Michael McDowell (Dublin South East, Progressive Democrats)

I wish to respond to a point made by Senator Henry. Given that it has been said that a different definition of "mental disorder" to that in the Mental Health Act 2001 is required for the purposes of the Bill, she rightly asks why a reference to the 2001 Act has been included in section 3(3). We are dealing with a slightly different situation here. Section 3 deals with the concept of fitness to be tried. It does not relate to guilt or innocence. If my fitness to be tried is an issue when I am brought before a District Court this afternoon, it is my fitness now — there and then, before the court — that is important. It does not relate to whether I shot my granny three months ago — it has nothing to do with that. A person may be fit to be tried even if it is certain in the minds of everybody in the court that he or she will be found not guilty by reason of insanity at the end of the case.

The issue of fitness to be tried relates to whether one is capable, at the time one is being tried, of participating in a meaningful way in the judicial process. The condition one was in when the alleged offence occurred does not matter. It is more important to determine whether one can understand the charge, give instructions to one's lawyers, make a proper defence, challenge a juror and understand the evidence. One's state when one is before the court to have one's fitness to be tried determined may not particularly relate to one's state six months or three years previously. Although one might have been suffering from chronic madness — or florid madness, to use an unusual term — when the crime was committed, one might have totally recovered. The exact opposite may also be the case — one might have been an absolutely ruthless killer, acting with premeditation and total sanity, but one might have thereafter become completely unfit to plead before a court. Anything could have happened with the passing of time. One may be unfit to plead because one may have suffered a serious mental illness, or a physical injurythat brought about mental disorder, in the interim.

Senator Maurice Hayes mentioned that section 3(3) states that if a court decides that one is unfit to plead, it can do certain things. By definition, the court does not decide whether a person is guilty or innocent of the original offence for which he or she was brought before it; it decides what to do with him or her now. The court can request that a person be committed to a psychiatric institution. If a judge states, without prejudicing the guilt or innocence of the person, that Michael McDowell should be committed to a psychiatric institution today, he or she has to ask if it would serve any purpose. The Department of Health and Children's representations have had an effect on the Bill in that regard. If I am a duine le Dia, or a person who is incapable of meaningfully participating in a criminal trial, it does not automatically follow that I should be placed in a psychiatric institution for treatment — it may be totally pointless and wrong to do so and could be a waste of everybody's time. If I stole a bottle of milk, as in Senator Henry's example, sending me to any psychiatric institution in the country might have absolutely no effect and I may be back at Baggot Street Bridge six or nine months later in exactly the same state of mind and unable to be helped by any psychiatrist.

Section 3(3)(b) states:

Subject to subsections (7) and (8), where in a case to which paragraph (a) relates [meaning somebody who is found to be unfit to plead] the Court determines that an accused person is unfit to be tried, that Court shall adjourn the proceedings until further order and may, if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to subsection 25(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, [and] commit him or her to a specified designated centre until an order is made under section 12.

The section deals with people who are incapable of participating in the process of a court case. Having heard the evidence of a doctor, and any other evidence that is available, that the person needs in-patient care, the judge may commit him to a specified institution. In those circumstances it is not inconsistent to borrow the definition set out in the 2001 Act because that definition is crafted to raise the question of whether the person is a danger to himself or somebody else or is suffering from some disease which cannot be dealt with unless the person is committed to an institution. It is an entirely reasonable basis on which to decide whether the person should be so treated. I do not share Senator Henry's opinion about the importation of the definition in the 2001 Act for this limited purpose. We are talking about a case in which somebody has not been convicted of anything. The judge may simply tell the person he is free to go or he may decide the person should not be allowed to leave the court by himself. The definition is entirely suitable for that purpose.

Subsection (8) is also important. It states:

Upon a determination having been made by the court that an accused person is unfit to be tried it may on application to it in that behalf allow evidence to be adduced before it as to whether or not the accused person committed the act alleged and if the court is satisfied that there is a reasonable doubt as to whether the accused committed the act alleged, it shall order the accused to be discharged.

This provision is included because there are cases — I have seen them myself — in which there is no question of the accused being fit to plead but it is abundantly clear that the prosecution case would not succeed anyway because, for example, the accuser is wholly unreliable or the person did not have the bottle of milk when he was apprehended. In those circumstances, rather than allowing the criminal charge to survive, it makes sense to admit that the case would have collapsed even if the person was Albert Einstein, and bring proceedings to an end. That is perfectly reasonable.

I am in no way hostile to psychiatrists or sociologists. They perform a useful function in the criminal justice system as well as in the general world of mental health. However, I do not want a situation in which every controversy in psychiatric medicine becomes a controversy in criminal law. I do not want to marry two systems which are cognate but not identical. I do not want to pretend there is no difference between the requirements of civil law and those of criminal law in the area of mental health. There is no inconsistency in that distinction.

We make distinctions such as this in many areas. We make many decisions on the basis of the balance of probabilities. In civil law, the decision of who is responsible for a car crash is made on the basis of probability. In criminal law, the same car crash may be considered — if there is a charge of dangerous driving or manslaughter — and decided on with reference to a different standard. The mere suspicion that someone is a sexual predator, if it is well grounded, would cause an educational establishment to refuse to employ that person. We apply different tests for different purposes because they are crafted with different outcomes in mind.

I do not see why we should attempt to establish a phoney uniformity or commonality of approach if we are trying to achieve very different outcomes. It does not mean we are treating a person suffering from a mental disorder as a second-class citizen. Different concepts are brought to bear on the question of whether a person should be committed to a psychiatric institution, for example, or found guilty of an offence.

For the purpose of criminal law, it is not adequate to specify that a person must be in danger of harming himself or others or suffering from a condition which would merit committal to a psychiatric institution provided the person would benefit from this. If I slash the Mona Lisa, it may not be relevant whether I am also a threat to the attendants in the Louvre. Whether I intend to harm myself or others is immaterial. Whether I would benefit from in-patient treatment is also irrelevant. When it comes to the question of whether I was suffering from a mental disorder when I did such a thing, those two criteria will be of no assistance to a jury in deciding whether I should be convicted. One could bring in 20 reputable psychiatrists to say they were absolutely satisfied that I was a gentle soul who would never harm myself or anybody else. They could also say with certainty that a long spell in a psychiatric institution would have no effect on whether I would ever do such a thing again. If the two parts of the definition in the 2001 Act were ruled irrelevant — as they would be in those circumstances — the question of whether I was suffering from a mental disorder when I committed the offence would be central. I am not being specious. I am trying to make the point as strongly as I can that we are talking about different things and we should not confuse them.