Gerard Murphy (Cork North West, Fine Gael)

This legislation is long overdue. As the Minister pointed out during the debate in the Seanad, it is 25 years since Mr. Justice Henchy first commenced his work in this area. During Report Stage of the Transfer of Execution of Sentences Bill, Deputy Costello and I proposed amendments which we believed would make that Bill more understandable and clear for the lay person trying to read it. On that occasion, the Minister rejected the amendments as unnecessary. However, in his contribution in the Seanad on the Criminal Law Insanity Bill 2002, he insisted this must be commonsense legislation and understood by all. He stated the Bill should not approximate how psychiatrists would write law. If that were to be the case, God forbid, even the lawyers and the judges might be confused as are many lay people, by the legal terminology used in other Bills.

The Minister explained his position during Report Stage in the Seanad by stating he did not agree that he should adopt the same attitude to every Bill that comes before the House, calling such an approach a tyranny of consistency.

Whatever the Minister says about his differing approaches to legislation, this Bill will still be very difficult to understand in layman's terms. However, in general, it gets the balance right between the duty to protect the citizen and the community and the duty to protect the human rights of those persons who are accused of committing a crime but because of their mental capacity cannot be dealt with within the scope of the normal criminal law.

The central plank of the Bill is the new definition of what constitutes an excusing mental disorder, such as mental illness, mental handicap, dementia or other diseases of the mind. In reality, marginal cases will exist in all these instances. Doctors will disagree and some diagnoses will prove incorrect. These inconsistencies and possible mistakes will from time to time cause anxiety in the public mind but this is not, nor will never be, an exact science. The Bill will provide a clear legal framework for dealing with people with mental disorders who are accused of a serious crime.

The Bill is equally clear that it does not include intoxication as a legitimate reason for a plea of not guilty by reason of insanity or a plea of diminished responsibility.

The debate in the Seanad seems to clarify that the term "intoxication" not only refers to drink but also to so-called social drugs. Some clarification on Committee Stage may be required to explain the difference between so-called social drugs and drugs prescribed by a doctor for medical purposes.

I ask the Minister to clarify whether a plea of diminished responsibility is now unacceptable in the case of intoxication or whether from now on, a judge cannot under any circumstances allow for the state of intoxication when considering a case. On rare occasions there may be circumstances when young people are given drugs or duped into taking drugs that may have a serious impact on their behaviour. Drug pushers are ruthless in pursuing young people in an effort to get them addicted. I suggest that in exceptional cases, a judge should have some discretion for taking this into account.

Section 1 of the Bill deals with designated centres and provides that it is a matter for the Minister for Health and Children, with the consent in certain cases of the Minister for Justice, Equality and Law Reform, depending on which Minister has jurisdiction, to designate a prison or part of a prison or to designate a psychiatric centre for the reception, detention and, where appropriate, care or treatment of persons committed under this Bill. Serious concerns have been expressed about these provisions, for example, as to whether they are compatible with United Nations Resolution 46/119 on the principles for the protection of persons with mental illness. I ask the Minister to address this question in greater detail.

Resources are the central part of the problem. The Minister is constantly reviewing and renewing legislation, much of which is welcome, but legislation is largely ineffective without the allocation of resources. By introducing this legislation, the Government is trying to give the impression that much more is being done in the sphere of mental health. According to Mental Health Nurse Managers Ireland, existing resources for mental health services are overstretched and any additional burden on resources would have significant implications for clinical effectiveness.

The current structures are wholly inappropriate for violent offenders. The Minister should make clear that the use of divisional systems should apply to non-violent offenders only and that provision for violent offenders is dependent on the development of regional secure units. If the Minister is to approve units outside Dublin, it is likely such centres will be located in acute admissions units based in general hospitals, which are not designed to provide a secure environment. The Minister should rule out the use of such centres as any change in their status brought about by increased security would change their entire ethos and would have a significant impact on the rights and civil liberties of other patients residing in the acute facilities in question. A number of regional intensive care units with modern forensic expertise and under the management of multi-disciplinary teams in regional locations are required.

Section 3 deals with the issue of "fitness to be tried", a concept adopted in place of the term "fitness to plead". The section provides that fitness to be tried will be decided by a District Court without a jury. The court will also have the power to acquit a person if it believes there is a reasonable doubt that the defendant committed the alleged act. The effect of this provision is to remove the case from criminal jurisdiction to the jurisdiction of the Mental Health (Amendment) Act 2001. While this change is to be welcomed, it creates a conflict which the Minister must resolve. Does the fact that a person is not acquitted denote a strong suspicion of guilt by the court on the defendant? Could this be viewed as prejudiced to any case which may be taken against the defendant in future in circumstances in which the mentally ill patient is deemed to have recovered from his or her illness?

Section 4 provides for the verdict of "not guilty by reason of insanity" to replace the existing special verdict of "guilty but insane". The explanatory and financial memorandum states the reason for this change was criticism of the latter verdict on the basis of its provocative connotations. While this change is to be welcomed, the Minister does not appear to have been as sensitive in terms of the wording used in the Title, the Criminal Law (Insanity) Bill 2002. According to many experts, the terms "insanity" and "mental handicap" should be disregarded because of their stigmatising effect, which should not be underestimated. This and similar terminology should, therefore, be regarded as outdated. It has also been suggested that the terms "mental disorders" and "intellectual disabilities", which are in line with the wording used in the Mental Treatment Act, would be more appropriate in this context.

