Michael McDowell (Dublin South East, Progressive Democrats)
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It would not be in compliance with the provisions of the Constitution or the European Convention on Human Rights to provide that matters relating to persons with a mental illness should be reviewed by a judge who had previously exercised criminal jurisdiction in the case. The body, therefore, that it is being established under statute in this case, is intended to make a decision independent of the Minister for Justice, Equality and Law Reform and the trial judge.

There are merits to preventing the possible confusion between the mental health tribunals, on the one hand, and the Mental Health Commission, on the other. I am receptive to the proposition that a more distinctive title, such as the criminal insanity review board, be given to this body. It is important that people distinguish between the bodies which perform such useful functions under the existing mental health legislation and the body that will be the deciding authority in respect of people who have been judged not guilty by reason of insanity.

Mary Henry (Independent)
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I will not argue with the Minister on the rights and wrongs of having a judge on the body, as he has greater expertise than me in this area. However, it would be wiser to treat mentally ill people the same way. We are hoping that these people are being detained in a medical facility. International obligations on the treatment of people with mental illness, such as UN principles and Council of Europe regulations, require that everyone is treated in the same way. I was sorry that the Immigration Act contained a clause preventing entry to individuals having attacks of florid schizophrenia. This is not allowed internationally. Instead, it is an obligation that some care be taken of the individual. If a person is mentally ill, he or she should be detained in a hospital. I know the Bill states it may be a prison but it is hoped that they are detained in a secure unit in a hospital with other people who are mentally ill but have not committed any crime. Those people may have been prevented from carrying out a crime but could be just as dangerous. The people covered by this Bill do not appear to have half the protections given under the Mental Health Act. Why is this so?

The Mental Health Commission is already established and must have in its composition a lawyer with ten years' experience ending immediately on his or her appointment to the commission. This cannot be a non-practising lawyer who has been brought forward simply to sit on the commission. The Minister informed the House that consultant psychiatrists' advice will be taken. However, many of them have advised that it would be wiser to have mentally ill people reviewed under the mental health commission tribunals. The Minister is right that a political officeholder should not be the person making the decision as to whether these people should be detained or allowed go free. Having looked again at the Mental Health Commission, I do not mind what recommendations the Minister makes as to who should be the chair. I assumed it should be a lawyer but it is fine if a judge is not constitutionally correct. However, I hope the Minister will look at the amendment again and see if the existing structure could be used rather than inventing another one. The body would have the same knowledge of these cases and the same type of people — although they have committed crimes — would be dealt with. The general public will understand this.

Yesterday, during Private Members' business on the proposed constitutional referendum, the Minister informed the House that the public was sophisticated enough to understand that it was not a racist issue. However, when discussing this Bill, the public has to be told that people are insane in capital letters because of possible confusion over the term "mental disorder". Either the public is capable of understanding these matters or not. The public will understand if the mental health commission tribunals investigate such cases and decide whether the individuals should be detained.

Michael McDowell (Dublin South East, Progressive Democrats)
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In the neighbouring jurisdiction of the United Kingdom, the verdict given in such cases is "not guilty by reason of insanity". This conveys to ordinary people what is meant and we cannot be too precious about language. The ordinary Josephine and Joe Soap on the street will understand that an individual has been found not guilty by reason of insanity. It is better to stick to that particular description. In 30 years time, the term may be considered outdated or relevant to a different age. However, it conveys an appropriate meaning and is easily understood.

I do not see why the tribunals, established to decide whether mentally ill people have been appropriately committed and properly detained in the context of the civil law governing mental health, should be brought into play in this particular measure. What is needed is a body that will deal specifically with the decisions that must be made concerning people who have been acquitted of serious crimes on the grounds of mental incapacity. It is important that a dedicated body that specialises in that function should be established. I see no advantage to marrying the Bill to the Mental Health Act.

Mary Henry (Independent)
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People are being dealt with differently because one person is detained in time before committing an awful crime. The responsibilities of the tribunal members are just as serious. Getting a person with a serious mental illness who has violent intent into hospital before he killed or injured someone does not mean there is less of a responsibility than if one is dealing with someone who actually committed a crime before they were committed to an institution. It would be better to deal with everyone in the same straightforward way. However, the Minister does not agree with me.

