Frank Fahey (Galway West, Fianna Fail)

On behalf of the Minister I thank all the Deputies who contributed to this debate on the Bill. Their detailed interest in its provisions reflects its importance and the Minister looks forward to a continuing and constructive input from them during the forthcoming Committee Stage debate. While the Minister is open to any suggestions which may be tabled with the intention of improving the Bill, he reminds the House that much time was spent both on Committee and Report Stages in the Seanad on amendments relating to some of the issues which Deputies raised during this Second Stage debate. He will table some other amendments, most of them textual or technical.

I will deal with some of the more substantive issues raised during the debate. However, if I do not have sufficient time to comment on other points raised by Deputies, I am sure they can be revisited on Committee Stage.

The question of diminished responsibility and of confining it to cases of murder was raised by Deputies Jim O'Keeffe and Gerard Murphy. As the Minister stated, the underlying purpose of the plea is to give the courts flexibility in sentencing in appropriate cases of unlawful killing. In other words, the plea is to be explained primarily in terms of the mandatory sentence for murder. There is no need to apply this concept of mitigation in the case of other crimes where there is no mandatory sentence. In those instances the judge can already take into account the mental condition of the convicted person and tailor the sentence accordingly. There might be some sense to apply diminished responsibility to other offences in a legal system which has fixed tariffs for specific offences or inflexible guideline sentencing principles which set out a going rate for particular offences and which leave no element of discretion to the trial judge. However, we do not have such fixed and rigid rules.

With regard to Deputy Gerard Murphy's question about the Minister being certain that the Judiciary will only apply diminished responsibility in cases of murder, I refer the Deputy to section 5 of the Bill which deals only with the circumstances where a person is tried for murder. The position could not be clearer.

However, there is already one statutory instance which comes very close to applying the concept, the Infanticide Act 1949, which contains special rules where a child under 12 months is killed by the mother while her mind is unbalanced in the aftermath of birth. In these circumstances the killing is infanticide. This is a species of manslaughter and the sentence is the same as for manslaughter which carries a sentence of up to life imprisonment. The Minister is considering, however, the relationship between this Act and section 5 of the Bill and he may return to the House with certain amendments in that regard.

Deputy Jim O'Keeffe expressed some concerns about the defence of irresistible impulse and how a person might decide whether an act was committed by way of such impulse. The issue of irresistible impulse was raised by Senator Henry on Committee Stage in the Seanad. The Minister explained at the time that the purpose of the Bill in terms of the test for insanity for the purposes of criminal law is to restate the current position as it exists in common law. The third limb of the test for insanity, the volitional element, as it exists in our law and as set out in section 4(1)(b)(iii) of the Bill is known as "irresistible impulse". It has been referred to as the "policeman at the shoulder" test. In other words, would the person have still committed the act if a policeman had been standing right beside him. An affirmative answer indicates the test is met. To constitute this form of insanity, the person must have had an irresistible impulse and not an unresisted impulse and it must have arisen from a defect of reason due to a mental disorder. The defence of irresistible impulse was clearly accepted by the Supreme Court in the case of Doyle v. Wicklow County Council in 1974, although earlier cases had given indications that it might well form part of Irish law.

The projected costings of the review board versus the ad hoc advisory committee were raised by Deputy Jim O'Keeffe, as were the costs associated with the establishment of the proposed independent mental health criminal law review board which will have full responsibility for the ongoing review, assessment and possible release of all persons detained in accordance with the provisions of the Bill. Currently the costs associated with reviews by an advisory committee may be broken down into committee fees and the fees payable to the patient's representatives. The amounts will vary in each case depending on the time involved and the number of meetings required. However, it would be reasonable to assess the total fees involved per case to be in the region of €10,000 to €15,000.

The review board, however, will have a much higher workload and cases will be reviewed on an ongoing basis. The Minister has not yet decided on the number of members of the board. It will also need to have a permanent secretariat for administrative duties. While the Minister does not expect that the costs will be significant, he is unable to give the House any definitive figures yet.

