental disturbance is involved, but is insufficient for an insanity plea, will allow juries treat cases in a more sympathetic and humane way.

The remaining substantial area in the Bill is section 3 regarding fitness to plead, which will now become known as fitness to be tried. It both restates the existing law on the subject and provides for the disposal of people found to be unfit. As previously, either the prosecution or the defence can raise the issue. The person must show the appropriate level of disorder as defined in section 1. They must essentially be unable to participate in any meaningful way in the case against them by reason of their disorder. The determination in this case is made by the judge, which I agree is appropriate. In the event of someone being unfit, the power to commit arises but is optional.

There is also the possibility for a prosecution to appeal against the judgment of the court. The court may also remand a person in custody for the purpose of assessing them on the need to commit. It is at that time that the review board comes into play. As defined in section 11, the review board has the option of speaking to people who have already given evidence in the case – psychiatrists, consultants, etc. – and I welcome this.

In light of the time it has taken to bring about these changes, I am satisfied the Minister will not have too much trouble getting them speedily through both Houses of the Oireachtas. Anyone in his or her right mind would push the legislation [778]along because it is long overdue. The diminished responsibility provisions may well produce significant savings and resources if trials are shortened by virtue of agreement by both sides as to the appropriateness of a verdict in a particular case.

I am in complete agreement that our insanity laws are outdated. I congratulate the Minister on bringing us into the 21st century.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I also welcome the Minister and I warmly welcome the Bill, which is long overdue. It is difficult to understand why a previous Minister for Justice, Equality and Law Reform did not bring it forward at an earlier stage, particularly when one reads so much of the good sense in the 1978 Henchy report that was incorporated into the Bill. I am grateful to the Minister for doing so, because it has been shameful to read newspaper reports on some court cases where people were obviously mentally ill and yet were being tried before the courts as though they were not.

High profile murder cases get most media attention because mandatory sentencing makes it essential that, if appropriate, a plea of insanity be brought forward. However, it is also important in the District Court where there are summary charges against people who are mentally ill. In some cases they may not been taking their tablets or are homeless. If we hear voices it does not matter if we go around the house shouting their owners, but if one is living rough and starts shouting at people in the street one can easily find oneself arrested on a charge of breach of the peace. What these people require is supervision in order to get them back on track. In the past, if one of these people was hungry and stole bread and milk from a shop they would have been in a very serious position. However, the legislation, which is good-hearted in nature, will allow something to be done about such cases. While high profile trials attract most attention, such attention will also be important in the type of cases to which I refer.

I have some difficulty with one area of the Bill. The last paragraph of the explanatory memorandum dealing with financial implications states that it is not anticipated that the proposals in the Bill will have significant financial or staffing implications but that there will be some extra costs associated with the new mental health review board because of its responsibilities as set out in the Bill. Those responsibilities will be more extensive and onerous than those of the ad hoc advisory committee the board is replacing. However, if the Bill is to be properly implemented, there will be substantial costs involved.

The type of cases I described are not currently getting sufficient attention within the community. While the Department of Justice, Equality and Law Reform will not have to bear the expense, the Department of Health and Children will be obliged to do so. Despite the vastly increased amounts of money being spent within the health services, the percentage spent on mental health has decreased from 9% some five years ago to [779]7% at present. Money will have to be spent in this area so that the legislation can be properly brought forward. There are many people who run into trouble with the law due to mental illness because there are insufficient hostels for them and too few community psychiatric nurses or community psychiatrists to deal with them.

The Minister said there are medico-legal issues at stake. I can assure him I have been receiving much representation regarding this matter. His contribution helped to explain some of the differences in the definitions of mental disorder in the Bill and in the Mental Health Act 2001. Both the Minister and Senator Kett referred to the issue of personality disorder and its treatability. I attended a meeting of the Irish Penal Reform Trust before Christmas which dealt with the treatability of personality disorders. It was attended by some psychiatrists and psychologists from England who seemed to give some hope on that front. However, the majority of experts say that such people are untreatable and are only disruptive in the institutions in which they are placed.

Henchy considered personality disorders in varying degrees. For example, mental disorder is described as mental illness or mental handicap but does not include violent personality disorder. Violent personality disorder is defined as a persistent disorder or disability of personality which manifests itself in abnormally violent or aggressive behaviour. The point was made that psychiatrists distinguish between mental disorder and personality disorder and state that the latter, of itself, will not exonerate a person from criminal responsibility if he is shown to have the guilty intent, the mens rea of which he is capable. If his condition is persistently violent, his own safety and the safety of society require that special measures be taken for his custody and care. It was suggested that special institutions be set up for such persons.

I know that psychiatrists are very anxious about people being convicted on what they describe as a very nebulous definition. I do not know what we can do about this but it is a very serious issue. Some of my correspondents fear that we will have people pleading that they have a personality disorder to get off on lesser charges. I presume we will be able to discuss this serious issue more widely on Committee Stage.

While I can understand there is a legal problem, I also understand the point of view of psychiatrists. There are people whose conditions may be treatable within a few years. Who would have said 30 years ago that schizophrenia and bi-polar disease would be so well treated now? We must remember that there may be progress in psychiatry which will allow people to be treated in the future. This is certainly an area which we will have to tease out quite a bit.