Section 5 introduces the concept of diminished responsibility. I agree that the availability of a verdict of diminished responsibility should reduce the danger that a jury will return an insanity verdict when faced with a marginal case. The Minister stated this provision is only needed in the case of murder, which carries a mandatory sentence, and that judges have the discretion to decide otherwise in other cases. Is he certain that all members of the Judiciary will interpret the provision in the manner he envisages? Is it not possible that a judge will decide that if the Legislature wanted diminished responsibility to be taken into account in other offences, the law should specifically say so, particularly now that it will specify one crime for this purpose. In future, if the Oireachtas introduces a mandatory sentence for any other offence, will it be necessary to make an automatic amendment to the Bill?

The Minister rubbished concerns expressed about imposing mandatory sentences on conviction for drug trafficking. His stance was that people who sell drugs are drug pushers and, as such, that is the end of the story. The law must, however, cover every eventuality. Is it not possible that a mentally ill person could be manipulated by drug traffickers and could get caught up in circumstances where all the evidence indicated that he or she was a drug pusher? In such circumstances, is it the Minister's position that a judge could not use his discretion under the Bill? Drug trafficking is a ruthless business and those involved in it are capable of anything, including manipulating and controlling a person with a mental disability. Will the Minister assure the House that judges will have discretion in such circumstances?

The appeals process introduced in section 6, which allows for appeal against a fitness to be tried decision of a lower court, is welcome. The establishment of the mental health review board in compliance with regulations under the European Convention on Human Rights is also welcome. The board will independently review, on a regular basis, the detentions of persons who are being detained in a designated centre by court order having been found not guilty by reason of insanity or unfit to be tried. Various suggestions have been made to the Minister on the composition of the board, the most valid of which is that two consultant psychiatrists should be appointed to it to ensure no decision is ever made without at least one of them being present. Section 11, which gives teeth to the board, is an essential provision.

Section 13 deals with the temporary release and transfer of prisoners. Under this section, the Minister for Justice, Equality and Law Reform or the Minister for Health and Children, depending on jurisdiction, will decide on transfer arrangements. A transparent procedure should be in place to establish what exact consultation the Minister has with the receiving service or agency to ensure appropriate services are available at the new location and to ensure the new service provider can show it has the resources and services to deal with the person being transferred.

Temporary or general release can be a sensitive matter. The thrust of modern mental illness treatment is such that care in the community is the preferred option. The Health Service Executive is doing tremendous work in this field with outreach programmes, accommodation and follow-up work by community psychiatric nurses. Again, however, resources can be a problem. Many people released from mental health facilities become homeless owing to the nature of their illness. On occasion, they can be accommodated by voluntary housing agencies, which are capable of providing housing but incapable of providing the back-up services currently provided by the Health Service Executive and associated agencies dealing with mental illness. The same is true of people released into private accommodation. Is it the case that release should be considered only where there is a responsible receiving agency such as the health board that can guarantee the Minister or an independent group that it has an outpatient resource service to provide the necessary back-up for the patient? Many patients feel that they no longer need to take medicine after release, so without the proper back-up there is a danger that their situations could deteriorate. That is a catastrophe not only for the patient but also for the confidence of the public, which must be maintained since its co-operation will always be needed in facilitating the return and integration of former patients into the community.

The section of the Bill dealing with financial or staffing implications clearly demonstrates the attitude of the Minister and the Government. It is not anticipated that the proposals in the Bill will have significant financial or staffing implications. In such circumstances, it should be clearly understood that the Bill is purely legalistic and will do nothing to improve general mental health services. Some of the Bill's provisions will take further from the general budget provided for mental health if the Department of Health and Children is to build and run regional secure units. According to the first Inspector of Mental Health Services, forensic mental health services nationally are seriously underdeveloped. Services remain inadequate at both hospital and community level. She goes on to say the following:

The Central Mental Hospital (CMH), a facility providing medium and high security beds, is the only designated forensic unit available nationally but has long been recognised as providing accommodation that is of a totally unacceptable standard.

The inspector goes on to point out that because the Central Medical Hospital is the only forensic unit, persons are detained there who could be discharged into a less secure unit or even back into the community. However, that cannot be done because of a lack of facilities, both institutional and community, outside Dublin. I was glad to see that the Minister accepts that view and favours the sale of the site of the Central Medical Hospital and the building of a state-of-the-art centre in Dublin, which one hopes would be followed by the roll-out of similar, smaller facilities at a regional level.

The Minister, like the rest of the Government, has been in power for eight years. If the solution was so painfully obvious to him, for God's sake why does the Government not get on with the job? Why do they not sell the site and build the new facilities? If the Minister and the Government were half as good at producing results locally as they are at producing legislation or commissioning consultant reports, after eight years in power one would expect to see some real progress from a purely practical perspective. I presume it is too much to expect from the Government. We must content ourselves with dealing with this purely legalistic Bill. We welcome the general thrust but hope that the Minister will reflect on some of the amendments made in the Seanad, which will be repeated and added to in this House.

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