Michael McDowell (Dublin South East, Progressive Democrats)
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They are equally serious issues but public confidence in the law must be maintained. If an individual is acquitted by reason of insanity, the public must know if it is appropriate for that person to be released. Until now, it has been my unhappy chalice to make a decision as to whether the individual should go free from the Central Mental Hospital on the basis that he is cured. When he signs his decision on the file, the Minister for Justice, Equality and Law Reform knows, in the back of his mind, that he will not be easily forgiven by the public, the relatives of the deceased and, possibly, the relatives of a second victim if he makes a mistake and his decision turns out to have been wrong. It is a matter of huge gravity. If we remove that power from the Minister, as a member of the Executive, and confer it on another body, we must do so very solemnly. We must retain public confidence in decisions.

Senator Henry knows — she could write the script — what will happen if the body makes an incorrect decision, if a repeat offence takes place as it has on previous occasions or if people are released in circumstances that give rise to controversy. One can imagine the reactions of the relatives of the victims of the first and second offences, just as one can imagine what the media would make of it all. Such thoughts enter my head from time to time when I sign one of these orders. I wonder if I am getting it right, if I can be sure and if I will be willing a day later to stand over the decision as absolutely right.

A specialised board is being established, with the solemnity and formality that attaches to it, to deal with such decisions. That is not quite the same as somebody complaining that they have been wrongly committed to a mental institution against their wishes on flimsy or inadequate grounds, that psychiatrists have made the wrong decision about them and that they are entitled to go free. It is a question of public perception. Regardless of the individual ingredients of the decision, the people's confidence in the system will have to be fully maintained.

I accept the point made by Senator Henry. A psychiatrist who is deciding whether somebody should be committed, or whether somebody's committal should be continued, is making decisions of equal gravity, in theory and in fact. I accept that if the person is released onto the street, he or she might do something terrible. There may be an original set of victims, but the potential exists for a second set of victims. I refer to persons who have been excused criminal liability for what would otherwise have been a very grave crime, most likely homicide. One must be certain that the decision-making mechanism one puts in place in such circumstances is independent of the Executive. Those making decisions should not have to spend many days assessing run-of-the-mill appeals by mental patients against the way they are being treated or the way they were committed.

This solemn business must command public respect and confidence because every decision will be subjected to very grave public scrutiny. The public never hears — thank God — about the vast majority of people who are committed to mental institutions or mental hospitals. People have no idea that such people have been committed and do not know when they are coming out. There is little public scrutiny of the circumstances in which such people enter or leave institutions. The tribunals are important as part of the private protection of such people's rights, but it is basically a private matter.

The tribunal function under discussion is a public one, however. It will be subject to absolutely searing media scrutiny if anything goes wrong. The members of the tribunal will make decisions of the utmost gravity. Although such decisions may be taken in private, the members of the tribunal will be made publicly accountable for them, even if there is no subsequent misbehaviour. Even if the patient is fully cured and leaves the institution to live an exemplary life thereafter, some sections of the media will kick up an almighty fuss about the fact that he or she was released in the first place. They will demand that the decision be justified and stoke up public hostility to the decisions that were made. It is important, therefore, that there should be a dedicated separate body to make such decisions, in which the public should have significant levels of confidence. It should not just be called on to assess run-of-the-mill protests by patients with mental illness who feel they have been wrongly committed. Dealing with such protests will be the ordinary business of the mental health tribunals under the mental health legislation.

Mary Henry (Independent)
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People are rarely involuntarily admitted unless they are a danger to themselves or to others. They are usually involuntarily admitted for such reasons.

Michael McDowell (Dublin South East, Progressive Democrats)
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That is not necessarily the case. Section 3(1)(b) of the Mental Health Act 2001 allows them to be admitted for different reasons.

Mary Henry (Independent)
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Approximately 30% of the people in the Central Mental Hospital have not committed crimes. I would not like the public to lose confidence in the tribunals, because certain people could represent as much of a danger if the tribunals were to release them. I would not like to think that we are driven by the media in respect of issues as serious as dealing with people with mental illness.

Paul Bradford (Fine Gael)
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I move amendment No. 6:

In page 4, subsection (1), between lines 8 and 9, to insert the following definition:

" 'mental illness' means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) to (d);".

I move this amendment on behalf of my colleague, Senator Terry, who cannot be here this morning because she has another engagement. I apologise to the Minister on her behalf.

