Joe Costello (Dublin Central, Labour)

I welcome the Minister. As he said, the purpose of the Bill is to modernise the law and to bring it into line with the new jurisprudence in the form of the European Convention on Human Rights which Ireland incorporated into domestic law in 2003. The main provisions of the Bill are to replace the concept of fitness to plead with the concept of fitness to be tried, to provide for a statutory definition of criminal insanity, a new verdict of not guilty by reason of insanity, which replaces guilty but insane, and a new plea of guilty with diminished responsibility, which would reduce a murder charge to one of manslaughter.

The European Convention on Human Rights prevails by requiring that a provision be made for the establishment of a review mechanism. This will take the form of a new body known as the mental health review board which will formally review and investigate cases where people have been detained under the provisions of the new legislation and will replace the present ad hoc review mechanism.

The Bill provides for designated places of detention for persons with a mental illness or disorder who have come before the courts. It is difficult enough to define mental illness, either medically or legally, but mental disorder, the term used for determining criminal liability, is even more complex. We may need the professional knowledge of Senator Henry, who made an interesting analytical contribution to this legislation in the Seanad, to take us through all the terminology in the Bill. We will have the benefit of Committee Stage to tease out the nuances in the medical and legal terminology.

The Minister quoted with approval the work of Professor Finbar McAuley and Professor Paul McCutcheon. I have great admiration for their document on criminal responsibility. In particular, the Minister approved of their final lines stating that "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". As professional practitioners in the legal arena, one would expect them to so conclude but it is important to realise that medicine and law are overlapping areas and it would be wrong to make either paramount since that has caused the problems of the past. Criminal law had overriding strength and often those sentenced to designated centres of detention were neglected, so I am concerned we might take that approach too far. We need, however, a definition of mental disorder that will assist criminal law in dealing with the accused following a court verdict. The key to a successful approach is to marry the subsequent medical treatment to the criminal process.

As Deputy O'Keeffe said, this legislation has been some time in gestation. It first appeared in the distant past of 2002, shortly after the Minister became Minister for Justice, Equality and Law Reform and was a swashbuckling liberal full of intentions to introduce reforming legislation. If I remember rightly, the legislation was introduced on International Human Rights Day, 10 December 2002. That was shortly before we incorporated the European Convention on Human Rights into our legislation. I regret that the Minister's blast of reforming zeal was short-lived and that he was diverted to bogus asylum seekers where he has spent his energy for the past two and a half years. The Criminal Law (Insanity) Bill 2002 has limped through the Oireachtas since then, finally seeing the light of day on 19 April 2005 in the Seanad. Now as we approach International Human Rights Day again, three years after the publication of the Bill, it is about to begin its passage through the Dáil. At least the Minister has acted where previous Ministers have done nothing, although professionals in the legal and medical field have long agreed that existing law on insanity is outdated. Mr. Justice Henchy, a former Supreme Court judge, provided the Government of the day and successive Governments with a comprehensive report and a draft Bill, however inadequate, 27 years ago. The wheels of justice move slowly, especially for those with a mental illness or disorder.

Schedule 2 to the Bill deals with the repeal of enactments that will become redundant when the legislation is enacted. The Acts to be replaced cover a period of 200 years, including the entire Criminal Lunatics Act 1800, aptly described, to the repeal of section 4A(1)(c) of the Criminal Justice Act 1999. In essence, there are repeals of modern and older legislation.

I received yesterday documents from Mr. Mannix Flynn, a well-known actor and writer under the alias of James X. I do not know if the Minister has had the opportunity to peruse those rather appalling records of his life and times. The material documented the sad life of a young boy growing up in the Dublin slums in the 1950s, 1960s and 1970s. He spent years in industrial schools as a young boy. By the age of 16 he had graduated to St. Patrick's Institution for juvenile offenders. On 19 May 1973, two medical doctors certified him as insane under section 2 of the Criminal Lunatic (Ireland) Act 1838. This section is happily one of those being repealed by this legislation.