There are differences in the definitions of mental disorder in this Bill and the previous Act. The definition in the previous Act comes in after a decision has been made as to whether the person [780]is fit to be tried or if it has been found that he or she is insane. I think I understand this now. It will be a great help to be able to bring this to those who have been in contact with me.

The Bill will allow a judge to ask for a psychiatric opinion almost immediately, which is very good. It has been suggested to me that the psychiatrist who comes to the court should be someone who is involved in the unit to which the person is to be referred. That seems quite sensible because there is no point in trying to refer people to units where they will not be accepted. It has also been suggested to me – I am particularly talking about summary offences – that perhaps people do not have to be sent to an in-patient centre. By the time a person has appeared in court he or she is probably back on tablets and much better with the result that admission to an institution, even for a few days, would be counter-productive. It might be possible to consider this. It frequently happens that someone recovers rapidly and the police and courts have been good in dealing with such individuals. We might consider this on Committee Stage.

Concern has been expressed at the fact that section 13 allows for a conditional discharge of a patient by the psychiatric review board. However, the patient is not obliged to continue treatment. Should the legislation not require patients to agree to be supervised when they leave hospital? Otherwise there might be a recurrence of the original problem. This difficulty presents itself even in civil cases where people are not obliged to accept treatment, even if they have been running into trouble because of not accepting treatment or taking medication.

A plea of irresistible impulse has been in place for a long time. There is no accord between psychiatrists and the legal profession about this and there is a constant fear that some people will claim irresistible impulse in situations such as paedophilia, for example. This problem will have to be examined carefully on Committee Stage.

The diminished responsibility provision is to be much welcomed. This will refer to a person who is short of being defined as insane under the various provisions we have had in place but who has an abnormality of the mind. In the United Kingdom the definition of diminished responsibility is much larger than that considered in the Bill. Those who have had accidents resulting in brain injuries, for example, can be deemed to suffer from diminished responsibility. Perhaps we could look at the British legislation and see how it could apply here. Diminished responsibility also appears to be an acceptable plea to the Director of Public Prosecutions in the United Kingdom, which will not be the case here. Perhaps we could consider this also. The courts should be permitted to reduce a murder charge to one of manslaughter. However, it is important that we include all those we really mean to include. That is the reason I say it might be as well to look at the whole United Kingdom legislation.

With regard to the mental health review board, [781]I was more taken by the review board suggested in the Henchy report which recommended that there be two psychiatrists on the board. That would be well worthwhile. There would have to be a psychiatrist at any meeting of the board where a case was being assessed. The Bill should also state what a quorum of the board is to be. I could not find this in the Bill.

Could some part of the implementation of the Bill be taken over by the Mental Health Commission and could we have tribunals for the people concerned? Could we marry the Mental Health Act more closely with this legislation? The Minister may have extremely good reasons for not doing this but I wonder if it could be considered.

Could the Bill not be used to do something about the mechanism for the transfer of patients from prisons, particularly to the Central Mental Hospital? I am delighted the Minister has said he wants to see people out of padded cells in prisons and into the Central Mental Hospital or other suitable psychiatric hospitals. We must do something to get psychiatric hospitals to take back non-violent individuals who come from their areas and are in the Central Mental Hospital. Many of them suffer from conditions such as burnt out schizophrenia and are not a danger to the population. Psychiatric hospitals will have to take responsibility for them.

I totally support the hopes of the Central Mental Hospital to have the place completely refurbished. I am delighted that the Minister for Health and Children and his Minister of State, Deputy Tim O'Malley, are in the hospital this very day. When the Minister of State was in this House, he promised me that he would visit the Central Mental Hospital because the hospital had told me I was the only politician who had been there in decades. I had asked the Minister of State to go and look at the hospital because it was truly appalling. He was as good as his word and brought the Minister for Health and Children with him. I hope the Minister for Justice, Equality and Law Reform will also go and see it. Seriously ill persons are sleeping on concrete plinths and slopping out in a part of the prison built in 1852. There is a preservation order on the building but not because of its great beauty.

Ms White: Information on Mary M. White  Zoom on Mary M. White  Senator Henry should say that again, loud and clear.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  Could a provision also be included in the Bill for a change to the relevant ministerial order? The most commonly used legislation under which prisoners are transferred is the Central Lunatic Asylum (Ireland) Act 1845. Four other pieces of legislation are used, the most recent of which dates from 1912. Perhaps we could add this matter to the Bill. Some of those affected by this procedure are on remand and have not even been convicted. It is very unfair that the psychiatric services are having to deal with such antiquated legislation when we could [782]do something about it. Matters may improve because the psychiatic training programme now involves registrars going to the Central Mental Hospital. Therefore, they will, at least, get a better idea of forensic psychiatry and may take more people back under their care, realising that not everyone in the Central Mental Hospital is dangerous.

I am delighted with the Bill and I am really looking forward to Committee Stage.

Mr. Minihan: Information on John Minihan  Zoom on John Minihan  I join previous speakers in welcoming the Minister and congratulating him, yet again, on bringing forward legislation. The amount of legislation the Minister has before both Houses is a reflection of his commitment to his new position. When one hears we are amending and repealing laws going back some time, and this legislation has been around since 1978, it is of some concern that we have waited so long to modernise an area that clearly is in need of modernisation. When one considers the whole area of mental health and the improvements that have been made in diagnosis and in treatment, it is right and fitting that such treatments, such diagnosis and such new expertise be brought into line with the judicial and legal process.