The definition of "mental disorder" in the Bill includes a reference to the term "mental illness". This amendment proposes that a definition of "mental illness" be included to give more detail. It would be helpful to define "mental illness" in this section. The definition proposed by Senator Terry is taken from mental health legislation in New South Wales. I ask him to consider the proposed definition. We have defined "mental disorder", but we suggest that the Bill should go a little further by specifically defining the term "mental illness" which is mentioned in the definition of "mental disorder".

Michael McDowell (Dublin South East, Progressive Democrats)
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I understand where this amendment is coming from. I do not think it would assist the criminal justice process to set out five manifestations of mental illness and then say that is what "mental illness" actually means. The phrase "serious disorder of thought form", which is mentioned in the amendment, might be seen by some as setting the bar very low for criminal insanity cases.

Mary Henry (Independent)
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I agree with the Minister on this occasion. However, a section of this exact type was included in the Immigration Act 2004, the Schedule to which refers to "delirium" and "hallucinations" at the port of entry. One would need to shape up and to look pretty normal. If such a provision was included in the Immigration Act, why is it not being included in this legislation? Why is there such inconsistency in the Department of Justice, Equality and Law Reform? The Minister does not like this type of provision in this Bill, but he liked it in the Immigration Act. I agree that we should not include a list of symptoms and signs in legislation, but we did so in the Immigration Act.

Michael McDowell (Dublin South East, Progressive Democrats)
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A decision to admit to Ireland a person who is mentally ill is not the same as a decision to acquit a person of a crime on the basis that he or she is mentally ill. The approach that was taken in the Immigration Act was adopted to guide immigration officers and to suggest to them what they should do or what they should be concerned with. The acceptance of amendment No. 6 would tie down the criminal courts and the Judiciary, in respect of what is mental illness by setting down an exhaustive list of conditions.

I do not agree with Senator Henry's suggestion that I should adopt the same attitude in every Bill that comes before the House. I will not repeat the reasons why I do not have to adopt the same definition of "mental disorder" for civil mental health law and for criminal mental health law. I do not see why the same definitions should be adopted for people who are being refused admission to Ireland and for people who will be acquitted of very serious offences.

I do not see any necessary connection. I draw the Senator's attention to the tyranny of consistency.

Mary Henry (Independent)
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Having been obliged to deal with matters in a practical manner all my life, while the Minister comes from a more esoteric realm, I know that if one tries to keep things consistent one comes out with a pretty good result in the end because everyone knows where they are supposed to be. We have international obligations — that is why I was so furious about the Immigration Bill. If someone looks as though he is having a florid attack of schizophrenia we are not supposed to put him back on the aeroplane to Manchester but should deal with him here.

Paddy Burke (Fine Gael)
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Amendments Nos. 7 and 103 are related and may be discussed together. Is that agreed? Agreed.

Paul Bradford (Fine Gael)
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I move amendment No. 7:

In page 4, subsection (1), between lines 10 and 11, to insert the following definition:

" 'patient' means a person detained in a designated centre pursuant to this Act;".

The appropriate place for definitions is normally in the definitions section at the beginning of the Bill. In section 12 of this Bill there is a definition of the word "patient". I am simply proposing that this definition be relocated to section 1.

Michael McDowell (Dublin South East, Progressive Democrats)
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It is sometimes the case that definitions are included in the definitions section at the beginning of a Bill but it is also case that where a certain term is being given a meaning for a particular section this is sometimes done in the context of that section. This is a drafting-style amendment and I do not think it particularly affects the meaning or effectiveness of the Act. At this stage I am not inclined to agree to make changes for the sake of style.

Paddy Burke (Fine Gael)
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Amendments Nos. 9 and 74 are related and may be discussed together. Is that agreed? Agreed.

Joanna Tuffy (Labour)
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I move amendment No. 9:

In page 4, before section 2, to insert the following new section:

"2.—Every Order or regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the Order or regulation is passed by either such House within the next twenty-one days on which that House has sat after the Order or regulation is laid before it, the Order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

The purpose of this amendment is to ensure there is some accountability to the Oireachtas in the area of orders made by the Minister under this Act. Normally, orders must be presented to the Dáil and the Seanad. We simply wish to ensure this general rule applies to this legislation also. The purpose of amendment No. 74 is to ensure there is formality in procedure. We would at least expect regulations to be set out.

