Michael McDowell (Dublin South East, Progressive Democrats)

I appreciate the reasoning behind Senator Henry's amendment which proposes the alignment of mental disorder for the purpose of this Bill with that of the Mental Health Act 2001. Although this issue has been the subject of much public debate, I profoundly disagree with the proposition that there should be an alignment. It would not be helpful, constructive or enlightening. I hope that does not sound too pugnacious but I do not believe there should be an alignment between the two.

The Mental Health Act 2001 has a particular purpose, which is to govern the circumstances in which people can or cannot be, among other things, admitted to psychiatric institutions against their wishes and so on — involuntary detention — and to set a framework for the treatment of patients with mental illnesses. The Criminal Law (Insanity) Bill 2002 has a different purpose — to establish a workable template for decisions by courts that people are to be excused criminal responsibility in certain circumstances and to deal with other issues such as inability to plead and so on.

I do not believe, even on a first principle basis, that there should be an alignment between the two sets of underlying definitions for either statute. There is no necessity to align them. I do not believe — this is a particularly important point — that decisions in terms of involuntary admissions to hospitals and judicial decisions about the impropriety in that regard should have necessary spillover effects into the law of criminal responsibility. Likewise, I do not believe decisions in the criminal courts as to the meaning of a particular matter should have a spillover effect on the treatment of patients who have nothing to do with the criminal law. If one includes the same definition in both statutes and if a particular judge in a criminal trial states his definition of what the law means, if that is a matter of decided law, then the spillover effect, in terms of mental treatment, will be that what a criminal law judge decided in a particular case about the meaning of a particular definition is the law of the land and vice versa. This is not some thought that has occurred to me at random, because the issue of whether the two Acts should be made to coincide in their definitional basis — I hope that I am not being misleading — was one of questions which held up this legislation for so long. There was great interplay between the Department of Health and Children, the Department of Justice, Equality and Law Reform, the Office of the Attorney General and the Cabinet for a very long time. We must ask ourselves whether we should handcuff the two Acts together so that a decision made in a criminal trial interpreting the definition of mental disorder is a decision on the self-same words which will apply regarding future civil law decisions on whether a person should be detained against his or her wishes in a mental hospital. That is a fundamental question for us to address.

Senator Tuffy asked whether we had been unmindful of what the College of Psychiatrists had said; we have not. However, we ask ourselves why the definition should be the same for the two purposes if the consequence is that decisions made in a criminal case thereafter affect the administration of civil law regarding the treatment and detention of patients in cases that have nothing to do with criminal behaviour. I will not dismiss the argument, but it is by no means clear to me that it is desirable to do so. There are many reasons in my mind that make it undesirable to marry the two concepts so closely that a decision in one area necessarily means a collateral decision for the other purpose and that a judge, in charging a jury on the meaning of this section of this Act, is handing down an authoritative decision to bind the psychiatric profession regarding the involuntary detention of people under mental treatment law. From that point of view, perhaps I might put it like this without being unduly pugnacious, why would one consciously set out to procure a situation whereby a decision in the context of criminal law had those consequences for the day-to-day administration of the civil law of mental health? Why would one want to do that? Why would one want a judge contemplating whether an individual had had his or her mental state properly dealt with under the Mental Treatment Act 1961 to make a decision that would spill over into criminal law?

Let us consider section 3 of the Mental Health Act 2001. I fully concede, as Senators Maurice Hayes and Henry have said, that this House spent a great deal of time thinking about those issues, and I pay tribute to it. The definition which the two Houses of the Oireachtas produced is:

3.—(1) In this Act "mental disorder" means mental illness, severe dementia or significant intellectual disability where——

(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons

Does that mean that, for criminal law purposes, that if a psychiatrist says on oath that he or she does not believe there was a serious likelihood of self-damage or damage to others the day before yesterday, a person cannot invoke the defence provided by the legislation that we are discussing today?

The second definition of mental disorder reads:

(b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.