If the Bill is ever tested I hope the Minister will not suffer the same fate as Sir Robert Peel and that we will be able to test it in the Houses rather than in that manner. The Bill takes into account the overlap between the criminal justice elements and the need to have regard to the treatment aspects of mental health legislation, particularly concerning the matters which the court must take into account when considering the options available to it in determining fitness or unfitness to be tried. The Minister has outlined to the House the new process.

Without going into the legal definitions, I wish to refer to the whole area of assessment. To make this a success we have to ensure that whatever legal process is in place will be workable with the medical profession and, in particular, psychiatrists who will have to formulate assessments. That is one area where there may be conflicting views by some of the medical people. It would be a shame if this Bill failed to work in certain areas because of professional differences between lawyers and medical experts.

Senator Henry referred to the person treating the patient. One has to consider the interests of the person treating a mentally ill patient from a medical perspective as opposed to a person assessing a patient from a legal perspective and the scope for a conflict of interest. It is important to maintain independence in that area.

In an effort to educate myself in this area when I am neither a medical nor a legal expert, I came across a ruling in the third district court of appeal in Sacramento, which upheld a judge's right to order mental health experts to videotape their face-to-face evaluations of criminal defendants. The judge went on to say that psychiatrists are not oracles to whom courts submit questions and [783]then retire to await their divine pronouncements. It was an interesting ruling and, apparently, it is still ongoing in the US. The judge is now insisting that the interviews between the patient and the assessor be videotaped and presented to court. It is being appealed to the various courts. It is of interest to us, as we are bringing forward this new Bill, regarding the access the courts or a judge may have in making a decision on the assessment that took place and how that assessment was reached.

I compliment the Minister. I look forward to the teasing out of the Bill on Committee Stage. I hope it can be brought to a workable conclusion by ensuring the medical and legal professions will not come into conflict on the merits of the Bill. There is no doubt there was a great need to modernise and bring forward legislation in line with new medical and legal thinking. There are many other legislative areas where we should do this also.

I avail of the opportunity to highlight the need to modernise the whole area of mental health, not only in the legal area but in the treatment and provision of the necessary facilities and services. I join Senator Henry in congratulating the Minister of State at the Department of Health and Children, Deputy O'Malley, who made a commitment here recently to visit the Central Mental Hospital, and who has approached his ministry in a serious and committed manner. I hope the Government can give him the resources he needs to bring about the changes required in that area.

I congratulate the Minister on bringing forward the Bill and commend it to the House.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I thank the Minister for his Second Stage contribution. I agree with him that the Bill which is long-awaited is badly needed. Much of relates to a 1978 report. I welcome broadly the provisions to address the limits in the present law. It is important to modernise the legislation. I welcome the fitness to be tried provision and, in particular, the “not guilty, by reason of insanity” verdict to replace “guilty but insane”, and also the new provision for diminished responsibility. It is important that judges are not left in a position where they have to send a defendant to an inappropriate place because of limitations in the law. There are examples of where the judges' options are limited as regards defendants and they are actually sending them to inappropriate centres of detention.

I welcome sections 6 and 7. The appeal provisions are welcome. That the new mental health review board will be independent is also welcome. The whole area of criminal insanity law needs to be addressed more comprehensively than in this Bill. The Bill still leaves on the Statute Bill legislation from the 19th century, including the Lunacy (Ireland) Act 1821, the provisions of which are merely repealed. There is a need to update insanity law, both criminal and civil, in a [784]comprehensive way. Nonetheless, the Bill is welcome in that it modernises the legislation.

When in Government, the Labour Party introduced legislation on the civil side dealing with the power of attorney, which was also important in this area. We need to look at our civil legislation as many of the procedures are unsatisfactory and the gap needs to be addressed speedily.

As mentioned by other Senators, the Minister for Health and Children has failed to implement the Mental Health Act 2001. That we are still operating under the 1945 Act is contrary to the European Convention on Human Rights.

I welcome the Bill. We will seek to assist the Minister with amendments on Committee Stage.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I too welcome the Minister to the House. As I have said on many occasions, he is willing to come to the House. We look forward to the question and answer session on the general issue of crime and its proliferation. Like a previous speaker, I do not have any expertise in medicine or legal affairs but I am interested in the Bill, because I am always interested in legislation which updates, albeit after a lengthy period, and brings together legislation of an earlier period.

The Minister said the main purpose of the legislation is to clarify, modernise and reform the law on criminal insanity and fitness to be tried and to bring it into line with the jurisprudence of the European Convention on Human Rights. On this morning's Order of Business, I was asked about the Human Rights Bill. I will be well versed tomorrow and I will be able to say it is at Committee Stage in the other House. I hope the Bill will pass speedily through the Dáil to enable it to be brought before this House. We are behind in terms of its introduction, particularly in light of our commitments under the Good Friday Agreement. Its delay should not be seen as being due to a lack of enthusiasm for the bringing forward of the Bill; it is a complex area which requires much debate.

