Michael McDowell (Dublin South East, Progressive Democrats)

They are equally serious issues but public confidence in the law must be maintained. If an individual is acquitted by reason of insanity, the public must know if it is appropriate for that person to be released. Until now, it has been my unhappy chalice to make a decision as to whether the individual should go free from the Central Mental Hospital on the basis that he is cured. When he signs his decision on the file, the Minister for Justice, Equality and Law Reform knows, in the back of his mind, that he will not be easily forgiven by the public, the relatives of the deceased and, possibly, the relatives of a second victim if he makes a mistake and his decision turns out to have been wrong. It is a matter of huge gravity. If we remove that power from the Minister, as a member of the Executive, and confer it on another body, we must do so very solemnly. We must retain public confidence in decisions.

Senator Henry knows — she could write the script — what will happen if the body makes an incorrect decision, if a repeat offence takes place as it has on previous occasions or if people are released in circumstances that give rise to controversy. One can imagine the reactions of the relatives of the victims of the first and second offences, just as one can imagine what the media would make of it all. Such thoughts enter my head from time to time when I sign one of these orders. I wonder if I am getting it right, if I can be sure and if I will be willing a day later to stand over the decision as absolutely right.

A specialised board is being established, with the solemnity and formality that attaches to it, to deal with such decisions. That is not quite the same as somebody complaining that they have been wrongly committed to a mental institution against their wishes on flimsy or inadequate grounds, that psychiatrists have made the wrong decision about them and that they are entitled to go free. It is a question of public perception. Regardless of the individual ingredients of the decision, the people's confidence in the system will have to be fully maintained.

I accept the point made by Senator Henry. A psychiatrist who is deciding whether somebody should be committed, or whether somebody's committal should be continued, is making decisions of equal gravity, in theory and in fact. I accept that if the person is released onto the street, he or she might do something terrible. There may be an original set of victims, but the potential exists for a second set of victims. I refer to persons who have been excused criminal liability for what would otherwise have been a very grave crime, most likely homicide. One must be certain that the decision-making mechanism one puts in place in such circumstances is independent of the Executive. Those making decisions should not have to spend many days assessing run-of-the-mill appeals by mental patients against the way they are being treated or the way they were committed.

This solemn business must command public respect and confidence because every decision will be subjected to very grave public scrutiny. The public never hears — thank God — about the vast majority of people who are committed to mental institutions or mental hospitals. People have no idea that such people have been committed and do not know when they are coming out. There is little public scrutiny of the circumstances in which such people enter or leave institutions. The tribunals are important as part of the private protection of such people's rights, but it is basically a private matter.

The tribunal function under discussion is a public one, however. It will be subject to absolutely searing media scrutiny if anything goes wrong. The members of the tribunal will make decisions of the utmost gravity. Although such decisions may be taken in private, the members of the tribunal will be made publicly accountable for them, even if there is no subsequent misbehaviour. Even if the patient is fully cured and leaves the institution to live an exemplary life thereafter, some sections of the media will kick up an almighty fuss about the fact that he or she was released in the first place. They will demand that the decision be justified and stoke up public hostility to the decisions that were made. It is important, therefore, that there should be a dedicated separate body to make such decisions, in which the public should have significant levels of confidence. It should not just be called on to assess run-of-the-mill protests by patients with mental illness who feel they have been wrongly committed. Dealing with such protests will be the ordinary business of the mental health tribunals under the mental health legislation.