How would it be relevant to the question of whether one was criminally responsible if one ought to have been admitted to a psychiatric institution, a psychiatrist who had carefully examined one ought to have arrived at that view or if doing so ought to have alleviated the condition from which one was suffering? Does that definition give any ease to the accused? That carefully worked-out definition is clearly designed to regulate involuntary admissions, but is it the test one really wants to lay down for someone in the dock who is pleading that mental disorder has diminished his or her sense of responsibility? It must fit into either (a) or (b), the first being that there is a serious likelihood of one's causing harm. Criminal law is not concerned with whether there was a serious likelihood but with the question of whether, in retrospect, harm was caused. It was entirely improbable that a mental condition should have led to this, but it did so. In other words, if one commits a crime and it was entirely improbable that one should have done so, does paragraph (a) come to one's assistance? If one is then driven back to paragraph (b) of the definition, which states that one's condition should be such as to justify one's reception in a mental institution of some kind and do one some good, is that something the accused wants to have set as a test for his or her lawyers to overcome in establishing that the particular act of which the person is accused amounted to one that arose from mental disorder?

Looking carefully at section 3 of the Mental Health Act 2001, one sees that it is crafted for a different purpose — that of taking protective decisions about people in circumstances fine-tuned to respecting their rights. People cannot be put into mental institutions if, for example, under paragraph (b), it would do them no good. One cannot simply incarcerate someone, not under that paragraph at any rate. Paragraph (a) is to do with self-harm and harm to others, but (b) is a matter of whether therapy would have a beneficial effect. That is frankly irrelevant to whether one should be convicted or acquitted on the grounds of one's mental state.

I therefore believe that the long process — it took approximately ten years — of debate between the two Departments on whether they should harness those two horses to the same definitional wagon was correct in deciding that there should be no coincidence. One can see that there are at least two sides to the argument. Does one want the criteria that judge one's admission to a mental hospital against one's wishes, with which section 3 is concerned, to be the self-same criteria which determine whether one should be acquitted? Crafted as they are, their purpose is to safeguard the rights of individuals and to ensure that unnecessary committals do not take place. I have endless admiration for this definition in the Mental Health Act 2001, that people's rights could not be abrogated and they could not be confined to mental institutions unless there was a serious likelihood they would damage themselves or others; or alternatively, they were suffering from a disease or condition of the mind which required them to be hospitalised and where the hospitalisation would do some good.

I do not believe that is a set of criteria by which the criminal law should be administered. Neither do I believe that these issues — it is perfectly reasonable that they should arise in the context of an involuntary admission and other purposes — should gauge whether people may be judged guilty or innocent on the ground of mental disorder or whatever. It would be a mistake to harness these two concepts together because this could give rise to a situation where a decision made in a criminal court as to the joint definition of the term "mental disorder" or whatever, which is common to two statutes, would have a spillover effect. Some judge considering whether a person should or should not be admitted against his or her wishes to a mental institution would come to findings as to the meaning of the definition under the Mental Health Act 2001, which would have serious implications for the administration of the criminal law on insanity, as it is termed, and vice versa.

A judge, some afternoon in the Four Courts in the middle of a criminal trial, would come to a reasoned analysis of the definition, which was put there for a different purpose and say, "It means X and it does not mean Y," in circumstances where psychiatrists would query why he or she had opted for that particular definition and say in effect: "This is wholly unsuitable for our case and for our purposes and for admitting people to hospitals." They would claim the judge's decision was not in accordance with best psychiatric practice for that purpose.

In short, I do not see why the two should be brought together because they are different concepts. One is a definition of mental disorder which is calibrated and circumscribed and stated in terms to do with the efficacy of mental health treatment, on the one hand, or, on the other, preservation from self-harm or harm to others. A simple example would be some kind of kleptomania condition. Paragraph (a) is no use because "harm to others" does not arise; and paragraph (b) may or may not be of some significance because I do not know whether involuntary hospitalisation would or would not benefit a confirmed kleptomaniac, pyromaniac. or whatever. There are other issues too, such as hypoglycaemia and things like that, which might have nothing to do with all of this — paragraphs (a) and (b) may be no help at all — but which could be relevant to a criminal law case.