While I do not have medical or legal expertise, I have reasonable expertise in history although, of course, everybody is an historian in their own right. I was interested to see for how long we have governed these activities in criminal law. It is amazing to think that many of the judgments and provisions date back to the 1800s and even to the 13th century. Clearly, there has always been a need in society for justice to be administered according to the norms and tenets of the time. Working a modern system against the background of the 13th and 18th centuries shows the gradual approach to criminal activity. No matter how advanced a country is in terms of infrastructure, commercial and social activity or financial obligations, the wheels, as the Minister said, grind slowly.

In the case of justice, it may well be correct that the mills grind slowly. Who wants to rush to judgment in making fundamental changes? I do not know whether the esteemed Justice Henchy, when he produced his report in 1978, envisaged [785]that it would take 25 years to bring this matter before the Houses of the Oireachtas. That is not to say there have not been changes in other areas of the legal system. These changes, however, are fundamental and, as such, deserve considerable scrutiny.

I am pleased that our spokesman, Senator Kett, has devoted much attention to this Bill, as have other speakers. We are all appreciative of Senator Henry in matters such as this because she brings a common sense approach to the issue, combined with her medical knowledge.

I wish to focus on two new concepts – first, diminished responsibility and, second, fitness to be tried as distinct from fitness to plead. The concept of diminished responsibility has enormous potential in the administration of justice in a court. The jury system will apply in such cases. The good men and true and the good women and true who will make a judgment on a case put forward by the experts in the court and on the plea of diminished responsibility face a huge responsibility. A plea of diminished responsibility is a call for careful consideration of the penalty imposed, which may be up to life if the case involves manslaughter. The jury's consideration will be based on professional reports brought before the court, the legal expertise of those making the case and those who are defending it.

I have often wondered about the jury system. I was never called to do jury service because I was in public life and could not be called. It is based on the practical application of common sense whereby one is tried by one's fellow citizens who will make a decision. I have also often wondered about the training of jurors and whether they should have knowledge of a subject. That takes away the spontaneity of the act of citizenship on being called to administer justice for one's country and the other citizens of the land. It is a huge responsibility to do jury service and to administer justice to a fellow citizen. Perhaps we do not think about that often enough.

The plea of diminished responsibility will bring a sort of graduated approach to the passing of a sentence. I am sure that will bring with it the need for precision in a judgment which can sometimes be difficult to ascertain and to articulate. Precision is not often a feature of judgments, although one can apply the norm, the precedent or otherwise in such cases. We have had much debate on that recently in that people want norms to be imposed. That is quite ridiculous because one submits oneself to a judge who is unique. The judge makes a decision based on his or her knowledge and on the evidence before them. One cannot have judges all over the land giving judgment by bobbing their heads like black babies on a box who bob when offerings are put into it. That defeats the whole purpose. One is not allowed to refer to black babies nowadays. We cannot have regularity of judgments, although people often look for that. The plea of diminished responsibility will require considerable intellectual ability on the part of all concerned in terms of a decision.

[786]I agree with the closing remarks of the Minister in that in all things legal and judicial, it is a matter of balance. This Bill is an important step in the development of statutory rules and guidelines in a difficult and complex area. As does most criminal legislation, it strives to achieve a balance between two opposing objectives. On the one hand, in common with all criminal law, it seeks to protect society at large. We are all prey to whatever criminal activity is taking place around us. There is much worry and concern about the random nature of criminal activity in terms of where it can strike, what it can do, the fear it can induce and the acts which can follow from it. On the other hand, the Bill seeks to protect members of our society who suffer from mental disorder so that they will not be answerable for crimes where they have not got the mental capacity to commit those crimes.

There will be periodic review of the cases of those detained. I strongly approve of that because an independent review body, which can return at periodic intervals to review a case, is hugely important in cases such as this. I am sure the teasing out of the Bill on Committee Stage will be enormously productive. This has been an interesting debate and I congratulate the Minister on bringing forward the legislation, even if it has taken so long to do so.

An Leas-Chathaoirleach:  I am sorry I cannot allow the Senator more time, but it was she who proposed the time limit.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  The Leader's enforced brevity causes me a somewhat of a problem because I did not realise the debate was so well advanced.

Great credit is due for even attempting to deal with this issue because I believe a satisfactory resolution is not possible, it is a case of just making one's best guess. I must declare that I am married to a psychiatrist, therefore, my judgment on many issues relating to psychiatry and incarceration, whether in a psychiatric hospital or prison, is influenced by someone else's considerable experience.

We must avoid transferring social problems to the medical profession because this is not a solution. I suspect the law has elaborated well on the Roman Catholic moral distinction between an evil act and guilt. Whatever one thinks about the church as an institution, the thought processes by which it worked out positions is often awesomely impressive. The distinction between guilt of the individual and the wrongness of the act is well worth considering. It is easier for a moral theologian, however, to make that distinction in terms of theology than it is for the law to put it into practice.

Given the time I spent with the Simon Community, I would have serious reservations about the culpability of 90% of the people I knew there. Issues of culpability arise also in the case of someone who is suffering from multiple deprivations, was brought up in institutions and who, almost [787]with shocking inevitably, ends up with a dependence on alcohol. That was mostly the substance involved in my time with the Simon Community, but it has probably moved on to more exotic mind-altering substances. These issues go well beyond the scope of the Bill.

