Ivana Bacik (Independent)

I welcome the Minister of State and commend him for his strong and stated commitment to mental health reform. I am delighted he has accepted the principle behind the much more inelegantly drafted amendment in my name. I will not be pressing amendment No. 2 because amendment No. 1 deals with most of the issues I raised previously.

On Second Stage I expressed concern that fitness to be tried proceedings would still be heard in the District Court in respect of minor offences and that the Central Mental Hospital would be the only designated centre. However, amendment No. 1 provides that the Central Mental Hospital will no longer be the only designated centre, to which the District Court may refer cases. That is a welcome development but it does not go far enough. Why confine matters such that the District Court may only make referrals under section 4(6)(a) only? I suggest it might be more logical to extend this designation to any order under section 4. I, therefore, ask the Minister of State to reconsider the position prior to Report Stage. I will be willing, if necessary, to table an amendment on Report Stage in order to deal with the matter.

I am informed by those who work on the front line that if what I suggest is not done, all final orders made under section 4 - following assessment under subsection (6)(a) of that section - will lead to detention in the Central Mental Hospital, regardless of the need for such high levels of security. I am also informed that making it possible to commit a person to a less secure designated centre would be in keeping with European convention case law. I refer, in particular, to the case of Witold Litwa v. Poland in 2000, in which it was found that detaining anyone within the meaning of Article 5 of the convention was arbitrary and unlawful, unless less severe measures had been considered. I ask the Minister of State to consider expanding the scope of the provision in order that the Central Mental Hospital will not be the default committal centre.

With regard to Irish case law, there is the very tragic case of DH (a Minor) v. Ireland, in which an application was made to detain a minor in the Central Mental Hospital. Mr. Justice Kelly of the High Court refused to make that order and set out clear criteria which he indicated remained the correct statement of law in respect of clinical practice for doctors in the Central Mental Hospital. In so doing, he set out the approach of the courts in the judicial consideration of orders which directed the detention and treatment of persons in the Central Mental Hospital.

Amendment No. 3 in my name is of relevance to this issue and states, "The reference in this subsection to a court shall not include the District Court". In the first instance, I am trying to ensure the Central Mental Hospital will not be the default designated centre for all referrals. However, I would prefer a system, whereby the District Court simply would no longer have jurisdiction to make decisions under section 4(6) in respect of someone's fitness for trial.

I am grateful to the professionals working in the field who briefed me on this matter. Professor Harry Kennedy of the Irish Penal Reform Trust came to the Houses last November and provided Members with an extremely useful briefing on the court diversion scheme he was running out of Cloverhill Prison under the auspices of the national forensic mental health service. As the Minister of State will be well aware, under the scheme those with major mental illnesses who are charged with minor offences are identified and the courts or prosecuting gardaí are asked to defer drop the charges in order that defendants might be admitted to their local approved centres under the Mental Health Act. As a result, such individuals are removed from the criminal system.

Until now, if section 4(6) were used, the process would be prevented and defendants detained at the Central Mental Hospital. Amendment No. 1 will change the position somewhat and people will now be able to be detained in other hospitals, albeit under a different regime. Those working under the diversion scheme want it to be extended nationally in order that persons might be treated in the least restrictive way necessary for their own safety and that of others. They inform me that this would be in keeping with the Minister of State's stated principles in A Vision for Change.

I accept that I have strayed into a discussion on amendment No. 3. However, it is linked to amendment No. 1. I suggest we should remove fitness to plead proceedings in their entirety from the District Court. Indictable cases would go forward to the Circuit Court which could deal with this issue in a reliable and responsible way. I do not intend to cast any aspersions of those who work in the District Court. I have dealt with many criminal cases in that court and I am aware of the high level of pressure on the judges who operate and the lists which obtain in the court. There is a concern that if a defence solicitor asks a District Court judge to use section 4(6), it may be imposed in an insufficiently rigorous manner. In other words, if a defendant is unruly or drunk which can happen in the District Court, the judge may be asked to use section 4(6) and he or she may not have the time to engage in the detailed consideration required in this regard.

I appreciate the intention behind amendment No. 1. I support it in so far as it provides for other psychiatric centres, that is, local psychiatric hospitals rather than the Central Mental Hospital, to be designated. That is an extremely important change. As stated, however, the provision should be expanded to the other courts. It should not just apply to the District Court. In addition, I have a concern about that court's jurisdiction in this area and it is this matter which amendment No. 3 is designed to try to address.

I support amendment No. 1 but with the provisos outlined. I will certainly be tabling further amendments on Report Stage and ask the Minister of State to consider what I have said. He may already have been briefed on the matter by those who work on the front line but it is important that I raise certain points.