Michael McDowell (Dublin South East, Progressive Democrats)
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Section 20 permits me to commence the Act, while section 9, by contrast, permits me to appoint an establishment day for the purpose of section 10. How can we have a situation in which I would be obliged to come before the House and have the establishment day and the commencement revoked? I do not think it would be a good idea to provide for the possibility of my commencing this Act and then being told 21 days later that I cannot commence the Act — that the process has juddered to a halt. Not every order under a statute must be laid before the Houses of the Oireachtas for approval.

As regards Senator Tuffy's reasonable point that I should be accountable to the House for the manner in which, for example, I designate centres under section 2(1), I will be fully accountable. I will be answerable to the Oireachtas in this regard. Anyone who is dissatisfied with the way in which I am carrying out that function will be able to find out what I am doing through a parliamentary question and censure me or put down a motion of no confidence during Private Members' Business. I do not think accountability requires me to constantly lay orders before the Houses about the premises that will be designated centres.

Joanna Tuffy (Labour)
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Why are provisions such as these put into some Bills and not others?

Michael McDowell (Dublin South East, Progressive Democrats)
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The Senator is becoming Henry-esque in requiring me to be consistent in everything.

Paul Bradford (Fine Gael)
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The futility of consistency.

Michael McDowell (Dublin South East, Progressive Democrats)
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Commencement orders are not normally capable of being revoked by either House. For some statutory instruments it is required that each House be given an opportunity to revoke them; for others this is not the case. If I select part of a prison as a designated centre for certain purposes under this Act, I do not think it is necessary to provide that the designation can be revoked within 21 days by a resolution of either House of the Oireachtas.

Mary Henry (Independent)
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I move amendment No. 10:

In page 4, subsection (1), line 27, after "may" to insert ", on the advice of the Inspector of Mental Health Services".

This is an easy one. I am delighted to see that the Minister for Health and Children will be consulted, but we should not expect him to know exactly how things stand in the various mental hospitals of the country. It would be a good idea to allow him to rely on his Inspector of Mental Health Services.

One thing that worries me about the Bill is that it is written as though people think there are still locked wards in many hospitals, which is not the case. There are very few locked wards that would be secure enough to keep inside the sort of person the Minister described. These people would have to be sent to the Central Mental Hospital. However, if somebody was not dangerous the Inspector of Mental Health Services would be in a position to give the Minister advice. For example, it is always wise, whether a person is a prisoner or a patient, to try to keep him in a location near his home and family because one hopes that at some stage he may be allowed out of detention. It would be useful for the Minister for Health and Children to be able to have the advice of the Inspector of Mental Services.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am grateful to the Senator for tabling this amendment. In principle I accept that the Minister for Health and Children should consult with the Mental Health Commission rather than the inspector, who is employed by the commission, before making a designation. I am not prepared to give the inspector a veto over my decision, which would be the result of the Senator's amendment. However, I will consider introducing an amendment on Report Stage which would have the effect of requiring me to consult with the Mental Health Commission before I make a designation.

I cannot allow the possibility of a veto, which would mean that if there were a policy argument between me and the people in the area I could be told I could do nothing and the Act would become inoperable. However, I will go halfway down that road and say that I favour an amendment which would oblige me to consult with the Mental Health Commission when I am exercising these functions. I cannot allow a body that is not accountable to the House to have a veto over decisions. If I were in dispute with that body I could, broadly speaking, make the Act inoperable.

Mary Henry (Independent)
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I will rephrase it in a way the Minister would like. I asked that the Minister for Health and Children should consult with the inspector of mental services but that does not mean that the inspector has a veto. The Minister may think it is rubbish and proceed to do what he wants, anyway. The commission is very likely to ask the advice of its inspector, who is its employee and is obliged to inspect everywhere once a year and more frequently if possible. From a practical viewpoint, one cannot expect the Minister for Health and Children to travel the country to inspect places, whereas the inspector of mental health services is obliged to do so. If the Minister would prefer it to be done by the commission, that is fine, but it should be done on the advice of the inspector. I am not saying the Minister has to take the inspector's advice.

Michael McDowell (Dublin South East, Progressive Democrats)
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I was referring to myself but, for the purpose of clarity, I should have been referring to the Minister for Health and Children because the section vests this power in him, not in me.

Mary Henry (Independent)
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I move amendment No. 11:

In page 4, subsection (1), to delete all words after "designate" in lines 27 and 28 down to and including "centre')" in line 31, and substitute "an approved centre within the meaning of the Mental Health Act of 2001".