In terms of the way the law deals with crime, there are people who appear in droves before the courts who never had a chance. I refer here to people who come from a particular type of background which involved multiple forms of deprivation. These individuals never had any stability in their lives. Psychiatrists take great exception when society decides the psychiatric service should look after these people and others take great exception if they end up in prison. I say this by way of being in a dilemma, because I do not believe anyone has a unique magic wand.

In terms of the rhetoric we sometimes use about crime, we should reflect on the fact that some of the people about whom we use the rhetoric are, in many ways, as much victims as are the victims of their crimes. That is not to justify or attempt to minimise anything they might do. Most of the people I knew in the Simon Community were a nuisance to society, but they were the least troublesome. The people I knew only ever murdered others in Simon as a result of rows that erupted among themselves. By the time I met these people, they were incapable of hurting anyone else because most of them were damaged physically. However, they were capable of hurting each other because they were all quite vulnerable. Some people were killed, others were charged with murder and, almost inevitably, found not guilty and, at worst, they were convicted of manslaughter.

We must be extremely careful because, in cases of murder, in particular, there are victims. I do not want to go into individual cases, but there was a spectacular case recently in which two people were murdered. The family of the victims felt extremely let down when someone who was pronounced insane made what seemed to people outside the system a miraculous recovery. It was almost as wonderful as the recovery from Alzheimer's disease of the one-time chief executive of Guinness in the United Kingdom. As far as I am aware, this is the only known case of someone being cured of Alzheimer's disease. I say this in defence of the medical profession, in spite of what I have just said. What else can I do but defend the medical profession? I am not in a position to do anything else.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The Senator will not be able to go home if he does not do so.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  That is precisely what I am saying.

As the Minister will be aware, I would be more than capable of blaming him if I thought he was responsible. However, the Central Mental Hospital, Dundrum, is not an institution of which we can be proud. The people who work there are [788]exceptional professionals. I know some of the psychiatrists who work there and they are extraordinarily good professionals. However, as many of those who work there – including many of the inspectors of mental hospitals – have stated it is an old building. We should consider replacing or completely renovating the hospital. Members will agree that anyone who ends up in Dundrum by reason of being found unfit to plead, of being insane or of having diminished responsibility, is not a guilty person. The degree of their guilt should not be reflected in the primitive conditions under which people must operate in Dundrum. The corollary of the legislation is the onus on society. By society I mean a succession of Governments that have left Dundrum in place, because, to a large extent, it is invisible to society.

The second issue I would like the Minister to address is whether we are liable to end up with people who can manage to get a different verdict because they can afford to pay for the very best psychiatric opinions, including employing international experts. I would be concerned about this aspect, given that psychiatry, by its nature, is not a precise science. I presume this happens in many other areas. The Supreme Court decision today which overturns the procedures on drink driving had much to do with people's ability to employ clever lawyers. Without a doubt, people were able to employ good lawyers and it is the job of such lawyers to win cases. I am sure the Minister knows something about this.

I welcome the Bill. Given that the Minister is responsible for dealing with crime and its many manifestations in society and in light of the fact that political pressure from all sides, including that exerted by me, will become greater, I believe various aspects of crime and the criminal law need to be considered.

I am always astonished, when a person is convicted of an awful offence, to see a succession of people appear before the court to say he or she comes from a good family. Somebody who comes from a good family is more deserving of punishment than somebody from a bad family. The idea that people will advise the judge not to send a person to jail because he or she comes from a good family is a contradictory one. People from such families have less reason to expect sympathy. Those who come from backgrounds that gave them no hope and no chance deserve to be given positive references. Society will have to examine the idea of diminished responsibility in cases where people, quite visibly, never had a chance and in cases where there is a medical consensus that the person involved suffers from insanity.

Dr. M. Hayes: Information on Dr Maurice Hayes  Zoom on Dr Maurice Hayes  I welcome the Minister and congratulate him on bringing forward the Criminal Law (Insanity) Bill 2002. I agree with many of the comments of Senator Ryan and others. I am glad that he mentioned the victims of crime near the end of his contribution as his comments when in full flight reminded me of the modern version of [789]the parable of the good Samaritan. In the modern version two social workers on the road from Jerusalem to Jericho got off their horses because they saw a man in the ditch. When they established that he was dying, one said to the other, “We must find the people who did this, they need our help.”

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Senator Ryan was not that bad.

Dr. M. Hayes: Information on Dr Maurice Hayes  Zoom on Dr Maurice Hayes  I will be thrown out of the social workers association for saying that. When Senator Minihan used the appalling example of Sir Robert Peel, the former civil servant in me paused to reflect that while Sir Robert Peel was shot at, an unfortunate civil servant took the bullet.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  There is some justice.

Dr. M. Hayes: Information on Dr Maurice Hayes  Zoom on Dr Maurice Hayes  I do not want to bleed too obviously in public. The fact that the Minister is reviewing Victorian legislation and subsequent case law causes me to think about how advanced the Victorians were.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Yes, I thought of that, too.

Dr. M. Hayes: Information on Dr Maurice Hayes  Zoom on Dr Maurice Hayes  Their ideas were almost right and lasted for a long time. Like Senator Ryan, I think it is a shame that we are updating Victorian law but not the Victorian edifices in which people are required to carry out treatment.

