Paudge Connolly (Cavan-Monaghan, Independent)

I welcome the opportunity to speak on this Bill which is designed to update criminal law relating to insanity, taking into account various advances which have occurred in psychiatry. It is generally recognised that a number of advances have come about in psychiatry from the mid-1950s, particularly with the introduction of medication and related improvements. We now tend to intervene much earlier in illnesses, leading to a more successful treatment. The key to such success is treating people in their environment. It would be more to our advantage if there could be more domestic care.

Much current law regarding insanity almost goes back to the Act of Union, and it is past time that such legislation was brought into the 21st century. We have been working with outdated law for a long time and there is a great need to bring it forward. This Bill is an attempt to do so and, although it may not get every facet correct, it is at least a move in the right direction. This area of law urgently requires reform and mental health policy should be brought more in line with obligations under the European Convention on Human Rights.

The Bill is timely in that it reviews and modernises legislation dating from pre-Victorian times. There was a time when people who became insane were taken to lunatic asylums and effectively locked up for the rest of their lives irrespective of what their actions had been. There was no chance that they could get out. In most cases, their relatives wished to forget about them. Now, there are sad instances of people discovering they had an uncle, aunt, cousin or whoever who was locked up in a psychiatric institution. It was part of the so-called great system pertaining to the late 1950s. Numbers peaked and conditions were not good in terms of people not having their own attire and so forth. People would not accept that conditions were so bad. These people were forgotten about.

Those who drafted this Bill could have provided a somewhat less crude and insensitive Title than the "insanity" Bill. The term conjures the wrong images. I noted that many speakers found the language quite offensive. A submission I have received from the Mental Health Nurse Managers Ireland group suggests the removal of the terms "insanity" and "mental handicap" to prevent the continuation of their use. It claims the stigmatisation effects of such words should not be underestimated and that this terminology is outdated. These people work in the system and I agree that it is outdated. The words "mental disorder" and "intellectual disability" are in line with the Mental Health Act 2001.

We now live in a slightly more enlightened era and we should use terms that are inoffensive. For example, we referred to people who were mentally ill as lunatics in years past. The lunatic asylum became the mental hospital and then the psychiatric hospital. These types of terminology are not useful. The term "mental handicap" in the disabilities sector has been changed to "learning disability". Such names continually change, and rightly so. These titles send out certain signals and there are a number of reasons such aspects should be changed.

Persons with mental illness who would be affected by this Bill would be stigmatised by the use of the word "insanity". It has no neurobiological definition and, as a concept in everyday language, is extremely broad and vaguely defined. Therefore, it is not surprising that this concept is neither used by nor useful to professionals in the neurosciences who regard so-called insane behaviour as the result of abnormalities or changes in the brain. It appears to be a convenient title for a Bill but the proposed review body is the mental health review board and not the insanity review board. That in itself sends a message.

It should not be beyond the ingenuity of the drafters to develop a more appropriate and less offensive Title. A rough medical translation would be psychosis, namely, the more severe types of mental illness involving hallucinations or delusions. The closest neurobiological parallel would be inherent in a disorder that would exhibit these symptoms. Of these, schizophrenia is the most potent example.

Under the new legislation, the current guilty but insane verdict will be replaced by a not guilty by reason of insanity verdict. We have often seen this type of legal defence presented in the United States of America's legal system on television. On a typical television legal show the defence lawyer brings in a psychologist who says the defendant should not be held accountable for his or her actions. This is generally because he or she has a certain mental illness that interferes with reasoning capacity. If the jury believes the person has this mental illness it invariably finds him or her guilty or not guilty. This raises a number of questions that are never clearly answered. Why does being mentally ill excuse someone from criminal guilt? How is a jury qualified to determine a person's mental state? What level of mental illness constitutes insanity? How is someone's insanity proven?

Temporary insanity is another issue. Familiar cases in this country have involved people claiming they are guilty but insane and being transferred to the Central Mental Hospital in Dundrum, to become better miraculously a number of years later, exhibiting no signs of insanity or mental illness. This must be examined as it is obvious that people have used this excuse to claim they were insane at the time but are now not so. One must ask the question whether it is a means of dodging a guilty verdict. It can be and has been used in the past.

