Lisa McDonald (Fianna Fail)

I welcome the Minister of State, Deputy John Maloney, and acknowledge the huge amount of work he has done in the mental health services area since his appointment. Senator Boyle referred to the upcoming seminars on section 59(1)(b) of the Mental Health Act. It is also important to recognise the current television and media advertisement campaign on mental health issues. It is illuminating, taking away the stigma associated with such issues and showing it can happen to anyone. That is also a reason this amending legislation to the 2006 Act is important. It is equally important we continue to develop and modernise our thinking in dealing with mental health issues. The Bill is only one strand and I realise the Minister of State is at work on updating the provisions of and amendments to the law. These are required so that we may treat fairly people who suffer from mental illness and whose mental health has become vulnerable for one reason or another. The advertisements on the television explain this to the ordinary person. Society can be too quick to label a person insane.

I spoke to a mother of a person who is before the courts accused of a heinous crime. She was of the view that she would rather her son were branded insane than a criminal. There is an issue in respect of people believing a stay in the Central Mental Hospital is more welcome than a spell in prison and this is not a matter to be taken lightly. I realise neither the courts nor judges take the matter lightly. It is strange that certain people or accused people might try to go down the road of being branded in this way.

The main purpose of the Bill is to provider greater powers to the Mental Health (Criminal Law) Review Board in respect of the conditional discharge of patients detained by order of a court in a designated centre. As Senator Boyle remarked, the Central Mental Hospital is the only designated centre at present and it requires updating and modernisation, which must be recognised. Although we are updating the law, we must also update our facilities. Obviously money is an issue in this case but, please God, in the near future we will find the resources to deal with it and build a new hospital.

The primary purpose of the Bill is to amend sections 4 and 13 of the Criminal Law (Insanity) Act 2006. The 2006 Act was very welcome at the time because it modernised the law on criminal insanity and provided for the first time in Irish law a statutory definition and re-statement of the test for criminal insanity which had been based on existing rules in the common law. A new verdict of not guilty by reason of insanity replaced the guilty but insane verdict and a new plea of guilty but with diminished responsibility was introduced, which had been available as a defence in the UK for some 16 or 17 years previously. That legislation also contained extensive provisions in respect of a person's fitness to be tried. It amended the law on infanticide, provided for new rules on the transfer of prisoners who become mentally ill while serving a sentence, and established the new review board. The power to recall a patient if conditions of discharge were breached did not exist previously, a matter highlighted by Mr. Justice Hanna in the JB v. The Mental Health (Criminal Law) Review Board case. Therefore, we intend to amend that Act and this new Bill provides for binding decisions and makes conditional discharge binding such that a patient can be returned to a centre if he or she is in material breach of the conditional discharge. This is to be welcomed.

Section 4 provides that a court may make a decision in respect of whether a person should be charged with a criminal offence by reason of mental disorder or is unfit to be tried for such an offence on any of the grounds set out in section 4(2) and that person could be committed for a short-term period. The only designated centre for the purposes of that Act is the Central Mental Hospital. I note the comments of the Minister of State to the effect that she will consider the use of community hospitals in this regard. Certain issues may arise at the District Court which deals with minor offences. However, if one visits a District Court on any given day, one can see clearly there are people who should be detained or committed for a short term to have some form of assessment carried out. The Central Mental Hospital is not suitable in this regard.

The purpose behind section 4 is to remove any doubt about compliance with the provisions of section 5 of the European Convention on Human Rights. The convention requires that, except in emergency cases, an individual cannot be deprived of his or her liberty unless he or she is found, on the basis of objective medical expertise, to be of unsound mind and that any mental disorder must warrant compulsory confinement. In time, we will be required to go a step further. Senator Quinn alluded to the issue of how we deem a person to be of unsound mind and which mental disorder might allow for someone to be excused for a crime on the one hand but considered of unsound mind on the other. There is a very fine line in this regard.

We must move on and consider such issues as paedophilia and cases of people liable to re-offend in respect of sex offences. What is the position of such people in respect of being of unsound mind? I realise each case will turn on its own facts and everyone has their own mental health issues. Certain people deemed to be sane may at a given time suffer a disruption to or disorientation of their mental health and proceed to commit a crime but then be of sound mind the following day. This issue was highlighted in the JB v. The Mental Health (Criminal Law) Review Board case because the person concerned made a very quick recovery. In that case certain actions may have been due to substance abuse at one time and there is the question of whether the person concerned received the required medication and help. It is possible certain substances were left in the person's system but then a recovery to full mental health took place.

While I am not an expert on this area, I recognise that Senator Bacik and others are. Unfortunately, I was unable to hear Senator Bacik's presentation. However, this is an evolving area and we continue to learn the basis for why certain people must be deprived of their liberty to allow society to function. On the other hand, we must have balance in this delicate area of mental health. This Bill represents an important example of the necessity to ensure the criminal justice system sets the correct balance between safeguarding the rights of persons, especially vulnerable people, and the need to protect the community. The conditional discharge provisions enable patients to whom the relevant sections of the 2006 Act apply and who are no longer in need of detention in the Central Mental Hospital to be allowed some or perhaps total freedom while ensuring the welfare and safety of such patients and the public is fully protected.

The legislation represents an excellent progression in our law. We should examine other areas of law, however, and implement similar provisions. Earlier, I referred to sex offenders. Let us consider the case of people who have a history of sexual offences living in county council housing beside a school or anywhere. In some cases such people are left alone, but perhaps they should be monitored. I realise this suggestion might cause mayhem in the world of civil liberties but the interests of society at large are a good deal more important. However, we must comply with the European Convention on Human Rights which is paramount and essential. We must ensure we do not go too far to one side and we must remember that while someone may be mentally unsound, he or she can still cause great damage to a loved one and such a person, whether through psychosis or whatever, may kill, maim or cause harm to society in general. The legislation helps to strike the correct balance in this regard such that people may be recalled. That provision is welcome.

Another reason for the introduction of these measures is to free up places in mental health hospitals and the legislation will ensure this will take place. In addition, unless we change the law, we are open to an award of damages to or litigation from a person who might be detained unfairly and against their will when such a person has made a full recovery, or from someone who suffers at the hands of a person who has been released and there has been a failure to recall them.

I welcome the Bill. There are areas of mental health law and practice other than those covered by the Bill that need to be updated. For the Minister of State's part, nothing is left wanting and no stone is left unturned. While in office over what I hope will be the next couple of years - please God - he will endeavour to improve the law even further.