John Moloney (Laois-Offaly, Fianna Fail)

This is possibly my second last time to speak on the issue of mental health. I hope to get an opportunity to speak on the introduction of the mental capacity Bill. It has been a pleasure listening to and debating reform of mental health services with Deputies Lynch and Neville during the past two and a half years. I will give my response to the amendment later.

I recall on an early occasion Deputy Neville making the point that there are no votes in mental health and that is where the difficulty lies. It is not an issue on the doorsteps when we are canvassing. I regret I was unable to, as requested during Committee Stage some weeks ago by Deputies Neville and Lynch, seize the moment and accept the change to the Bill. While I was tempted to do so, clear advice was that I could not.

This Bill is legislation to enable people to have recourse as quickly as possible. There are wider issues to be dealt with. I recall Deputy Shatter saying that while Fianna Fáil has been in government for the past 15 years, it has not done much up to now. However, there has been a change in thinking on this issue and regardless of what party will next be in government, this item will be on the agenda. This issue has been highlighted in the major review promised. Changing attitudes to mental health is a huge challenge. I compliment those who have been trying to do so for years. I acknowledge the See Change campaign which seeks to change peoples' notions. I have also stated publicly that there is no big deal in terms of mental health illness and in this regard spoke about my own private issue. If we want to change attitudes, we must take a lead role in this regard. I do not blame the media but a concerted attempt has been made by us all to change attitudes nationally through See Change. The launch of the campaign in the Mansion House generated little interest. People who are used to pushing the boat out retained their interest to drive the campaign, the media's interest was disappointing. When I returned from a See Change campaign meeting in Donegal, I bought a copy of The Irish Times. I was startled to read in an editorial that See Change was regarded as nothing less than a cynical pretence on behalf of the Government. I always open public meetings by saying there are two issues - the capital programme and the need for additional finance for mental health services. I always say I am present as a Fianna Fáil Deputy taking full responsibility for the need for further resources but I always highlight that the stigma issue is separate because all the funding in the world means nothing if people are reluctant to present for support.

I acknowledge reference to changing attitudes sounds hollow. I am the Minister responsible and the question can rightly be posed: Why can I not do that? I ask Members to bear with me. On Second Stage, I explained that the purpose of the Bill is to deal with two issues that have arisen in the operation of the 2006 Act, which require urgent attention. I took the opportunity to seek the co-operation of the House and I thank Members for confining amendments to strictly what was necessary to achieve that purpose. I also explained that the other issues were being tabled for examination in the context of the major review of the 2006 Act planned to commence following the enactment of this legislation. This is a serious commitment for whoever who takes up my seat and it will be followed up on to take into account the need to move from the language issue and the connotations involved.

I understand why the amendments have been tabled and I have sympathy for them because these issues have been raised on the floor of the See Change meetings throughout the country. People talk about the notion of the tags that attach and the fact that when they apply for a mortgage or a loan, they are asked for their medical history and are reluctant to divulge details lest it might create a difficulty for them. I accept the spirit of the amendments and I should say I will go with that but there are implications for criminal law. I do not hang my coat out to say that.

I have sought and received the agreement of the Minister for Justice and Law Reform that this issue will be examined in the context of the planned review. "Examined" might be a loose word but it will be considered in the context of how the legal implications can be removed. The rejection of the amendments must, therefore, be seen for what it is; it is a deferral of the matter for consideration in a more suitable context and I ask the Deputies to accept that. I hope they can appreciate this because this will allow us to examine this issue in the context of the 2006 Act as a whole and to ensure that suitable consideration is given to the legal issues involved before we move to accept a change to the terminology, which has a long-standing meaning in criminal law. These are complex issues associated with replacing the term "insanity". The provisions relating to the specific verdict of not guilty by reason of insanity under section 5 of the 2006 Act were drafted on the basis of the decided judicial authority on the precise circumstances in which persons with mental illness would be excused from criminal liability.

Some of us had been under the impression that the word "insanity" is defined in the 2006 Act but this is not the case. Section 5(1)(b) provides for the special verdict of not guilty by reason of insanity and the requirements of this verdict are not only that the accused person is suffering a type of mental illness but also the mental disorder is such that he or she ought not to be held responsible for the act alleged by the person for the reason that he or she did not know the nature and quality of the act or did not know what he or she was doing or he or she was unable to refrain from committing that act.

The issue for the court is fundamentally one of legal responsibility and that is where my difficulty lies. If there was no legal implication whatsoever, we would go with the amendments because it would give a sense to the notion of removing the stigma. The plea of insanity in law is an excuse rather than a condition. It is a factor that excuses liability from the commission of a crime. Our law places the matter firmly within legal parameters directly related to personal responsibility for one's actions. In this scenario, medical evidence is influential but not decisive and this means that an accused person who has been diagnosed as suffering from a mental disorder in the medical sense may fail to satisfy the criteria for insanity under the criminal law. I must rely on this advice because this has implications.

We have to be careful we do not let a situation develop where a jury would arrive at a view that any mental disorder, regardless of how trivial it may be, could provide grounds for acquittal. The 2006 Act laid down a high threshold and we have to be careful that substituting the word "insanity" with "mental disorder", for instance, would not send a signal that the threshold is being significantly lowered. Criminal law is the main focus of this Act. It could be misleading to change the title to refer to "mental disorder", the term primarily used to decide if a person is in need of care and treatment in a psychiatric hospital and which is the primary focus of the Mental Health Act 2001. While an aspect of that is a focus of the 2006 Act, it is not the primary focus. We, therefore, have to be careful not to introduce any doubt or uncertainty.

I assure the House the name changing issue is firmly on the agenda but I cannot be any stronger than that. I fully accept what the Deputies said and I fully support the case they have made but because of the legal implications, I cannot give the nod to the amendments. I would dearly love to be the Minister of State who makes the change but I cannot do so on the basis of the advice I have.

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