Senators Ryan and Kett touched on an important point. I would be happier if the Mental Health Act 2001 had been fully implemented after we dealt with it, although I appreciate that it is not fully the responsibility of the Minister's Department. The treatment received by people after they have been assessed is hugely important, as is the work of the Mental Health Commission. There is a real danger that certain people could as easily end up in either a mental hospital, a prison or the gutter. It is almost a lottery. Different professional groups and agencies solve their problems by defining people in different ways. An effort should be made to remove limbo in the system where people can be placed because they are deemed untreatable. As Senator Ryan said, this is a grey area and there is no perfect solution.

The categories suggested in the Bill are very sensible and many Senators will want to discuss them on Committee Stage. The Bill is highly commendable as it represents a large advance in the certainty of the law. It is important that provision is made for diminished responsibility. I agree with Senator Henry's suggestion that we consider providing for incapacity or diminished responsibility through brain damage or neurological problems. I am glad to see that the Minister has excluded alcohol as a factor in determining diminished responsibility and, like other Senators, would include drugs also. Perhaps a distinction can be made for drugs which are self-administered. We are all concerned about those who choose to get [790]high and use this as an excuse for their misbehaviour.

Senator Henry mentioned that the Bill concentrated on in-patient treatment, about which she expressed her concerns. It might be sensible to think in terms of day treatment, given the state of modern psychiatric medicine. In the case of a person released conditionally, the relevant conditions should include the acceptance of a treatment regime.

I agree with Senator Henry that there should be two psychiatrists on the review board in order that a decision on the state of a patient cannot be made during a meeting in which a consultant psychiatrist is not a participant. It is important to stress the independence of the tribunal established by the Minister, although he was required to do so and make it manifest by the European convention. There are always difficulties when other groups control expenditure and funding. Patrick Kavanagh wrote of “a lonely lecher whom the fates by a financial trick castrate”. Departments and treasuries have a great capacity for frustrating the activities of watchdog bodies.

I do not agree with Senator Henry in so far as I do not think it is a good idea to combine the Mental Health Commission and the tribunal as they have two quite distinct functions. One makes specific decisions and the other ensures there is quality control. We should be reluctant, except in an emergency and as a temporary expedient, to designate part of a prison as a treatment centre. Our objective should be to remove these matters from the prison environment. I notice that the Bill allows temporary movements to be made without having to return to the tribunal. That is sensible. The tribunal will be reviewing cases on a rolling basis. I presume that it will pick up on all cases. We should avoid the possibility that somebody could move around the system ahead of the posse.

The Bill represents a great advance on existing legislation and I thank the Minister for bringing it forward. I am sure it will have the full support of the Seanad. I look forward to further discussion of it on Committee Stage.

Mr. Glynn: Information on Camillus Glynn  Zoom on Camillus Glynn  Cuirim fáilte roimh an Aire. I am pleased to speak on Second Stage of the Criminal Law (Insanity) Bill 2002. It would be an understatement to say it represents a step forward as it is comparable to jumping the Grand Canyon. While I acknowledge the great impact of the Mental Treatment Act 1945 in the delivery of psychiatric services, it had shortcomings in many respects. Given the circumstances that this Bill attempts to address, it is difficult to give a textbook example of what we are talking about. A number of things will naturally come to the fore such as the rights of the individual, the rights of this Legislature and its obligations to society, and the rights of individuals who may have committed the most heinous crimes, albeit that they may be deemed insane or not responsible for their [791]actions. Nevertheless, we must recognise the position of the victim.

The purpose of the Bill is to clarify, modernise and reform the law on criminal insanity and fitness to be tried, and on related issues. I regret that it has been said that the psychiatric services are the Cinderella services – that is partly true but not totally so. The Bill will also bring into line the jurisprudence of the European Convention on Human Rights which will soon be given further effect in domestic law in accordance with the provisions of the European Convention on the Human Rights Bill 2001. At present, the convention is law for Ireland on the international plane but it is not part of domestic law in Ireland, which is a nonsense.

The Bill provides for extensive new provisions dealing with fitness to be tried, which term will now apply rather than fitness to plead. The Bill also provides for new rules regarding appeals against such findings, a statutory definition and restatement of the text for criminal insanity based on the existing rules at common law as developed in Ireland. A new verdict of not guilty by reason of insanity will replace the existing guilty but insane, and there is a new plea of guilty but with diminished responsibility in the case of murder.

The Bill implements certain recommendations made in the third interim report of the inter-departmental committee on mentally ill and maladjusted persons, the Henchy committee – referred to by Senator Henry and others – which was published in 1978. The Bill accommodates criminal justice elements and the need to have regard to the treatment aspect of mental health legislation. At present, if there is any question arising as to the competence or fitness of an accused person to be tried – this is the core of the Bill and makes a nonsense of what existed heretofore – the Lunacy (Ireland) Act 1821 applies, despite there being no definition of fitness. This addresses that anomaly. As Senator Kett said, applying a Bill from the Dark Ages in 2003 is not to be countenanced.

