Michael McDowell (Dublin South East, Progressive Democrats)

I move amendment No. 2:

In page 4, between lines 2 and 3, to insert the following:

""intoxication" means being under the influence of any alcoholic drink, drug, solvent or any other substance or combination of substances;".

During Committee Stage debate of the definition of "mental disorder" Deputy English made the point in support of a Fine Gael amendment relating to intoxication that the Bill as presented did not adequately define "intoxication" or deal with the state of mind induced by intoxication. His principal concern was to ensure that the term "intoxication" embraced all intoxicants and not just alcohol.

It might be useful to refer to the report of the Law Reform Commission on intoxication published in November 1995. It states that the definition of intoxication or intoxicant, in the sense that either term involves the consumption of drugs as well as alcohol, does not appear to have given rise to any difficulty in any jurisdiction, including ours, studied by the commission in the course of its work, nor was it raised as an issue by any of the experts who met with the commission. In practice, intoxication is not accepted as a defence in Irish courts. The commission went on to point out that if anything, intoxication was found to be an aggravating factor.

In response to the points made by Deputies English and Costello on Committee Stage, I undertook to examine whether a definition of intoxication should be inserted in the Bill. I have come to the conclusion that for the sake of clarity, it would be better to define the term. Therefore, I propose a definition which is drawn from the definition in section 4 of the Public Order Act 1994. This should meet the concerns expressed by both Deputies and they should consider whether they are happy with the definition now provided.

The amendment defines intoxication as being "under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances". It is a fairly comprehensive definition.

With regard to amendments Nos. 4, 5, 6 and 7, Deputies already know my position on the issue of the language used in the Bill. These amendments were comprehensively dealt with in the Seanad and were discussed again, in some detail, on Committee Stage in this House, on the basis of formal amendments which were tabled by Deputy Costello, in the case of the three points under discussion. I do not want to repeat at length what I said on that occasion but with regard to amendments Nos. 4 and 13, lengthy discussions took place in the Seanad on the definitions and language used in the Bill. The reason behind some of the amendments proposed in the Seanad was to align the definition of mental disorder for the purpose of this Bill with that used in the Mental Health Act 2001. I profoundly disagreed with the proposition that there should be an alignment and continue to do so.

My reasons can be illustrated by an example. A person might have to be deprived of his or her liberty and committed to a mental institution for gross and chronic alcoholism. However, we do not want to allow a situation where, because that is possible, gross and chronic alcoholism can be grounds for claiming diminished responsibility in criminal law. Some argued that the two definitions should be aligned but when one is referring to criminal law, the range of mental conditions that one wants to provide for under insanity legislation is not the same as the range of conditions that one might want to provide for under health legislation covering the treatment of people for various disorders. Therefore, while strong arguments were put forward for using the same definition in both contexts, stronger arguments were put forward for not doing so.

As I said on Committee Stage in the Seanad, the purpose of the Mental Health Act 2001 is to govern the circumstances in which people can 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 court that people are to be excused from criminal responsibility in certain circumstances and to deal with other issues such as an inability to plead and so forth. There should be no spill-over effects between the two areas of law. In particular, if the High Court is deciding what exactly the term mental disorder, as used in the 2001 Act, means in the context of whether a person is liable to be committed to a mental institution against his or her wishes, that decision should not automatically feed into how criminal trials are run. The circumstances are different and two different policies could be at play.

To revert to my example of chronic alcoholism, criminal law effectively states that if a person drinks chronically, even if he or she is addicted to alcohol, and murders somebody while under the influence of an intoxicant, that is, if anything, an aggravating factor. At the same time, it may be very good policy under the Mental Health Act to commit somebody who suffers from that problem for treatment, against his or her wishes. If a High Court judge held, for instance, that chronic alcoholism was a fit reason to commit somebody under the 2001 Act and we align the two definitions, that might mean that it also becomes a defence to a murder charge in the criminal law. The same applies to drug addicts, who would be able to invoke as a defence the fact that because their condition was one that rendered them liable to be committed to a mental institution for treatment against their wishes, it followed automatically that they were entitled to rely on that fact as a reason for claiming diminished responsibility under ordinary criminal law. I do not want to chain the two concepts together. It is better to keep the two legal frameworks separate and to have judicial decisions made in the context of the relevant Act.