The question of why certain of the Human Rights Commission's recommendations were not taken on board was raised by Deputies Jim O'Keeffe and Ó Snodaigh. In the short time available it would not be possible to outline the detail of the commission's recommendations and the reasons the Minister did not take all of them on board. I am sure attention will again be drawn to the commission's recommendations during the passage of the Bill through the House and the Minister will elaborate further at that time, if required.

Some of the points on which the commission commented have already been raised by Deputies during this debate. These would include such matters as the language used in the Bill, the inclusion of prisons in the definition of designated centres and the question of irresistible impulse. The commission also raised questions about, inter alia, the availability of medical evidence in fitness to be tried proceedings, the role of the mental health criminal law review board compared with the tribunals to be established under the Mental Health Act 2001, and the need to shorten the periods of review by the review board from six months to three months. One of the commission's recommendations was addressed by way of amendment in the Seanad when the Minister reduced the period of detention for assessment purposes from 28 to 14 days.

The commission also had reservations about the consent of the Minister for Justice, Equality and Law Reform in the context of the powers of the new review board in section 11(6). Deputy Cuffe raised this point and expressed concern about the board's independence and procedures. The Minister sees no difficulty in this matter. Section 11(6) requires the review board to make specific provision in its review procedures for the matters listed. The inclusion of the requirement for the Minister's consent to the procedures is merely to ensure that these matters are specifically addressed. The review board will be fully independent in how it undertakes its review functions. The Minister has noted Deputy Gerard Murphy's comments and others on the composition of the review board. As I already stated, the Minister has not yet finalised his thoughts on the precise make-up of the board.

The protection of the public has been fully taken on board in the Bill. This matter has been raised by Deputies Jim O'Keeffe and Deenihan. The Minister is happy that the provisions of Bill are sufficient to ensure that the protection of the public will always be a priority. The provisions relating to the detention of persons found not guilty by reason of insanity or unfit to be tried, combined with the proposal for a criminal law mental health review board are paramount in this regard.

Views were expressed in the other House that the functions which the Bill confers on the review board could be performed by the mental health tribunals provided for in the Mental Health Act 2001. The Minister fully acknowledges the important work to be carried out by the mental health tribunals under the civil law system for both voluntary and involuntary referrals where breaches of the criminal law are not involved. However, the Minister does not accept that those tribunals should have a role in the area of law governed by this Bill.

As the Minister stated in the Seanad, public confidence in the criminal law must be maintained. If an individual is acquitted by reason of insanity, the public must know if it is appropriate for that person to be released from detention in a designated centre. Until now, it has been the responsibility of the Minister for Justice, Equality and Law Reform to make decisions whether the individual should go free from the Central Mental Hospital on the basis that he or she is cured. However, this must change for reasons associated with the Convention on Human Rights. Accordingly, a specialised board, the mental health criminal law review board, is being established to deal with all the issues involved arising out of the detention of persons who have committed criminal offences, including the matter of release back into the community.

The Minister points out that provision is made in section 11(6) for the Minister for Justice, Equality and Law Reform, the Director of Public Prosecutions and the Minister for Defence to be heard or represented at sittings of the review board. In the Minister's view, these provisions will ensure that issues relating to the protection of the public will always be kept very much to the fore when the review board is required to consider the possible release of such persons.

As regards the correspondence referred to by Deputy Deenihan during his speech, the Minister wishes to advise the Deputy that he has received the Deputy's letter and the matter is being attended to in his Department in consultation with the Garda authorities. The Minister will revert to him as soon as possible on the points raised.

The issue of definitions and language used inthe Bill was raised by Deputies Costello, Cowley, Cuffe, Ó Snodaigh, Gerard Murphy and Neville. Deputy Costello referred to the definition of mental disorder used in the Bill for determining criminal liability and to the complexities associated with the legal and medical overlaps in this regard.