Planning for the Future of the Psychiatric Service, A Policy Document, brought forward the concept of psychiatric patients or people suffering from psychiatric illnesses and the concept of devolving the service into the community. It must be acknowledged that major resources have been moved into that area and, though much remains to be done, a lot has been done to date. I compliment Senator Henry who made a very practical reference to people who find themselves in various situations.

While devolving services from institutions or hospitals to the community, it must be recognised that greater resources are needed. While it would not be fair to refer to the Minister for Health in the mid-1980s as he is no longer in public life, it was said then that community service was a better and cheaper option. An eminent health economist from the University of York, Professor Alan Maynard, in giving a lecture at a conference I [792]attended, said that hospital services were cheaper, contrary to the views of the then Minister and his advisers. Hospital services are cheaper but they do not provide the best service. If optimum service is wanted, it must be paid for.

With regard to what has been said about those who find themselves in different conditions and predicaments in the community, those people have not been given the benefit of appropriate resources devolved to community level. I am talking of community psychiatric nurses who visit patients in community residences and those who have gone a step beyond that and have been discharged into the home. It is well known that psychiatric patients often believe that medication will make them worse. Because they are feeling well, they do not feel they should take their medication. They do not appreciate that they are feeling well because they are taking the medication. They have all sorts of problems and find themselves on the wrong side of the law and availing of the services that Senator Ryan would have been associated with over the years. Many situations must be taken into consideration.

A ridiculous situation evolved in the mid-1980s when a number of centres were discontinued and a number of psychiatric nursing schools closed. I have to compliment my area health board and if I am being political, I am only doing so because it is fair. Deputy Cowen, when Minister for Health and Children some years ago, gave the Midlands Health Board the funding to set up a college of nursing. I am thankful that there is a third level institution in the Leader's town, Athlone, which is linked to that. I am pleased that psychiatric nurse training has recommenced in the Midlands Health Board area and, as chairman of the board, I was pleased to welcome 30 new students to St. Fintan's Hospital and St. Loman's Hospital where they will receive their practical training. Their academic training will be provided in the Athlone Institute of Technology and at the College of Nursing, Tullamore. A range of factors have contributed to this development and the Minister is to be congratulated.

To pick up on a point made by Senator Maurice Hayes, the victim is a central figure in this legislation as well as the perpetrator of the act. Victims will benefit from the legislation because they will get a fair crack of the whip. I worked in the area of psychiatry for many years and know that even long stay patients are reviewed on a regular basis. There is a six month review but I assure the House that patients are reviewed more regularly and that was the case in the hospital in which I worked.

I will conclude by referring to what has been said about the Central Mental Hospital and other hospitals. Many, if not all, are listed buildings and beautiful in an architectural context, but it stops there. They have no relevance to modern psychiatry, were not built for the treatment of patients and do not have the facilities or requisite physical features. They should be closed down.

[793]I am pleased that the Midlands Health Board has completed a new acute psychiatric unit at St. Fintan's Hospital, Portlaoise, and I thank the Government for providing the funding. In addition, a new 36 bed unit will be provided at the regional hospital in Mullingar. I am also pleased that there is a department of later life psychiatry and that the new phase 2B will contain a department of adolescent psychiatry.

I may propose amendments on Committee Stage and also communicate recommendations to the Minister who is to be commended for this legislation. Where clinical directors or consultants responsible for the mental welfare of those who commit serious crime deem, after observation, that they are fit to plead relevant to the crime they have committed, they may do so. I have dealt with many such people and, regrettably, many did not receive justice. The relatives of their victims were of the same view. The Minister is to be commended for addressing this aspect and I commend the Bill to the House.

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  I thank Senators for what has been a thoughtful debate. Every contribution was well thought through and has given me pause to reflect on what is contained in the Bill. The fact that it has been a long time in gestation should not be a reason for not getting it right and making improvements if needed at this late stage.

Senator Maurice Hayes referred to the delays in implementing the Mental Health Act. While that is a matter for the Minister for Health and Children, I was anxious that this Bill should not become entangled in that process. It is 25 years since Mr. Justice Henchy wrote his first report on the subject and although they have much in common, the Bill is not identical to what he then proposed. Nevertheless, it would be unforgivable to allow another ministerial term of office to elapse without addressing the issues raised in the Bill. If difficulties arise with the implementation of the Mental Health Act, they should not be used as an excuse for not proceeding with this legislation.

This must be common sense legislation that can be understood by all. It may not approximate to how psychiatrists would write their ideal law. That is not the issue because, for better or worse, we do not give them the function of writing our laws. Psychiatry is an evolving science and the professionals involved in it hold different views of the human beings with whom they deal. They also hold different theories and views on the material at their disposal.

Criminal law of the kind contained in the Bill must be robust enough to be used in the courts on a daily basis, from the District Court to the Supreme Court. It must be something that jurors understand and categorise matters in ways that will be understood by those who administer justice. Perhaps even more importantly, it must be understood by the public. It must be clear enough to enable members of the public have faith in it. If it was to be rendered an incomprehensible [794]muddle by the use of qualifications and evasions to accommodate all possible psychiatric or psychological theories, it would amount to unworkable law. In view of this I compliment the Parliamentary Counsel because, subject to later amendments by the Oireachtas, this is rigorous and clear legislation. While that does not mean it cannot be improved, it is admirably drafted because it is easy to understand and follow.