With regard to amendments Nos. 5 and 6, I said on Committee Stage I would look again at the use of the term handicap as it relates to mental disorder. I have done that but am still not convinced change is necessary. We use all sorts of words in the English language which are considered to be intolerable. However, the term mental handicap is not a pejorative term. I referred previously to the use of the word handicap in totally different contexts. It is not an exclusionary term. It simply exemplifies the fact that some people may be at a disadvantage relative to others. Sometimes we get very choosy and picky about the language we use, recent events notwithstanding, but the term handicap is not a pejorative term. In fact, in a sporting context, it is used to show an equalising tendency, whereby some people need assistance in order to compete on a level playing pitch. Mental handicap is a term which is easily understood. A juror would understand it and it is not a Victorian or pejorative term. Therefore, it is not worthwhile removing it from the Bill.

The definition of a mental disorder contained in the Bill is of fundamental importance and is tightly worded. To amend it in the manner suggested by amendment No. 7 would introduce uncertainty into an area where there can be no room for doubt. The reference to "other disease or medical condition" is far too vague and would allow arguments to be made which have the effect of widening the scope of the defence. I am not prepared to allow that to happen unless I am convinced that we know what we are doing when we insert vague terms.

I remain opposed to amendment No. 9, which was withdrawn on Committee Stage. I see no reason to define the term "mental illness". This Bill, in large measure, follows the recommendations made in the Henchy report from 1978. Indeed, it is a poor reflection on the political system that we are only coming to act on the Henchy report over a quarter of a century later. As far as the definition of mental illness is concerned, which is being discussed at length, the report includes a reference to mental illness but does not define it. What Judge Henchy and his fellow committee members proposed so long ago is still correct. I am concerned that if this amendment was adopted, it could open the prospect of personality disorders being brought within the definition. Such disorders are notoriously subjective from a psychiatric perspective. Jurors would then have to listen to psychiatric evidence as to what actually amounts to a personality disorder as opposed to a character trait. We are not in the business of excusing people from criminal liability because of their character or propensities. It must be much more fundamental than that. The criteria at paragraph (c), "serious disorder of thought form" and at (d), "a severe disturbance of mood" would set the threshold at an unacceptably low level. It would give rise to public disquiet, particularly if we inserted those provisions and juries began to let people off murder charges on the basis that they were suffering from a severe disturbance of mood or a serious disorder of thought form. We should stick with the text as it is and follow the Henchy report in that respect.

Amendment No. 47 proposes to change the reference to mental condition in section 17, dealing with evidential matters, to mental disorder. The term "mental condition" is correct in this context, as the question of whether an individual is suffering from a mental disorder as defined in the Bill would not have been addressed at that point of the proceeding. Section 39, attached to the Henchy report, deals with this very point. It illustrates why care must be taken with the use of these terms in the Bill. It too makes a distinction between "mental disorder", used generally in the Henchy report as the fundamental term, and "mental state", used in the Bill in the equivalent provision to section 17. The Henchy report made a distinction between the two definitions for the purpose corresponding to section 17. The reason for the distinction in the Henchy report and this Bill is to underscore the fact that in the specific matter of the requirement of notice being given to the prosecution about the fact that the defence intends to adduce evidence on the issue, it is not tied to the definition of "mental disorder" as used in the Bill, nor should it be.

Amendment No. 51 proposes to change the reference to "insanity" to "mental disorder" in the Short Title. The amendment cannot be accepted because corresponding changes would have to be made to the rest of the Bill's terminology. It would also be undesirable because the use of the less pejorative terminology, "mental disorder" instead of "insanity", may result in a 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. The word "insanity" signifies a threshold of disorder which cannot be regarded as trivial or minor. If one claims a person is insane in ordinary parlance, it does not just mean the person is a bit odd.

The criminal law is the main focus of the Bill. The term "insanity" is a term of art in connection with criminal law. I do not wish to introduce any doubt or uncertainty into the area. I do not want to wake up some morning, even after a restless night, to discover a judge has interpreted it in a way which was not originally envisaged by the House. This is an attempt to give direction to the courts as to how they should deal with these matters. Throwing up untried and vague language will prejudice, rather than advance, the administration of justice.

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