Dr. Charles O'Mahony:

In the Green and White papers which informed the 2001 Act, there were proposals to provide for the assessment of people in the criminal justice system at the start of the process, before they are convicted, so they could access mental health services. However, there was quite a lot of backlash to that in the 1990s, particularly from psychiatrists who did not want to see the courts having powers relating to diversion and diverting people out of the criminal justice system into mental health services. When the 2001 Act was going through the Houses, those provisions were dropped, surprisingly, and Senator Mary Henry raised that issue in some of the debates on the 2001 legislation. The Government gave a commitment to revisit the issue but it never did and the review of the Mental Health Act, which went on for more than ten years, did not engage with the criminal law aspects at all.

Diversion is a policy that has developed throughout the western world. The aim is to divert people with mental health problems away from the criminal justice system, but we are a real outlier in that we have not developed an overarching policy. We do not have provisions, procedures or legislative provisions to facilitate diversion and have a very piecemeal approach to it. The 2001 Act needs to be amended to maximise the opportunities to divert people out of the criminal justice system and allow them to choose mental health treatment. We need to take a problem-solving approach. A recent report by the Inspector of Mental Health Services, Dr. Susan Finnerty, entitled Access to Mental Health Services for People in the Criminal Justice System, contains some very good proposals, including some law reform proposals that could be implemented through amendments to the 2001 Act.