In 1971, as a boy of 14 years of age, he had already run the gamut of industrial schools under the aegis of the Department of Education. In a private and confidential letter to the Secretary of the Department of Education, stamped "not to be read in open court", the psychiatric consultant gave his view of the young man from the Dublin slums. It states:

James X, aged 14, 2 Connolly House, Dublin, care of Marlborough House, Department of Education. I examined the above boy as requested. The reason for the request was that he had attempted to escape from Marlborough House, been obstructed and had put his hand through a glass window since admission yesterday. He is on remand for a week because of being charged with loitering with intent. This boy has been a problem since at least the age of three, when he commenced school. I first saw him in 1965 for the court. He spent a period both in Daingean and Letterfrack. James, who is a tall, fair-haired, blue-eyed boy, has badly bitten nails and cuts on his face and right hand at the moment. He is functioning at the level of dull average intelligence.

Mr. Mannix Flynn would not like that. It continues:

He denies having any problems other than that he might as well continue his life of delinquency as "the guards are down on him anyway". In my opinion this boy is in need of a period in a unit under the jurisdiction of the court, where he could have intensive investigation, treatment and rehabilitation. I think, in the absence of such a facility, and if he cannot be contained in Marlborough House, perhaps a period in Mountjoy might be considered.

It seemed that the power of judge, jury and executioner lay in the hands of the professional psychiatrist from Fitzwilliam Square.

The psychiatrist's wish was soon granted of course. Mr. Mannix Flynn was next reported in Mountjoy Prison at the age of 16 years, where he served three months detention for the "larceny of a purse, valued 50p, and £15 cash". Four days after his arrival into St. Patrick's Institution, two medical doctors examined him and issued their official verdict in what illustrates the mechanism used under the legislation. The verdict stated: "We hereby certify that he has become insane and we are of the opinion that his case may be considered as likely to derive benefit from being placed in the Central Mental Hospital."

In this way, the full force of the State's power was brought to bear on a vulnerable child of Dublin's slums. These include the Garda, the courts, the industrial school system under the Department of Education, St. Patrick's juvenile institution and finally, the Central Mental Hospital in Dundrum. All were employed to control an unruly child.

The industrial and reformatory system did not end until 1979, and only now are we abolishing some of the worst excesses of the Victorian and pre-Victorian panoply of rules, practices and laws governing those who are mentally ill and may have committed a criminal offence. Thankfully, modern psychiatry has moved on and troublesome children are no longer certified by doctors as insane for the purpose of transferring them to the Central Mental Hospital and decertified as sane for the purpose of transferring them back to an institution. Social engineering is no longer such a blatant part of the process and there is greater understanding of the underlying causes of mental illness and its associated conditions. With regard to detention, however, we recently saw how 147 children were detained in prisons since January 2005. Much still has to be done in dealing with the issue of incarcerating young people.

The Central Lunatic Asylum (Ireland) Act 1845 remains intact. It is the commonly used legislation under which adult prisoners are transferred to the Central Mental Hospital. I hope the Act will be included later in the Minister's list of legislation to be abolished. The Minister is admirably abolishing the scandalous padded cells in prisons, but it is necessary to have the appropriate legislative mechanism in place to do so. It is time to address this antiquated procedure and reform antiquated legislation. I will carefully scrutinise amendments taken on board by the Minister in the Seanad to consider if they go far enough in this respect.

Currently, an acquittal based on a guilty but insane verdict results in detention in the Central Mental Hospital in Dundrum. Detention probably also awaits a person with the change of verdict to not guilty by reason of insanity. Regrettably, it remains in the public interest to curtail the freedom of the person until he or she no longer poses a threat to society. Reform of the M'Naghten rules and repeal of the Trial of Lunatics Act 1883, which provide for the guilty but insane verdict, are greatly enhanced by the establishment of the important quasi-judicial independent review board introduced in this legislation. Real protection occurs in that there is now a substantial onus on the State to protect the fundamental rights of the person. This will be carried out whatever detaining mechanisms are put in place through regular revision of the person's detention.

