Michael McDowell (Dublin South East, Progressive Democrats)

I move amendment No. 20:

In page 5, to delete lines 14 to 25 and substitute the following:

"(b) Subject to subsections (7) and (8), in a case to which paragraph (a) relates, the Court determines that an accused person is unfit to be tried, that Court shall adjourn the proceedings until further order, and may—

(i) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to subsection (6) and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, commit him or her to a specified designated centre until an order is made under section 12, or

(ii) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to subsection (6) and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001) and is in need of out-patient care or treatment in a designated centre, make such order as it thinks proper in relation to the accused person for out-patient treatment in a designated centre.".

I stated on Committee Stage that I would re-examine the provisions of section 3. What I had in mind was that, as drafted, the provisions of the section did not go far enough to give the courts discretion to deal with a person on the basis that the degree of mental illness might not be serious enough to warrant inpatient care or treatment at a designated centre. Generally speaking, the criminal justice system is concerned with protecting the public, punishing criminals and administering the law in a fair and just manner.

However, the police and prosecutors in the courts should strive to conduct their business in a way that protects the rights not only of victims of crime but of particularly vulnerable persons, including those unfortunate enough to suffer from mental disorders. An important consideration in all this is that no one with a mental disorder should be inappropriately held in police custody or in prison. I am aware that there is concern that people with mental illnesses are prosecuted and imprisoned, often for relatively minor offences, and I think here of recent research by the national forensic science mental health service at the Central Mental Hospital in Dundrum, which was carried out for the Prison Service.

The Henchy report, on which much of this Bill is based, referred to the need to ensure that persons who under the existing law would pass, at least in the first instance, into a prison or other place of detention, should instead go to a designated centre to become a patient rather than a prisoner, generally under ultimate control of the courts. Section 3 has been drafted with that objective clearly in mind. The report, however, also envisages that the courts have the power, based on expert psychiatric opinion, to decree that outpatient treatment and community care should be the primary consideration, so that only those whose condition required it would be detained for inpatient services. It is that possibility that my amendment seeks to address, allowing a court to decide on the basis of expert opinion whether a person charged, whose fitness to stand trial is an issue, could be referred for treatment or care on an outpatient basis. The Mental Health Commission also wrote to me on this point, suggesting that I provide for this additional form of court diversion.

Overall, the section as amended will bring us more into line with the relevant 1991 UN principles referred to by Deputy Ó Snodaigh. In the circumstances, the amendments also meet concerns expressed by the Department of Health and Children, particularly concerning the Bill's implications for the provision of mental health services. Such conclusions could only be reached by the court on the basis of evidence provided by an appropriate medical officer that the accused person is suitable for outpatient treatment. We must protect the public too; we cannot have people put out of the courts who clearly should not be. There is an evidential basis.

I draw Deputies' attention to the terms of the amendments that provide for the outpatient option. There are references in the relevant subparagraphs that the accused person is suffering from a mental disorder or a mental disorder within the meaning of the 2001 Act. That is to ensure that in this context the court will be able to consider the widest possible range of mental illnesses, and not simply the narrow definition for insanity purposes.

The difference with the inpatient option is that, by confining the definition to a mental disorder within the meaning of the 2001 Act, the court would consider only the more serious cases of mental illness, which are not suitable for outpatient treatment or care. That is because mental disorder, as the term is defined in the 2001 Act, refers to the possibility of the person concerned causing immediate and serious harm to himself or other persons. There are references to aggressive behavioural symptoms or seriously irresponsible conduct. Clearly, in such cases, outpatient treatment or care should not be an option, and the relevant provisions have been drafted accordingly.

Amendment No. 25 is a consequential amendment arising from the amendment providing for a court to refer a person to outpatient treatment. In those circumstances, the reference to committal, which was originally framed in the context of sending someone for inpatient care or treatment, is inappropriate.

Regarding Amendments Nos. 21, 24, 26, 31 and 39, the revision of section 3 already allows a court to send a person to a designated centre, which includes a local psychiatric centre, for care or treatment. My earlier amendments also allow for that referral option. In the circumstances, the other amendments are unnecessary if the official ones are accepted by the House.

See this speech in context