Kathleen Lynch (Cork North Central, Labour)

I will not take anything near to my allotment of 30 minutes. As Deputy Shatter has already made many of the points I intend to make, I hope Members will not be put off by repetition. While this is a fairly short Bill, it nevertheless is a highly significant one. On behalf of the Labour Party, I welcome the Criminal Law (Insanity) Bill 2010. The Bill represents a step forward in respect of the relationship between criminal law and mental health. While it does not constitute a full review of the Criminal Law (Insanity) Act 2006, I welcome the Minister for Justice and Law Reform's plans to conduct a full review of that Act once this Bill has been enacted.

As a State, Ireland has a poor record in caring for its citizens who suffer from mental illness. The State branded these people as lunatics and adopted an "out of sight, out of mind" approach to care for the mentally ill. All Members are familiar with the asylums, those imposing grey buildings dotted around the country, which were used to house those with mental illness. Incarcerating people in such environments often served to further compound their illnesses. The issue of rights was considered irrelevant because the State's intervention was regarded as benign and as in the best interests of the person. Mental health services have come a fair distance since then but there is still much work to be done. We are moving towards a more rights-based approach to the provision of services for mental health and this is to be welcomed. The improvements in the criminal law system regarding mental health comprise an important part of this work.

I will make a few more general points before talking more particularly about the Bill and the amendments being proposed by the Labour Party. There remains a stigma on the issue of mental health. While many people regard it as a taboo subject and something which is difficult to talk about, at the same time we all probably know someone who has suffered or continues to suffer from a mental illness. As a society we must confront the silence that surrounds the issue and must begin to recognise that many mental illnesses can be successfully treated. I compliment the Minister of State in this regard. It often is extremely difficult to admit that one ever had a difficulty but it is only through people in public life so doing that movement will be seen.

At a general level, there always has been an uneasy relationship between the criminal justice system and the area of medical, psychiatric and psychological sciences. The criminal law is particularly relevant because there has been a relatively frequent occurrence of cases in which crimes have been committed by persons with mental disorders, often by reason of such mental disorders. As a consequence, they may not have been able to establish intent for a crime or they may not, in certain circumstances, have had the capacity to understand the criminal justice process. There have been great difficulties in accommodating recognition of persons with mental illness in the criminal justice system. Obviously, a balance must be struck between recognising genuine mental illness and ensuring that people cannot evade the full rigour of the law by falsely claiming to be suffering from a mental illness. While we have not managed to achieve that balance yet, we may be getting there.

It is a matter of shame that so many people with mental illness continue to be imprisoned when what they really need is medical treatment. I acknowledge the difficulties in this regard but there is still much to be learned in the field of mental health sciences which can better our understanding of how to approach the issue in a criminal law context. One should endeavour to ensure that legislation in this area is in line with best practice with regard to care for the mentally ill. I hope the Bill as proposed will go some way towards addressing these issues.

The primary purpose of the Bill is to amend sections 4 and 13 of the Criminal Law (Insanity) Act 2006. The 2006 Act was welcome because it improved the law on criminal insanity and allowed for a statutory definition and restatement of the test for criminal insanity, which previously was based on existing rules in the common law. A new verdict of not guilty by reason of insanity replaced the guilty but insane verdict and a new plea of guilty but with diminished responsibility was introduced. The 2006 Act also set down provisions in respect of a person's fitness to be tried. It amended the law on infanticide, provided for new rules on the transfer of patients who become mentally ill while serving a sentence and established the new review board. This brought Ireland into line with many other countries, reflected changing attitudes to mental health and recognised the complexities therein.

The principal themes of the 2010 Bill are improving the fitness to be tried mechanism to bring it into compliance with the European Convention on Human Rights and providing that discharge and post-release conditions imposed on persons by the Mental Health (Criminal Law) Review Board will be legally enforceable for the first time. These conditions will apply both to those who have been found to be unfit to stand trial and those who have been found not guilty by reason of insanity. It is proposed that section 4 removes any doubt about compliance with the provisions of the European Convention on Human Rights. The convention requires that, except in emergency cases, an individual cannot be deprived of his or her liberty unless he or she is found, on the basis of objective medical expertise, to be of unsound mind and that any mental disorder must warrant compulsory confinement. It is necessary to comply with this convention both to respect a person's liberty and to ensure his or her personal safety.