Deputies Cuffe, Cowley, Ó Snodaigh and Gerard Murphy referred to the language in the Bill and the use of the words "insanity" and "mental handicap". These terms were the subject of much lengthy debate in the Seanad. On the definition of mental disorder, the Minister wishes to reiterate what he stated in his Second Stage speech. The defence of insanity raises complex issues involving the overlapping disciplines of law and medicine. The approach adopted in the Bill takes that overlap into account by providing for two definitions of mental disorder: one to be applied by the court for the purposes of the criminal law during the course of the trial, the other for the purposes of dealing with the accused person following the court's arrival at a verdict of not guilty by reason of insanity or of unfitness to be tried on the basis of the definition in the Mental Health Act 2001.

The policy underpinning this Bill is quite deliberate. That policy dictates that in the specific context of the Bill as a criminal law measure, the definition of the term mental disorder must first be framed against the existing position in common law. It is not proposed to move outside that framework and that is why the Bill does not propose to be radical in this most complex area. The Minister believes it is important to stress that no singular or uniform solution has been adopted in the various common law countries on this complex issue, including those with which we are closely connected.

Our law places the matter firmly within legal parameters directly related to personal responsibility for one's actions. In this scenario medical evidence will be influential but not decisive. This means that an accused who has been diagnosed as medically insane may fail to satisfy the criteria for legal insanity in the criminal law. The Bill is designed to deal primarily with the criminal law aspects of the issue and, once that issue has been determined by the court, with the question of care and treatment.

The Minister notes that calls to align the definition of mental disorder in the Bill with the definition in the Mental Health Act 2001 are misplaced. It is important to understand that the use of the term in the Bill is not to provide just a defence of mental disorder but mental disorder giving rise to the case that the accused person does not understand the nature of the act done or that it was wrong. That is the foundation on which our criminal law in this difficult area is built and the Minister feels that he must construct our approach in the Bill on those basic foundations and ensure that we do not disturb them.

On the broader issue of the language used in the Bill, the Minister does not wish to get into the detail now as he is sure it will be raised again on Committee Stage. However, in his opinion we cannot be too precious about language. Use of the word "insanity" conveys to ordinary people an appropriate meaning and it is easily understood. In the Minister's view, the use of less pejorative terminology might result in widespread use of the plea on a mischievous basis. It might also give the misleading impression that any mental disorder, no matter how trivial, would justify returning a verdict of not guilty by reason of mental disorder. The word "insanity" signifies a threshold of disorder which could not be regarded as trivial or minor. In my opinion, changing the word "insanity" to "mental disorder", for instance, would signify that the threshold is being lowered significantly.

Use of prisons as designated centres was raised by Deputies Costello, Cuffe, Ó Snodaigh and Gerard Murphy. The designation of centres where persons covered by the terms of this Bill will be accommodated is a matter for the Department of Health and Children, in consultation with the Department of Justice, Equality and Law Reform where such a centre is located within a prison. As the Minister stated in the Seanad when this point was raised, on the one hand the State has the duty to provide care and treatment for the person who has been found by a court to be unfit to be tried or not guilty of a criminal offence by reason of insanity. On the other hand, there may be situations where it might be appropriate to detain a person in a prison rather than in a psychiatric hospital. Unfortunately, that is the reality. We cannot rule out that at some stage the requirements of public safety may override other considerations and that a person may have to be detained within the confines of the most secure facility available.

The Minister wishes to make the point that we are talking about a quite exceptional circumstance here. The type of person involved could be someone with a mental disorder which manifests itself in abnormally violent or aggressive behaviour and with whom no designated centre would be equipped or staffed to deal.

Deputies Ó Snodaigh and Gerard Murphy referred to the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, otherwise known as General Assembly Resolution 46/119 of 17 December 1991. The Deputies questioned whether the proposals in the Bill which allowed for a prison, or part thereof, to be used as a designated centre were compatible with the UN principles. In the case of the exceptional cases I am talking about, the Minister thinks so.

Expenditure in the mental health services area, the need for additional resources for both inpatient and outpatient care and responsibility for Central Mental Hospital were raised by Deputies Costello, Cowley, Ó Snodaigh and Gerard Murphy. A number of comments were made on the levels of funding for mental health services and on the Minister's responsibilities for the Central Mental Hospital. I remind Deputies that responsibility for the resourcing of mental health services and related issues such as community-based facilities is a matter for the Department of Health and Children. That Department, not the Minister's Department as was suggested in some contributions, is also fully responsible for the Central Mental Hospital.

