Feargal Quinn (Independent)

It seems a comparatively short time since the 2006 legislation on criminal insanity was in the House. The fact this legislation requires amendment is a reminder to us to examine every Bill coming through the House. In his speech, the Minister of State recognised that the Seanad has always taken an interest in the rights of the individual, especially those affected by mental health issues, which is equally true of him.

The Bill's main purpose is to provide greater power to the mental health criminal law review board for the conditional discharge of patients detained by order of a court in the Central Mental Hospital, having been found unfit to be tried or not guilty by reason of insanity. The Bill's reading is an appropriate time to raise the issue of the use of the word "insanity" when dealing with the law and mental illness. A more modern term such as "mental disorder" applies in Canada, while "mental impairment" is used in Australia. Many legal practitioners believe the term "insanity" could be replaced by a more accurate one such as "mental disorder". I may be accused of political correctness in this regard. I recall 30 years ago being told to use the term "itinerant" only then to be told to use "Traveller".

Dr. Darius Whelan, lecturer in the law department in University College Cork, said several years ago: "The word 'insanity' conjures up inaccurate images which may have an adverse effect on the appropriateness of juries' decisions and defendant's instructions to their lawyers." If the word "insanity" were to be replaced by "mental disorder", it might give the impression that people could use the insanity defence by reason only of having a mental disorder. I recall the former Minister for Justice, Equality and Law Reform, Michael McDowell, stood by this message when he refused to accept amendments to the Criminal Law (Insanity) Act 2006 which would have removed the term "insanity" in the Title and replaced it with "mental disorder". Mr. McDowell then argued if the term "mental disorder" were used, juries would be more likely to find the mental disorder defence applied.

Louise Kennefick in her paper, The Relationship between Psychiatry and the Law in the UK and Ireland, stated:

It is likely that the law retained the term [insanity] because it was reluctant to allow psychiatry to have any meaningful impact upon the law ... Criminal law is keen to retain the term for the very reason that it is deeply stigmatic. The word itself can be viewed as counteracting the fact that an accused is acquitted when he or she is found not guilty by reason of insanity, as it implies that the accused clearly crossed the perceived dividing line between the sane and the insane and this is why they have been excused in the eyes of the law. To remove this division would make it more difficult for the law to justify its exculpatory (tending to clear from charge or guilt) verdicts, thus leaving it at risk of being branded "soft" on crime.

While being supposedly soft on crime is also a stigma that all political parties want to avoid, we must examine the term "insanity" from a 21st century perspective. As Louise Kennefick argued:

Clinging onto a pejorative term [insanity] in the hope of maintaining public confidence in the Government's crime agenda is coming at the cost of allowing an accused who is excused from responsibility for his actions as a result of the effect of having a mental disorder to be free of depreciatory intimations.

We have the ideal opportunity to put this out-dated term right with a more accurate term like "mental disorder". I am interested in the Minister of State's views on this issue. The Bill is clearly needed and has been brought about by a gap in existing legislation. I am pleased the Minister of State, Deputy John Maloney, has shown his own interest in this area and welcome his intentions in introducing this legislation.