It is surprising that prisons are included in section 8 within the definition of designated centres for the detention of persons committed under the Bill. Mr. Justice Henchy, who chaired the interdepartmental committee on mentally ill and maladjusted persons which produced the main recommendations that are the substance of the Bill, did not recommend that prisons be designated as such. Will the Minister elaborate on his thinking in this matter? It seems that the detention of people in prisons is contradictory if they may or may not have been convicted of a crime but have a primary need of treatment for a mental illness or disorder.

It is difficult to envisage a situation where it is more appropriate, as the Minister commented, to detain a person in a prison rather than a psychiatric institution. It may be more suitable for the Minister, but it is unlikely to be more suitable for the patient. There is a danger, in taking on board what Mr. McAuley and Mr. McCutcheon stated on the primacy of the law, of recognising prisons as designated centres. The revolving door process of transfer and retransfer could thus continue unabated after this legislation is passed. It appears to be in breach of the principles and purpose of the European Convention on Human Rights. If the Minister persists with this type of designation, I imagine it will give rise to some legal challenges in the future.

I will refer briefly to the Minister's purchase of Thornton Hall for €29.9 million. While I will continue to refer to it as a waste of taxpayers' money, it is also questionable, in terms of penal policy, as to whether it is appropriate to construct prisoner accommodation housing more than 1,000 inmates. The construction of a super prison and a new Central Mental Hospital on the same site is a recipe for disaster. It will not matter whether the mental hospital is to be cheek by jowl with the prison or will be separated from it by a hedge, fence or a mile-wide cordon sanitaire. Prisoners will be inappropriately transferred to the mental hospital and patients could be inappropriately transferred to the prison. I imagine the new prison will be designated as a centre for the purposes of this Bill. While I am uncertain about this, given that the two institutions will be in such close proximity, I imagine the temptation to designate the new prison as an appropriate centre for detention of people under this proposed legislation will be too much for any Minister to resist.

It is necessary to make a clear distinction between the purposes of imprisonment and of the detention of a mentally ill person. Imprisonment is to deprive sane people convicted of criminal offences of their liberty and is imposed as a punishment for their offences. The purpose of detention of a mentally ill person in a designated centre is primarily for inpatient treatment. At all times, treatment for mental illness or disorder should be paramount in people's detention, regardless of whether they have been found guilty of any crime. I do not believe the legislation is clear as to how these designated centres will operate vis-À-vis the people who will be committed to them.

As far as expenditure is concerned, reform of the law is of little value if money is not spent on resourcing the associated structures and services. Mental health is the Cinderella of the health service and since the foundation of the State, has always been under funded. People with a mental disorder were locked away out of sight and out of mind in overcrowded Victorian institutions and were stigmatised by their illness and circumstances. The Central Mental Hospital requires a modern, bright and airy campus to enliven and not to depress and we certainly need a new one.

However, as money has poured into the bottomless pit of the health industry with the provision of large annual increases, the percentage expenditure on mental health has decreased, from a paltry 9% to an even smaller 6% in the past five years or so. The provision of community care, community hostels, community services, community psychiatric nurses and community psychiatrists can prevent situations whereby vulnerable people fall foul of the law and end up before the courts and in institutional designated centres of detention. Money spent on preventative measures is money well spent. We already know of those people with mental health problems who are out roaming the streets. Eventually, they may end up committing offences and will be brought before the courts in the context of this legislation. Hence, prevention is the key.

Moreover, legislation like the proposed Bill is worthless unless adequate funding is provided to resource it. Designated centres of detention require modern professional security and care which can no longer be provided cheaply. If it does its work properly, the review board will be extremely active and will have regular review hearings, investigations and sittings. It must be properly funded and resourced to be able to operate in the manner envisaged by the European Convention on Human Rights. The board should be boosted by the appointment of a second psychiatrist, as was recommended by Mr. Justice Henchy 27 years ago. The Mental Health Act 2001 has suffered in its implementation through a lack of proper resourcing.

These proposals have been before the Oireachtas for three years to date and on the shelf for 27 years. It is time for the Minister to do the job properly.

See this speech in context