The main reason this concept is so confusing is that the distinction between insanity and mental illness is rarely clarified. Mental illness and mental disorder are both psychiatric concepts while insanity, as I mentioned, is a cultural or legal concept. Both mental illness and insanity are related conditions but they are by no means synonymous. Mental illness at the time of the offence is a prerequisite for a not guilty by reason of insanity verdict but legal insanity is not simply a judgment of whether a person has a mental illness. Generally, this verdict is found if a defendant meets one of three conditions: first, due to a mental disorder, the defendant did not understand that what he or she was doing was illegal; second, the defendant did not know what he or she was doing due to a mental disorder; and third, the defendant was compelled to commit the crime by an irresistible force. The matter of irresistible force or impulse is a plea that can be frequently used as there has been a great deal of disagreement about it between the legal and the psychiatric professions. Such a plea might be entered into in respect of persons accused of paedophilia, for example.

A person should only be found guilty of a crime if he or she intended to commit it. If I bump into someone in my car, I am not guilty of an assault but I could be guilty of causing damage. The result is the same but I have not committed the crime as there was no intention. Perhaps I could be found guilty of a lesser crime, such as reckless or careless driving. We must examine the concept of a lack of full intention. It should not simply be the case that having a mental illness means no guilt. Perhaps there is partial guilt as there are certain levels of awareness, which should be considered in judgments. Judgments should not be absolute.

Mental illness can alter a person's perception of reality so that he or she does not realise the criminal nature of his or her actions and has no choice but to commit the crime. When this happens, a court would believe that the person lacked the element of intention necessary for criminal guilt. However, mental illness alone would not be a sufficient defence to establish a person's guilt or otherwise. Under this legislation, a judge will be enabled to seek a psychiatric opinion, which is welcome. Psychiatrists will be able to offer expert opinions about whether the person would require institutionalisation or otherwise, such as on a day patient or outpatient basis.

Nevertheless, the Bill does not specifically provide for the opportunity for an outsider to avail of services within the community. These community care services, which include nursing, day care, vocational rehabilitation or addiction counselling, can make major contributions to an offender's recovery. Care in the community would be a preferred option in modern mental health treatment and the inpatient committal should be used as an option of last resort. If one can treat a mental illness in a person's home and environment, it is much more likely there will be a better outcome. One is tackling illness at an earlier stage, which is the key to successful treatment in mental illness cases. For example, outreach and home-based teams have been established in County Monaghan, which seem to be successful in terms of reducing the number of people requiring admission. I am not suggesting that we should do away with admissions to psychiatric hospitals at any stage. There are ways of delivering more effective treatment and these should be examined and provided on a national basis. Inpatient mental health services should be exclusively for those people who need inpatient treatment.

Amendments to the Bill proposed the removal of the terms "insanity" and "mental handicap"; the inclusion of a statement of principles based on the international human rights instruments and including a section on rights based on international human rights instruments; the inclusion of provisions for an independent mental health advocacy system, the introduction of community and multidisciplinary perspectives throughout the Bill, and the relation of the Bill to the Mental Health Act 2001 by using the definition of "mental disorder" used in the Mental Health Act 2001; the change of the phrase "designated centres" to "approved centres" or as defined under the Mental Health Act 2001; the specification of the role of the Inspector of Mental Health Services to agree the inspection of centres designated under the Bill; the replacement of the mental health review board with mental health tribunals as defined in the Mental Health Act 2001; the introduction of provisions to address concerns raised in respect of the impact of the Bill on mental health services; the introduction of a provision of mental health assessment during trial and before sentencing; the inclusion of a section on the transfer of prisoners in secure forensic mental health facilities; the safeguarding of the rights of persons under 18 years of age to appropriate assessment, care, treatment and review; and the revision of explanatory and financial memorandums to reflect fully the resource implications of the established mental health provision within the criminal justice system which meets international standards of best practice, including human rights instruments.

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