The second important change proposed in the Bill relates to an amendment to section 13 of the 2006 Act. This amendment will allow enforceable conditions to be applied to conditional discharge. There was an element of confusion in this regard in the sense that the 2006 Act envisaged a rather black and white situation in terms of a person's fitness for discharge. This neglected or ignored the reality in psychiatric care where cases might arise of persons who are capable of some sort of conditional discharge. However, the conditions were not enforceable. This anomaly came to light in a number of High Court cases, most notably highlighted by Mr. Justice Hanna in JB v. Mental Health (Criminal Law) Review Board. This case found that the Mental Health (Criminal Law) Review Board had no mechanism available to it by which it could make post-release conditions binding on the applicant. The Minister of State has spoken of the urgency attached to this amendment given that there are people currently in detention who should, if the law allowed it, be considered for conditional discharge. As such, I welcome the proposed amendment which underpins the principle of conditional discharge.

While the Labour Party broadly welcomes the Bill, we have some concerns. First, we have a difficulty with the rather outmoded language employed by the Bill. The use of language can be delicate in many circumstances but is particularly so in the case of mental health. In light of this, the Labour Party has proposed amendments which would replace the word "insanity" with "mental disorder". The word "insanity" has specific negative connotations and is out of date. It is important that our legislation uses the most appropriate terms available.

Second, the Labour Party is proposing an amendment which would allow people to be detained in a "...suitable place of treatment specified by the Minister for Health and Children". This would allow for detention in places other than the Central Mental Hospital, a facility which may not be suitable for all detainees. For example, a number of the "fitness to be tried" proceedings are currently being held in the District Court setting and, as such, are for summary and minor offences. It would be inappropriate in many of these cases to send someone to the Central Mental Hospital. I hope the Bill will be amended to offer the courts an alternative.

These are sensible and reasonable amendments. I am confident that if the Minister of State were to have his way, they would be taken on board. As Deputy Shatter observed, it is frustrating for Opposition Members when reasonable proposals from this side of the House which would not involve a cost for the State and which would make life better for particular sectors of society are rejected purely on the basis that they did not come from the Minister or Minister of State.

This Bill, the 2006 Bill and the review of the latter offer, above all else, the prospect of a new tolerance in regard to mental health. They point the way in terms of ensuring that people now know that recovery is possible. That is vitally important but was not always the case. When I was growing up there was a general acceptance that there was no possibility of recovery from mental health problems, and depending on the particular psychosis or condition, there was indeed a great likelihood that one would never recover. We have come a long way since then in terms of treatments and in terms of our attitude towards mental health.

It is the absence of hope that drives us to despair, and this Bill is, more than anything else, about hope for those who previously had none. Deputy Shatter remarked that the Joint Committee on Health and Children spoke to the families of many of those detained in the Central Mental Hospital to ascertain their view on the proposed move to Thornton Hall. I realised in the course of these discussions that our attitude to and perception of people with mental illness and those who surround them is very flawed. These were ordinary families whose hopes and aspirations for their loved ones are that they will return home and have a life like everybody else. Those people will take great hope and comfort from this Bill.

The people about whom we are talking are those who have experienced the most severe and traumatic mental health episodes. However, they are in some degree the lucky ones because we are putting in place legislation which will ensure their situation is progressed. We all know of people who have mental health issues but do not have that type of path to recovery. We should be conscious of them.

We should also bear in mind that just as we members of the committee had a distorted view of people who are detained in mental health facilities for their own protection, so too do members of the public have concerns about the provisions of this Bill. We must trust the professionals in this case. I have no doubt that things will go wrong as they always do. However, in the main, more things go right than go wrong. We must be far more tolerant and we must accept there are episodes in people's lives when they do awful things. However, with the right type of treatment they can recover. That is what it is all about.

I wish the Minister of State well with the Bill. I hope he and his Department will take on board the amendments the Labour Party has offered in the spirit in which they are offered. The objective is to bring us forward in terms of the provision of mental health services.

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