Brian Lenihan Jnr (Dublin West, Fianna Fail)

The purpose of amendment No. 2 tabled by the Independent Senators concerning the Long Title of the Bill and the related amendments is to provide that the body carrying out regular reviews of cases involving the detention of persons found not guilty by reason of insanity or unfit to be tried in designated centres, including the Central Mental Hospital, should be the Mental Health Commission, established in accordance with Part 3 of the Mental Health Act 2001. It is Senator Henry's wish that the Mental Health Commission should be the review body for the purposes of this Act. However, the Bill reflects Government policy on the matter and proposes a separate, independent body, namely, the mental health criminal law review board, for this purpose. The details of this new body are set out in Schedule 1 of the Bill. There are many related amendments on this matter, numbering 55 in total, but most of these are of a technical nature. They merely change the title from the "review board" as proposed in the Bill to the "commission" as set up by the Health Act 2001.

The purpose of the four official amendments tabled by the Minister for Justice, Equality and Law Reform, is to insert "Criminal Law" into the title of the new body to assist in distinguishing it from the Mental Health Commission operating under the Health Act 2001 and to provide for the Irish version of the board's name.

The Minister for Justice, Equality and Law Reform stated on Committee Stage that he was receptive to the proposition that a more distinctive title be given to the new body so there would be no confusion between it and the mental health tribunals and the Mental Health Commission, which perform functions under the existing mental health legislation. He has, therefore, tabled the relevant official amendments, which provide for the new body to be called the mental health criminal law review board. The appropriate name of the new body will also be provided in Irish. This will necessitate an amendment to the Long Title of the Bill, as provided by amendment No. 3 and to the relevant definition in section 1, as provided for in amendment No. 8. Amendment No. 52 makes the necessary change to section 10 of the Bill and amendment No. 51 provides for an Irish title. A separate amendment to section 18, to be dealt with later, is a technical amendment designed to change the reference from "the commission" to "the board". It has been brought to my attention that we have not made a corresponding change in the title of the new body in Schedule 1 of the Bill. If the House has no objection, we will revisit that matter when we deal with amendment No. 153.

A detailed discussion took place on Committee Stage on the matter raised by Senator Henry's amendment. The Minister for Justice, Equality and Law Reform has not changed his views on the issue. The mental health tribunal, or tribunals, to be established by the commission in accordance with the Mental Health Act 2001, have specific functions and responsibilities under that legislation. The new mental health criminal law review board, to be established in accordance with the provisions of section 10 of this Bill, will have as its main function the regular review of the detention of persons found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by an order of the court and, most important, deciding on the release of such persons back into the community.

Human rights considerations are involved and the matter has become more acute now that the Convention on Human Rights has been incorporated into our domestic law by the provisions of the European Convention on Human Rights Act 2003. The Government decided that in order to comply with its obligations under the convention, a separate and distinct body must be established for these purposes, to take a proactive role in the review of persons under its aegis and to review their cases on its own initiative. The task of the new body will be a solemn business, which must command public respect and confidence, as it is almost certain that every decision will be subjected to intense public scrutiny, especially as the review board will have the power to decide on the release of persons back into the community. The body making such decisions should not be involved in day-to-day assessments of appeals by patients against their treatment or the manner in which they were committed to mental institutions under civil legislation. The Minister believes there is a sound basis for keeping the business of the two bodies separate and therefore, following on from this conviction, the Government cannot accept the amendment.