Brian Lenihan Jnr (Dublin West, Fianna Fail)

These amendments have been grouped together as they relate generally to the definition of the term "mental disorder" set out in section 1 of the Bill. On Committee and Report Stages of the debate on the definition of "mental disorder", amendments to provide for a definition of what precisely was covered by the term "intoxication" were tabled by Deputy Gerard Murphy on behalf of Fine Gael. Deputy Costello also tabled an amendment on the point on Report Stage. Their principal concern was to ensure the term "intoxication" embraced all intoxicants and not only alcohol. The Minister explained that "intoxicant" in law does not only mean alcohol but he undertook nevertheless to consider whether a specific definition should be inserted in the Bill. This was done by means of amendment No. 2 on the list before the House.

The Minister would like to acknowledge that Senator Terry also tabled an amendment on Committee Stage in this House on 7 April 2004 which is in very similar terms to the Minister's amendment which is drawn from the Criminal Justice (Public Order) Act 1994. At that time, the Minister thought it was better to leave the term undefined and Senator Terry withdrew her amendment. It only goes to show that persistence with this Minister can, on occasion, pay off and he wishes to formally acknowledge Senator Terry's perspicacity in this regard.

The Minister in his response to this amendment referred to the report of the Law Reform Commission on intoxication published in November 1995. Senators might be interested to know that the commission states that the definition of "intoxication" or "intoxicant", in the sense that either term involves the consumption of drugs as well as of alcohol, does not appear to have given rise to difficulty in any jurisdiction, including our own, studied by it in the course of its work nor was it raised as an issue by any of the experts who met the commission. In practice, intoxication is not accepted as a defence in Irish courts and the commission goes on to point out that, if anything, it has been found to be an aggravating factor.

The definition of "mental disorder" was constructed from the outset on the basis that there was no need to spell out that, in strictly legal terms, "intoxication" does not only mean a state of intoxication stemming from the consumption of alcohol.

On amendment No. 4, speaking generally for a moment, Senators will be aware there was much debate in this House and in the Dáil about the terminology and language used in the Bill and the Minister's position on the definition of "mental disorder" used in section 1, and the need to keep this separate from the definition of "mental disorder" in the 2001 Act. This reflects the basic policy underlying the Bill in this area that the ultimate resolution of the issue of mental disorder in the context of insanity in the course of criminal proceedings is one of law and not medicine. I am happy to state that one of the sternest critics of this approach, the Mental Health Commission, has now indicated that it accepts the need for this variation. It notes that the definition of "mental disorder" used in the Bill is identical to that used in the definition in the Mental Health Act 2001 when referring to issues of treatment. It accepts that the Bill uses a different definition when the matter is being considered during court proceedings.

However, on Committee Stage in the Dáil, the Minister said he would look again at one element of the definition of "mental disorder" in section 1 which referred to "mental handicap". The Minister believed the term "mental handicap" was not as pejorative a term as some might consider. Neither did he believe it was an exclusionary term. However, he agreed to the change proposed by Deputy Costello which was supported strongly by other Deputies and thus the appropriate reference now will be to "mental disability" instead of "mental handicap".