John Moloney (Laois-Offaly, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I am very pleased to bring the Criminal Law (Insanity) Bill 2010 before the House. The purpose of the Bill is to make limited amendments to the Criminal Law (Insanity) Act 2006. The 2006 Act was a significant milestone in establishing a new statutory regime governing the way the criminal law deals with mentally ill persons who may have committed criminal acts. The Bill before us provides for amendments in relation to two aspects of the 2006 Act. The provisions concerned are section 4 of the Act which deals with the cases of persons who, because of mental disorder, may be considered by a court to be unfit to be tried on criminal charges, and section 13 which provides for review of detention by the Mental Health (Criminal Law) Review Board. The review board was established by the 2006 Act as a new independent body to review the detention of persons detained in accordance with the Act. Section 13 provides that the review board should carry out regular reviews of persons who have been found to be unfit to be tried or not guilty by reason of insanity and are detained by order of a court in a designated centre. The only designated centre at present is the Central Mental Hospital. The review board has the power to discharge persons from detention conditionally or unconditionally in certain circumstances. In this regard, it must hear evidence relating to the mental condition of the person concerned from the consultant psychiatrist responsible for the person's care or treatment. It also must take into account the welfare and safety of that person and the public interest.

The main amendment to the 2006 Act concerns section 13. It arises from the fact that the review board, since its establishment, has been reluctant to order the discharge of patients who might be considered suitable for discharge subject to conditions because it has no statutory power effectively to enforce such conditions. This has resulted in difficulties, not only for the patients concerned, but also for the Central Mental Hospital, whose limited capacity is being used up by the retention of patients who might otherwise be considered for conditional discharge under the Act. The view of the review board is that it should be possible under the Act to provide for enforceable conditions to be applied to conditional discharge to facilitate the effective use of such discharge.

The 2006 Act envisaged a relatively black and white situation where a person either required in-patient treatment or the person was completely cured. The Minister for Justice and Law Reform accepts that there is a category of patient who is suitable to live outside a designated centre but where, at least initially, safety and health considerations require an ability to return that person for in-patient treatment in a designated centre if there is any material breach of the conditional discharge order. Accordingly, this Bill makes provision for supervisory powers to cover cases where a patient is considered safe to discharge, provided he or she complies with certain conditions, and provided that such compliance can be supervised, and if necessary, enforced.

I might also mention the 2008 High Court judgment in the case of B v . Mental Health (Criminal Law) Review Board and Others. In that case, proceedings were taken by a person who was denied conditional discharge by the review board because it was of the view that it should discharge the person only if it had the power to impose enforceable conditions. The High Court agreed that the 2006 Act did not provide for enforceable conditions but held that the review board acted lawfully in refusing to discharge the patient. The case is currently under appeal to the Supreme Court. A certain urgency attaches to the proposed amendment because of the pending Supreme Court appeal, because a number of persons who might otherwise be considered for conditional discharge are not being so considered and because the Central Mental Hospital must keep them even if they are suitable for conditional discharge and even though it is under pressure for bed space. The opportunity is also being taken to amend section 4 of the 2006 Act which at present allows a court to commit a person who may be unfit to be tried on a criminal charge to the Central Mental Hospital for an initial period of up to 14 days for the purposes of psychiatric examination. On the basis of such an examination, the court can decide that a person who is unfit to be tried should be committed to a designated centre for in-patient or our-patient treatment. The main purpose of the amendment is to ensure the present arrangements are fully compliant with Article 5 of the European Convention on Human Rights, which has been given further effect in our law since 31 December 2003 in accordance with the provisions of the European Convention on Human Rights Act 2003. To guarantee such compliance, it is necessary to provide that a committal for examination can be made by a court only after hearing evidence from a consultant psychiatrist. Some additional improvements are also being made to section 4 which I will explain as I go through the detail of the Bill.

I will now outline the main provisions of the Bill. Sections 1, 2 and 5 are technical drafting sections. Section 3 amends section 3 of the 2006 Act. The amendment will allow the Minister for Health and Children to designate psychiatric centres other than the Central Mental Hospital for the examination of persons referred by the District Court under section 4 of the 2006 Act in cases where a question of an accused person's fitness to be tried arises. The provision is limited to referrals from the District Court so that only persons charged with less serious offences could be examined in such centres. It will allow the Minister for Health and Children to provide for persons charged with minor offences to be examined in community hospitals, which is in keeping with Government policy as set out in A Vision for Change. It will also help to prevent unnecessary referrals to the Central Mental Hospital of persons who could be dealt with in other psychiatric centres.

Section 4 amends section 4 of the 2006 Act. As I mentioned earlier, section 4 is concerned with the procedures for dealing with a person who may have a mental disorder and thus be legally unfit to be tried on a criminal charge. In the absence of any prior medical evidence on the issue, a court may commit the person for a period of not more than 14 days to a designated centre for psychiatric examination. This is so the court can decide on foot of that examination whether the mental disorder, if it is present, renders the person unable to understand the nature or course of the proceedings on one or other of the several grounds set out in the Act. This initial referral may be made by the court at present without recourse to medical advice. It is now proposed in section 4 of the Bill, in the light of detailed consideration of obligations under the European Convention on Human Rights in this area, and the advice of the Attorney General, to provide that a court shall consider the evidence of an approved medical officer as to the person's mental condition before it decides to make an order to commit a person for examination at a designated centre. At present, the psychiatric examination has to take place on an in-patient basis. However, in the amendment proposed to be made by section 4 of the Bill, the court will be able to order that the examination should be done on an in-patient or out-patient basis.

