Denis O'Donovan (Fianna Fail)

I welcome the Minister of State to the House and compliment him on the significant and magnificent work he is doing in the area of mental health. I support the Bill. The Minister of State through his portfolio has taken brave and strident steps in the area of mental health, in particular through the programme, A Vision for Change, which is magnificent and bold. All manner of road blocks have for decades, if not a century, been put in the way of changes in legislation and the attitude of the Irish psyche in regard to mental health. When I was studying law, some of the legislation in the area of mental health was based on the Victorian age. We have come a long way since then.

I understand from the Minister of State, having spoken recently to him about the important psychiatric wing at Bantry General Hospital, that he hopes to announce publicly in the Dáil his programme in regard to A Vision for Change. I await with awe this brave and bold programme. What the Minister of State is setting out to achieve is what many experts, psychologists, psychiatrists and legal experts have been talking about for the past 30 to 50 years. I wish him well with his programme. I have no doubt the current Government is committed to supporting this programme financially. Although the Minister of State may be criticised about the changes introduced in this area, the end will justify the means. The Minister of State has publicly pronounced that the Taoiseach and Cabinet are committed to providing financial support for his programme which will be effected during the next number of years. This is a major step for the Minister of State. It would be remiss of me not to acknowledge and compliment the Minister of State's work in this area which has been single-handed from a political point of view

While we sometimes lock horns politically, I welcome the positive remarks made by my colleague, Senator Regan, in broadly supporting the Bill. The legislation deals with two distinct and unrelated areas. It substantially alters the fitness to be tried mechanism introduced by the Criminal Law (Insanity) Act 2006, which was a bold step on the part of the previous Government, and it addresses a legislative lacuna identified by the Mental Health (Criminal Law) Review Board through a series of High Court cases. These are problems which could not have been envisaged. It is important the Minister of State and Legislature recognise particular decisions made in the higher courts of this land.

In this regard, the Bill provides that the board can impose binding conditions on patients it proposes to release on conditional discharge from the Central Mental Hospital in Dundrum.

There is no doubt there are a number of patients in the Central Mental Hospital who could be released conditionally if assessed by the director of mental health or a top-level clinician. We are always talking about beds in various hospitals. In that context, the freeing up of six or ten beds in the Central Mental Hospital would be a major step, as it would allow people on a waiting list perhaps to gain access. That would be a critical step and one that must be lauded. However, I add a rider that any such patients should only be released after the most stringent examination by the top clinicians in the hospital and on condition they would not become involved with drugs or alcohol. They might have to follow a programme of diligence such as that provided by Alcoholics Anonymous or a drug rehabilitation scheme. I am satisfied the necessary steps would be taken in that regard.

The Bill deals with the substantial issue of a person's fitness to be tried. In certain high profile cases, including murder cases, somebody might be deemed to be unfit by the court to be tried on the grounds of mental incapacity or because of illness, being unable to have cognisance of or regard to what is happening in court.

The Bill also revisits the mechanism whereby individuals who have been found not guilty by reason of insanity or who are unfit to be tried are to be conditionally discharged. The Bill does not deal with persons who have been placed in psychiatric care through civilian mechanisms. It is important to note that it does not interfere with that particular provision. The principal themes of the Bill include improving the fitness to be tried mechanism to bring it into compliance with the European Convention on Human Rights, something which must be acknowledged and providing for the first time that discharge and post-release conditions imposed on persons by the Mental Health (Criminal Law) Review Board will be legally enforceable. These conditions will apply both to those who have been found unfit to stand trial and who have been found not guilty by reason of insanity.

Section 10 provides that the Bill shall take effect on such a day or days as appointed by the Minister for Justice, Equality and Law Reform. I trust that this will be sooner rather than later.

There is a plethora of other minor amendments made in the Bill. If it is appropriate, perhaps the Minister of State might give a flavour of the workings, including the successes and pitfalls, of the review board, a relatively new body, in which I have a particular interest. A political colleague of mine who is well known to the Minister has asked me to raise this point. Sometimes when such boards are established, there is a view that many of them are quangos. Unfortunately, the political system carries that historical baggage. I remind the House, however, that this is a most important board. Many of those serving on it are legal and health experts, including clinical psychologists and psychiatrists.

I am subject to the Minister of State's views but is there an obligation on the board, annually or bi-annually, to lay before the Houses of the Oireachtas a confidential report on its workings and how it deals with issues? Has this matter been considered and, if not, will it be examined in the future?

Common law presumes that, unless the contrary is proved, everybody above the age of capacity is sane and responsible for his or her actions. The idea of fitness to stand trial refers not to an individual's capacity at the time of the alleged offence, but rather to the state of mind that the law regards as adequate to permit a satisfactory level of participation in the trial process. It should be noted that fitness to stand trial is a mixed medico-legal term which extends to mental states that in some cases fall far short of commonly accepted notions of normality. It is important to note the difference. In a criminal trial the concept distinguishes between the accused's state of mind at the time of the criminal act - be it rape, murder or manslaughter - and his or her mental capacity a year or two later when facing trial. As these can often alter or deteriorate, the distinction should be noted.

Section 4 of the 2006 Act contains a non-exhaustive list of factors to be considered when the fitness to stand trial of an individual is in question. It includes whether the individual is precluded by reason of mental disorder from pleading to the charge, in other words, does he or she understand and can he or she plead guilty or not guilty in answer to the question inevitably put to the accused? In addition, is the individual capable of instructing a legal representative? That is, obviously, a major shortcoming in the 2006 Act. In the case of an indictable offence which may be tried summarily, can the individual elect for trial by jury? We take a lot of this for granted, but it is very important.

Historically, in some instances, great prudence was not taken by trial judges in dealing with mentally ill persons. This was the case in directing a person who might have committed a heinous crime but who to the lay person might have appeared capable with full mens rea. However, a medical expert might not have been in a position to decide whether the accused wanted to be tried by judge and jury or to plead guilty or not guilty. In the past 20 years the courts have become more wary of becoming engaged in determining an accused person's mental fitness.

It is unusual that less than four years after the 2006 Act became law, the House is considering amendments to it, albeit valid ones. The catalysts for the two major amendments proposed are High Court decisions, to which we must have regard.

Section 4 of the 2006 Act also deals with determining the mental character of an accused person who, in the case of a trial by jury, may wish to challenge a proposed juror to whom he or she objects. Unfortunately, this happens too regularly in some serious, high profile criminal trials. If a proposed juror dresses in or looks the wrong way, he or she can be challenged by subtle and able people. The other point made about the Act concerns the understanding of evidence, which is also important.

The Bill must be welcomed. It is sensible. The Minister of State said the Minister for Justice, Equality and Law Reform intends to introduce substantive legislation in the area of criminal law dealing with mental illness and insanity, which is welcome. I admire the tremendous strides the Minister of State has made in this area. He represents a breath of fresh air to his Department. I wish him ongoing success. I have no doubt that between now and the general election in June 2012, which will not be long coming, he will have concluded many of his plans and they will have been implemented.