I have a strong view on this matter. I heard all the debate and I did not ignore it. I saw all the comments in The Irish Times and elsewhere and I got the letters from the colleges of psychiatrists, etc, but I remain unconvinced. We are talking about the view that two definitions should be aligned and made co-terminous so that they are the same for two different purposes. I remain unconvinced that this is a good idea. Others may disagree. One of the great aspects of legislation, something to which we all owe a duty as legislators, is not to have unintended consequences. One should avoid taking a decision in Seanad Éireann which later has trickle-down effects and which may prompt the question at some stage as to why it was done. I would argue that it was perfectly reasonable to craft the Mental Health Act 2001 in the way it was done. However, it is perfectly reasonable not to follow that definition for the purposes of criminal justice because it would risk making a mistake.

There is a division in the Dáil, but I will continue until somebody tells me the Government is going to collapse, or something.

On the issue of personality disorder, as mentioned by Senator Tuffy, it is clear in section 8(1) of the Mental Health Act 2001, which deals with mental disorder, that nothing shall be construed as authorising the involuntary admission to an approved centre by reason of the fact that the person is suffering from a personality disorder. It may or may not be that this is a tacit admission that mental disorder could include a personality disorder and, therefore, section 8 was necessary to take it out of that realm. Alternatively, the whole Act could be read as stating mental disorder under the 2001 Act was not intended to cover personality disorder.

We have crafted this legislation so as not to close the door and slam it in the face of personality disorder, in the way that section 8 of the other statute seems to do, for some purposes at any rate. The policy underpinning this Bill is quite deliberate. We heard all the criticisms and the points that were made. However, the policy effectively dictates that in the specific context of the Bill as a criminal law measure, the definition of the term "mental disorder" must, first and foremost, be framed against the existing position in common law. I am not prepared to move outside that framework. That is why the Bill does not propose to align the two definitions.

No singular or uniform solution has been found and adopted in the various common law countries on this issue, including those with which Ireland is closely connected. Our law firmly puts the matter within legal parameters and directly related to personal responsibility for one's actions. In this scenario medical evidence will be influential, but it is not decisive. That means that an accused person diagnosed as medically insane may fail to satisfy the criteria for legal insanity under criminal law and vice versa.. The Bill is designed to deal primarily with the criminal law aspect of the issue, once that aspect has been determined by the court, with the question of care and treatment.

I fully accept that a person may be incarcerated in a mental health institution on the basis of two different tests. However, it is not the end of the world if someone ends up in the same place by two different routes. To unify the routes, in terms of their intellectual content, would be fraught with difficulty. The matter is also complicated by the fact that legal and medical definitions which apply are not co-extensive. As I said on Second Stage, care was taken in the drafting of the Bill to ensure those matters were taken into account.

Particular attention was given to the fact that there is an overlap between the criminal justice elements and the Bill reflects the need to have regard to the care and treatment aspects of mental health legislation, in particular those matters which a court might take into account when considering the options available to it at the sentencing stage. That will arise following a determination by a court of a person's fitness to be tried, or a verdict of not guilty by reason of insanity. The determination will be based on the definition of mental disorder set out in this Bill. In other words, as a threshold test, a person must at least be suffering from a mental disorder as defined in section 1 of the Bill, meaning mental illness, mental handicap, dementia or any disease of the mind. However, for the special verdict under section 4 of the Bill, that mental disorder must additionally be defined as in section 4(1)(b) by the use of the words "the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of" etc. That appropriately emphasises the fact that the issue for the court is fundamentally one of legal responsibility, rather than simply a psychiatric diagnosis. The three limbs of the test, which are mutually exclusive, restate what the current text is in this jurisdiction.