I wish to insert this wording because it is considered inadvisable, and is not considered therapeutic, to establish psychiatric centres in prisons. I have just been discussing the possibility of problems arising with detaining people in various parts of the country but such detention should mean detention in a hospital. I do not like referring back to the Mental Health Act 2001 but it would be better if we concentrated on getting people into hospitals and other specialised in-patient facilities if necessary. It is not a good idea to settle for having an approved centre in a prison or any part thereof.

Michael McDowell (Dublin South East, Progressive Democrats)
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The designation of centres where persons will be accommodated, as covered by the terms of the Bill, is a matter for the Department of Health and Children in consultation with my Department in cases where such centres are located within a prison. That clearly illustrates the duality of responsibilities involved in the provision of care and treatment for persons who have been found by a court to be unfit to be tried, or found not guilty of an offence by reason of insanity.

On the other hand, there may be rare situations where it might be appropriate to detain a person in a prison rather than a psychiatric hospital. That, unfortunately, is the reality of the situation. We cannot rule out the possibility that at some stage the requirements of public safety might override other considerations and that a person may have to be detained within the confines of the most secure facility available. I am talking about a rare phenomenon or possibility — a Hannibal Lecter kind of situation — where it would be necessary for somebody to be kept in the most secure accommodation possible. In such a case, no mental institution, including even the Central Mental Hospital, would be appropriate for that person. Any concerns about the treatment, care and well-being of a person detained in such circumstances are met by the provision of the Bill governing the establishment of the new mental health review board and by the extensive provisions of the Mental Health Act 2001.

I wish to indicate to the House that I will be proposing an amendment to this section on Report Stage, clarifying the position concerning the Central Mental Hospital to make it clear that the Central Mental Hospital is a designated centre for the purposes of this legislation.

Mary Henry (Independent)
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This runs counter to the First UN Congress on the Prevention of Crime and the Treatment of Prisoners 1955, which was approved in 1957. That congress listed standard minimum rules for prisons, one of which stated that "Prisoners found insane shall not be detained in prisons and shall be removed to mental institutions as soon as possible." The same set of minimum rules went on to suggest that "All other mentally ill prisoners should be treated in prison, but their treatment should be of an acceptable medical standard". I will examine the Minister's proposed amendment on Report Stage.

Mary Henry (Independent)
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I move amendment No. 12:

In page 4, subsection (1), line 32, to delete "care or treatment" and substitute "care and treatment in conditions of high, medium or low therapeutic security as designated by the Inspector of Mental Health Services".

I am concerned about the use of the term "care or treatment" in the Bill because "care" can mean controlling and detaining a person. It is unfortunate to use the term "care or treatment". My amendment seeks to substitute the words "care and treatment in conditions of high, medium or low therapeutic security as designated by the Inspector of Mental Health Services".

My concern in this regard is the use of the term "care or treatment". It has been suggested to me that "treatment" means one has to have a cure, but that is not so. I have looked up the meaning of "treatment" in medical and legal dictionaries. In one medical dictionary, "treatment" is defined as "the means employed in the management and care of people". It does not mean that a cure will be possible. Butterworth's Legal Dictionary states that "treatment in relation to disease includes anything done or provided while alleviating the effects of the disease, whether it is done or provided by way of cure or not". The definitions are much the same and, therefore, I think people are entitled to both care and treatment.

The term "care or treatment" makes it look like the care is custodial — as it involves detaining the person — and the treatment is optional. The Minister should insert the term "care and treatment" in this section. I am also suggesting that the centres should be designated as high, medium or low security. The matter that concerns me most, however, is substituting the term "care and treatment" for "care or treatment".

Michael McDowell (Dublin South East, Progressive Democrats)
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I have two main difficulties with the amendment. The first is that the functions of the inspector of mental services are set out in section 51 of the Mental Health Act 2001. It does not appear to me that they can be read as including or inferring a power or function such as is envisaged in the amendment with regard to the designation of conditions of security in psychiatric facilities.

Second, following discussions with the Department of Health and Children, I am considering tabling an amendment on Report Stage to the definition of "psychiatric centre", which will meet the intention behind the Senator's amendment. It will allow in-patient facilities, which are not hospitals, to be designated under the Bill. I also intend to add the words "within the meaning of the Act of 2001" following the word "disorder" in section 2(4), line 43, page 4. As to the Senator's point about the term "care or treatment", I will deal with that specific issue when we come to amendment No. 21.