Mr. Justice Henchy was a fine jurist. He was probably one of the best, if not the best mind to sit on the Supreme Court. I apologise to him that 25 years after he commenced work in this area, the relevant legislation is only beginning its passage through the Oireachtas. I will reflect on many of the points made, especially those by Senator Henry, on how the Bill might be improved.

Senator Terry expressed concern that the use of the term intoxication might imply intoxication by alcohol only. That would be unfortunate because the Parliamentary Counsel was concerned to also provide for intoxication by other drugs. That can be made clear. On a related aspect, Senator Maurice Hayes wondered if it would be legitimate for the legislation to take account of cases where a victim was given a date rape drug or similar concoction. We will have to give this serious consideration before Committee Stage.

The Bill does not encompass the issue of diminished responsibility for homicide dealt with in the legislation on infanticide. If they consult that legislation, the women Members of the House will be surprised to find that it effectively provides for a manslaughter rather than a murder conviction for a mother who kills her child. The excusing circumstance provided for is that the balance of the woman's mind was affected by the process of lactation. I understand the legislation was enacted in 1949. Even so, it is surprising that this was accepted as the psychiatric orthodoxy of the time. It may need to be looked at because there could be situations involving older children who would not come within the remit of the legislation. In such circumstances mothers suffering from aggravated depression might seek to avail of the relevant provisions of this Bill.

I take Senator Ryan's point regarding those at the bottom of the ladder such as those cared for by the Simon Community and others. Since nobody is above the law, nobody is beneath it. The law must be fair and humane to people in such circumstances and should not simply regard them as problems. However, at the same time the scales of justice must be held evenly because families of victims suddenly deprived of their loved ones cannot be told it was due to a medical mishap. They need justice to be administered from their perspective in a full and comprehensive manner. We should not forget this.

Senator O'Rourke referred to the jury system, of which I am passionately in favour. The Senator wondered about the kind of training available to members of juries who bring to their task a common sense approach derived from their life experi[795]ences. The jury system is not a hangover of medieval English law. The great strength of the common law system, on which our system is founded, is that it is based on arbitration between the individual and the State in which both are equal.

The civil law system is deficient in that the State apparatus acts as an investigator and the scales are not held evenly. The strength of the common law system, of which the jury represents the high point, is that the State brings its case against an accused person and puts it to 12 people who have no vested interest at all, save for the vested interest of a citizen in upholding the law. Both State and the accused are regarded as equals before the court. We must do everything not only to preserve this system but to strengthen it.

There are many threats to trial by jury, not least from the European direction in the case of the corpus juris project. We have to be very careful to protect our system. We share in the common law heritage whether we like it or not. Our system has been more robust and strong in combating tyranny than any civil law system ever, and 200 years of common law have shown that it is inherently more fair and durable than its counterpart. All the great tyrannies of the world have popped up in the civil law system. I often point that out to people who get impatient with our system, which is not all that bad.

Senator Ryan raised the question of the Catholic distinction between the guilty act and the guilty mind. We were taught the Latin phrase “Actus non reum facit, nisi mens sit rea” in law school, which means that the act does not make one guilty unless one's mind is guilty. This is an important distinction. Many people are now pressing for things to be done in respect of corporate manslaughter, for example, and pressing for our courts to be made into areas of social theatre where the guilty mind is not relevant. The principle that the existence of a victim requires the prosecution of a perpetrator is not at the heart of our system, and I sometimes think we ignore that at our peril.

Senator Henry raised the issue of the District Court, where many of the relevant issues arise. As she spoke, I was reminded of a particular case presided over by a female district judge. I was engaged in another case, but was watching what happened in hers one lazy afternoon in the Bridewell in Dublin. A woman was being prosecuted for shoplifting who was clearly suffering from depression. There were tears coming from her eyes and she looked catatonic. I was wondering what would happen and I was very impressed when the judge said she was stopping the case immediately. The garda involved said he had found tablets in the woman's possession and the judge said, “I am taking money from the poor box and directing that the woman be given a taxi home. As to things in her shopping bag, I think she needs them more than the store.”

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Dunnes Stores.

[796]Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  There is humanity in our legal system which is sometimes forgotten completely in the social rhetoric.

The case of Ernest Saunders and his remarkable recovery always reminds me of the occasion when a private detective was very convinced that a certain plaintiff in the Four Courts was a complete fraud. The plaintiff had appeared at an earlier stage on a crutch, but had now descended into a wheelchair. When the jury handed down the verdict the private detective went over to the victorious plaintiff and said, “I will watch you for the rest of your days.”

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  He is ruling out miracles.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Precisely. The gentleman in the wheelchair replied, “You may but I am off to Lourdes.” Miracles have often figured in the courts and Mr. Saunders was not the first to benefit from them.

This Bill is overdue and every aspect of it requires careful thought. I am encouraged by the tone and content of the contributions today to feel that Committee Stage will be very useful, and that if we do not wreck the Bill by making it too fussy – remember that it has to be durable – we will improve it substantially. The Bill is overdue but will bring about worthwhile change. I appreciate the comments that were made and look forward to Committee Stage.

Question put and agreed to.

Committee Stage ordered for Wednesday, 26 February 2003.

Sitting suspended at 4.35 p.m. and resumed at 6p.m.


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