The need for consistency with the Mental Health Act 2001 was raised by Deputy Ó Snodaigh. A number of amendments were proposed on Committee and Report Stages in the Seanad which were designed to align the provisions of this Bill with those of the Mental Health Act 2001. The question of aligning the definition of mental disorder, to which I have referred, was chief among those amendments. The Minister profoundly disagreed with the proposition that there should be an alignment between the Bill and the 2001 Act and he will not be changing his view on this.

Without rehearsing the arguments in too much detail, the purpose of the Mental Health Act 2001 is to govern the circumstances in which people can or cannot be admitted to psychiatric institutions against their wishes and to set a framework for the treatment of patients with mental illnesses. The purpose of this Bill is different in that it seeks to establish a mechanism for decisions by the courts that people are to be excused criminal responsibility in certain circumstances and to deal with other issues such as inability to plead. There should not be any spillover effects between the two areas of law.

Deputy Gerard Murphy raised the issue of intoxication and whether the term "intoxication" encompasses intoxication by drugs. He suggested clarification might be required on Committee Stage to explain the difference between so-called social drugs and drugs prescribed by a doctor. The Deputy also questioned whether a plea of diminished responsibility is now unacceptable in the case of intoxication. In the latter regard, the Minister presumes the Deputy was questioning whether a person could plead diminished responsibility due to his or her being intoxicated. I can confirm for the Deputy that intoxication would encompass substances other than alcohol. On the Deputy's other points, the reference in the Bill to intoxication arises in the context of the definition of "mental disorder". Its inclusion is to make it clear that a person who commits an offence cannot claim to be suffering from a mental disorder by virtue of his or her being intoxicated.

The Deputy also referred to section 3 and the power therein for the court to acquit if it believes there is a reasonable doubt that the defendant committed the act in question. The Deputy suggests this creates a conflict which the Minister must resolve in that it denotes a strong suspicion of guilt by the court in respect of the defendant in circumstances where the court decides not to acquit.

The Minister addressed the circumstances described by the Deputy during Report Stage in the Seanad by adding two new subsections, subsections (9) and (10), to section 3. This arose from Senator Tuffy's having raised this same point on Committee Stage. Having reflected on Senator Tuffy's amendment, the Minister took the view that there was potential in section 3(8), as drafted, for a court to conclude, without the benefit of a full trial, that there was not reasonable doubt that an accused carried out the alleged act. Clearly, such a conclusion could be prejudicial to the interests and good name of the accused thereafter or at any potential trial at some future date. The Minister therefore tabled official amendments that addressed the point raised by Senator Tuffy and Deputy Gerard Murphy.

Deputy Neville raised the issue of mental health courts. The establishment of a mental health court system on the lines of similar initiatives undertaken in the United States, particularly in Alaska, was proposed by the Irish Penal Reform Trust in its policy paper published in 2001 entitled Community Solutions to the Criminalisation of the Mentally Ill in Ireland. This type of initiative involves a centrally organised co-ordination of court, agency and mental health resources. All offenders with a history of mental illness would appear in these courts before judges who would have special expertise in mental health issues. The judge would also be responsible for co-ordinating the role of the court with the police, the prosecution, the defence and the mental health agencies.

The proposals in this Bill deal with certain aspects of this matter in the context of persons who come within the definition of criminal insanity in our criminal law and their referral by the courts to a designated centre as defined in the Bill. This is in line with a recommendation in the Henchy report. However, the Bill is not designed to alter the sentencing powers of courts to include treatment orders so that persons who are mentally ill but not found to be criminally insane and who are charged with or convicted of a criminal offence could be sent to an appropriate local hospital instead of being committed to prison.

While the Minister generally favours moves to ensure the more appropriate placement of persons suffering from mental illness as defined in criminal law and elsewhere, the proposal in question involves major policy and resource issues for my Department, the Prison Service, the Courts Service and, especially, the Department of Health and Children. In the circumstances, the immediate priority is the early enactment of the Criminal Law (Insanity) Bill.

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