Regarding amendment No. 3, the definition of mental disorder contained in the Bill is of fundamental importance and is tightly worded. To amend it as suggested would introduce uncertainty into an area where there can be no room for doubt. A reference to "any other disease or medical condition" is much too vague and would allow arguments to be made which would widen the scope of the defence. I am not anxious to allow that and I am opposed to amendment No. 4 because it is unnecessary.

Amendments Nos. 135 and 136 propose to change the reference to "insanity" to "mental disorder" in both the Long and Short Titles of the Bill. I do not want to accept those amendments because corresponding changes would have to be made in the terminology throughout the Bill. I know that Senator Henry has raised the reference only in two instances. The change would be undesirable, however, because regarding the use of the less pejorative terminology, insanity is an outdated term, perhaps a little severe and slightly Victorian in concept. Terms of art with regard to psychiatry change over time. Most of the 19th century and early 20th century statute law uses terms with which we would now be slightly uneasy, such as idiocy, lunacy and feeblemindedness, which meant something at the time but now are a little out of kilter with modern terminology. Such terms were the best people could find in those days and were not meant as terms of dismissal. They were the common terms in the old medical textbooks, as Senator Henry will no doubt agree.

We do not want a situation in which juries would arrive at the view that any mental disorder, regardless of how trivial, would provide grounds for acquittal. The Bill creates a high threshold. Whatever the term "insanity" might convey and connote to psychiatrists and sociologists, to the ordinary man and woman in the street it suggests that the person in question was insane when the offence was committed. A definition of what that means is then given. It means that it is not something trivial. The word "insanity" denotes a category of disorder which is far from trivial, minor or incidental. One would hesitate before finding someone "insane". It is a threshold which has a degree of seriousness attached to it. It also carries some solemnity, so that a jury will not simply imagine that the person in question was a little upset on the day, or inclined to fly off the handle, or had a short temper, or suffered from some sort of low-grade personality disorder.

A high threshold is being set for excusing someone of criminal responsibility for his or her acts. One is saying that most people in a liberal society, however quirky or multifaceted or egregious their personalities might be, are presumed by the law to be morally and intellectually responsible. They are allowed to vote, to get married and to do a great many things. If they stand in court and ask a jury to excuse them from responsibility for their acts, they must undertake a high threshold of proof of insanity and not merely raise a doubt as to the oddity of their character or the flakiness of their personalities.

Language is always imprecise and doubtless in 20, 30 or 40 years' time someone will look back at this debate with mirth and say that my defence of the term "insanity" was a piece of early 21st century folly. To change the word "insanity" to "mental disorder" would send a signal that thresholds were being significantly lowered. We live in a liberal society and should strongly rely on the presumption that although people differ greatly in their psychological and psychiatric constitutions, with some people having very turbulent constitutions, the circumstances in which they will be excused criminal liability are ones for which a threshold of seriousness and gravity must be passed before a decision to acquit is made.

It is that decision with which we are now dealing. We are talking about a verdict of "not guilty by reason of insanity". We are establishing a high threshold and not inviting juries to adopt a sympathetic mode and wonder if a person should be punished at all. We are saying that people in our society must bear criminal responsibility unless they suffer from a mental disorder which satisfies the high threshold set by the statute and with which the public thereafter can be comfortable. It is very important that the public does not see psychiatry as providing a "get out of jail free" card for people in circumstances where public confidence in the administration of justice would be adversely affected.

With regard to section 4(1)(b), the point is not merely that one might be suffering from a disorder, but that "the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she (i) did not know the nature and quality of the act, or (ii) did not know what he or she was doing was wrong, or (iii) was unable to refrain from committing the act." Those are high threshold tests which must be overcome in order to disestablish the presumption of criminal responsibility in an adult person. I do not want to be party to a dilution of criminal responsibility not because of conservatism, but because the dignity of the individual, and the public attitude to such issues, are centred on a presumption that however diverse people's personalities are, people must be respected as free moral agents in a society and should not be excused from a responsibility unless there is a clear case made that because of their mental disorder at the time, they fell below a fairly exacting threshold.