In providing for this amendment to section 4, the opportunity is also being taken to provide that the court may take account of the evidence of an approved medical officer to assist in determining the issue of fitness to be tried and to facilitate an adjournment to allow the person to receive appropriate medical treatment. The latter should help to prevent unnecessary referrals to the Central Mental Hospital and give statutory recognition to informal diversion arrangements, which, I understand, operate quite successfully at present at Cloverhill District Court.

Turning to the provisions relating to conditional discharge, the first amendment relevant to this issue occurs in section 6 of the Bill. Section 6 amends section 11 of the 2006 Act to provide that the criteria to which the Mental Health (Criminal Law) Review Board must have regard in reviewing detention will also apply to reviews of the conditions of a person's conditional discharge and to applications for unconditional discharge from persons who have been conditionally discharged. The criteria are the welfare and safety of the person concerned and the public interest. Sections 7 and 8 of the Bill amend the 2006 Act to provide for enforceable conditions to attach to an order by the Mental Health (Criminal Law) Review Board for conditional discharge.

Provision is made for a comprehensive system on the imposition of conditions, arrangements for supervision of the conditionally discharged person, provisions to facilitate variation of conditions, provision for the conditionally discharged person to be considered for unconditional discharge and arrangements for the return of the person to the Central Mental Hospital where there is material breach of the conditional discharge. Most important, of course, provision is also made for the review by the Mental Health (Criminal Law) Review Board of the detention of a person returned to the Central Mental Hospital under these provisions. Section 7 amends section 13 of the 2006 Act to provide that the Mental Health (Criminal Law) Review Board can conditionally discharge patients under the new section 13A. Section 8 inserts three new sections, sections 13A, 13B and 13C, into the 2006 Act.

Section 13A creates a new scheme of conditional discharge. Subsection (1) provides that the Mental Health (Criminal Law) Review Board may make an order for the discharge of a patient subject to conditions, including conditions relating to out-patient treatment or supervision, or both. Subsection (2) provides that the review board may only make a conditional discharge order where the arrangements in relation to the discharge considered necessary by the clinical director of the designated centre have been made. These include arrangements for facilitating compliance by the person with the conditions, the supervision of the person and providing for the person's return under section 13B if he or she fails to abide by the conditions. Subsection (3) provides that the conditions must be communicated in writing to the person. The effect of the order and consequences of non-compliance with the conditions must be explained to the person. Subsection (4) requires the person to comply with the conditional discharge order. Subsection (5) requires a copy of the order to be sent to the Minister for Justice and Law Reform and the clinical director of the designated centre. Subsection (6) provides that the review board may vary or remove one or more of the conditions of the conditional discharge order, or impose further conditions, on application by the person concerned or by the clinical director. Subsection (7) requires notice of an application under subsection (6) to be given to the person concerned and the clinical director - where the application is not being made by the clinical director. Subsection (8) provides that the person concerned may apply to the review board for unconditional discharge after 12 months from the date of conditional discharge. The person may make subsequent applications if necessary, so long as a period of at least 12 months elapses between applications. Subsection (9) sets out the procedure for dealing with an application for unconditional discharge.

Section 13B sets out the procedures that apply where a person is in material breach of a conditional discharge order. Subsection (1) provides that a person who is in material breach of a conditional discharge order will be deemed to be unlawfully at large. Subsection (2) provides that a person is in material breach of his or her conditional discharge order where the clinical director of the designated centre, on reasonable grounds, believes, first, that the person is in breach of one or more conditions of his or her conditional discharge and, second, that there is a serious likelihood of the person causing serious harm to himself or herself or others or that the person may be in need of inpatient care or treatment. Subsection (3) requires the clinical director to inform a person believed to be in material breach of a conditional discharge order in writing of that fact and the reasons for such belief. Subsection (4) provides that subsection (3) does not apply where the material breach is such as to give reasonable cause for the clinical director to believe that there is a serious likelihood of the person causing immediate and serious harm to himself or herself or others. Subsection (5) provides that the clinical director may make arrangements to effect the person's return to the designated centre, including requesting assistance from the Garda Síochána. Subsection (6) provides for Garda powers of entry and arrest for the purposes of section 13B. Subsection (7) provides that a returned person must be given reasons in writing for his or her return. The provisions of the Act of 2006 will once more apply to the returned person as they did when the person was originally committed to the designated centre under the Act of 2006 or the relevant provisions of the Defence Act 1954. Subsection (8) provides that the clinical director must inform the review board of the return of the person and the review board must review the detention of the person as soon as may be. Subsection (9) provides a definition of the term "authorised person", which is relevant to the provision made by the new section 13C for externally-provided assisted returns.

Section 13C is a technical provision to ensure that staff of private agencies hired to effect the return of patients to the designated centre can be considered authorised persons for the purpose of section 13B. This provision mirrors an amendment made to the Mental Health Act 2001 to take account of legal difficulties in the operation of return procedures.

Section 9 corrects a drafting error in Schedule 2 to the 2006 Act. Section 10 provides for consequential amendments to the Defence Act 1954. Section 11 provides for the short title of the Act and its commencement.

This is a relatively short Bill. Its provisions are limited and are intended to ensure that the difficulties which I have mentioned can be corrected as quickly as possible. It is not in any way a Bill which represents a full review of the operation of the Criminal Law (Insanity) Act 2006. The Minister for Justice and Law Reform, Deputy Dermot Ahern, is planning to have a comprehensive review of the 2006 Act commence in his Department subsequent to the enactment of this Bill. Wider issues relating to the Act can be examined in the context of that review. However, this Bill needs to be enacted as soon as possible to correct the difficulties that I have mentioned. Accordingly, it is of necessity confined in its amendments to ensure that it can be considered as quickly as possible by the Oireachtas. I very much look forward to hearing the views of all Members of the House.

I commend the Bill to the House.

See this speech in context