Brian Lenihan Jnr (Dublin West, Fianna Fail)

These amendments have been grouped together as they deal with amendments introduced by the Minister relating to the issue of whether persons deemed unfit to be tried because they are suffering from a mental disorder should be treated on an outpatient basis.

The Minister pointed out on Report Stage in the Dáil that as drafted, the provisions of section 3 could be regarded as not going far enough to give the courts discretion to deal with a person on the basis that the degree of mental illness might not be serious enough to warrant inpatient care or treatment at a designated centre. Generally speaking, the criminal justice system is concerned with protecting the public, punishing criminals and administering the law in a fair and just manner. The Garda, prosecutors and the courts should strive to conduct their business in a way that protects the rights, not only of the victims of crime but also of especially vulnerable persons, including those who are unfortunate enough to suffer from mental disorders.

An important consideration in this regard is that no one with a mental disorder should be inappropriately held in police custody, or in a prison. The Minister is aware of concern that people with mental illness are prosecuted and imprisoned, often for relatively minor offences and in the Dáil he referred to recent research made public last December, which was conducted for the Prison Service by the national forensic mental health service at the Central Mental Hospital.

The Henchy report, on which much of this Bill is based, referred to the need to ensure that persons who, under the existing law, would pass, at least in the first instance, into a prison or other place of detention, should go instead to a designated centre, to become a patient, rather than a prisoner, generally under the ultimate control of the courts. Section 3 was drafted with that objective clearly in mind.

The report, however, also envisaged that the courts would have the power, based on expert psychiatric opinion, that outpatient treatment and community care should be the primary consideration, so that only those whose condition required it would be detained for inpatient services. The Minister's amendments addressed that possibility by allowing a court to decide, on the basis of expert opinion, whether the person charged whose fitness to be tried is an issue, could be referred for treatment or care on an outpatient basis.

The commission wrote to the Minister on this point, suggesting that he should provide for this additional form of court diversion away from prisons and places of detention. Overall, the section, as amended, will bring Ireland more into line with the relevant 1991 UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. Principle 7.1 is particularly relevant as it states, "Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives." Principle 9.1 provides that "Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others." The amendments will meet concerns expressed by the Department of Health and Children concerning the implications of the Bill for the provision of mental health services.

Of course, such conclusions would only be reached by the court on the basis of evidence provided by an approved medical officer that the accused person is suitable for such outpatient treatment and the Minister has provided accordingly in each of these amendments. Additionally, provision is made for the court to "make such order as it thinks proper" regarding the attendance of the accused person for such outpatient treatment. It will therefore be open to the court to include in the order any conditions to be met by the person, which the court considers appropriate pending the making of any further order. The imposition of such conditions will ensure that all matters relating to the case will remain wholly within the jurisdiction of the court.

I draw the attention of Senators to the terms of the amendments which provide for the outpatient option at section 3(3)(b)(ii) and section 3(5)(c)(ii). References are made in the relevant subparagraphs that "the accused person is suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001)". The purpose of this provision is to ensure that in this context, the court will be able to consider the widest possible range of mental illnesses when it is considering the possibility of treatment or care in a designated centre on an outpatient basis.

The difference with the inpatient option is that by confining the definition in that regard to a "mental disorder (within the meaning of the Act of 2001)", the court will be considering only the more serious cases of mental illness which are not suitable for outpatient treatment or care. This is because "mental disorder", as the term is defined in section 3 of the 2001 Act, refers to the possibility of "the person concerned causing immediate and serious harm to himself or to other persons".

References are also made to "aggressive behavioural symptoms" or "seriously irresponsible conduct" in other parts of the definition. Clearly, in these cases the option of outpatient treatment or care should not be availed of and the relevant provisions have been drafted accordingly.

While on the subject of non-court disposal options, I also mention the provisions of section 12 of the Mental Health Act 2001, which have not yet been brought into force. This and subsequent sections in the Act deal with the powers of the Garda to take a person, believed to be suffering from a mental disorder as defined in section 3 of that Act, into custody and their subsequent referral and admission to an approved centre. The Minister has indicated that the provisions of section 12 of the 2001 Act should be commenced, now that the Mental Health Commission has been established. He will be in contact with the Minister for Health and Children in this respect. It is important that this considerable lacuna in our current arrangements is addressed. There may be a need to ensure that the Garda is fully trained in the operation of the new measures. The Minister will raise that issue with the Garda Commissioner.

Amendment No. 16 is a consequential amendment that arises from the amendments which provide that a court can refer a person for outpatient treatment. The reference to "committal", which was originally framed in the context of sending a person for inpatient care or treatment, is inappropriate in such circumstances.