Paddy Burke (Fine Gael)
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Is amendment No. 12 being pressed?

Mary Henry (Independent)
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No. The Minister's answer was very satisfactory.

Paddy Burke (Fine Gael)
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Amendments Nos. 129 and 130 are related to amendment No. 13. Amendment No. 139 is consequential on those amendments and all may be discussed together by agreement.

Mary Henry (Independent)
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I move amendment No. 13:

In page 4, subsection (3), line 37, to delete "Part IV of the Act of 2001" and substitute "All of the protections of the Act of 2001, including Parts III, IV, VI and any other parts relevant to the independent review of the involuntary admission of such persons".

I move this amendment because these mentally ill people should have the protection of the Mental Health Act 2001.

Michael McDowell (Dublin South East, Progressive Democrats)
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Part 4 of the Mental Health Act 2001 relates to consent to treatment and its inclusion in this legislation ensures the protections in the Act regarding consent to treatment are also extended to persons who are treated in psychiatric centres under the legislation. It would not be appropriate, therefore, to extend the provisions of the remaining Parts of the Mental Health Act 2001, which relate mainly to the process of independent review of involuntary detentions, to persons detained under the provisions of this Bill because that function is being assigned to the review board to be established under the legislation and, therefore, I am opposed to amendment No. 13.

I would like to consider amendment No. 129. It is a matter on which the Minister for Health and Children will have views and, following consultation with him, I will return to the House on Report Stage regarding the issue. It is a reasonable provision and I have no objection to it in principle.

I would like also to consider amendment No. 130 in the context of section 13(6). I have concerns about powers of arrest of civilian staff of designated centres under section 13(7) and I will examine the issue between now and Report Stage.

I oppose amendment No. 13 because the consent to treatment provisions are guaranteed while the review of involuntary detention is being assigned to the review board that will be specifically established under the Act. I am attracted, in principle, to amendments Nos. 129 and 130. I want to consult the Minister for Health and Children on amendment No. 129 and I will consider amendment No. 130 carefully between now and Report Stage in terms of what to do about that issue.

Mary Henry (Independent)
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I accept the Minister's comments.

Mary Henry (Independent)
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I move amendment No. 14:

In page 4 subsection (4), to delete lines 41 to 43, and substitute the following definition:

"'relevant designated centre' means the designated centre at the appropriate level of security for the part of the country where the patient ordinarily resides, or the Central Mental Hospital.".

The amendment proposes a practical measure, which it would be wise to include. People should, if possible, be placed in secure units as near as possible to their families because it is important that prisoners should maintain contact with their families. Few patients in the Central Mental Hospital receive family visits. That is why I tabled the amendment.

Michael McDowell (Dublin South East, Progressive Democrats)
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While I fully agree with the Senator that it is desirable that visiting should be facilitated, I cannot accept the amendment because the term "relevant designated centre" would mean the designated centre at the appropriate level of security for the part of the country where the patient ordinarily resides or the Central Mental Hospital. That means one could not be sent to an institution with the appropriate level of security or the Central Mental Hospital if it was not local. It would be unwise to introduce such a constraint into the system. However, I fully agree patients should be able to receive visits. Distance is not the predominant factor in the non-visiting of patients. There are other more dominant factors.

Paul Bradford (Fine Gael)
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I move amendment No. 15:

In page 5, between lines 4 and 5, to insert the following subsection:

"(2) An accused person is presumed to be fit to be ready to be tried unless the contrary is shown.".

The amendment is proposed to provide additional clarity and certainty. All persons should be presumed fit to stand trial until the matter of insanity is raised and adjudicated upon. The Minister should not have great difficulty with the amendment, as it is not contrary to the policy underpinning the Bill. I hope he will accept it.

Michael McDowell (Dublin South East, Progressive Democrats)
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I regret that I do not accept the amendment. It would introduce apresumption in an area where it is not necessary or desirable. The court should have an open mind on the issue of whether somebody is fit to be tried and should not make a presumption one way or another. De facto, there is a day to daypresumption that, unless the issue is raised, no inquiry is held into it. The amendment would create a hurdle for the court or the accused to surmount if it wanted to establish that the accused was unfit to be tried. There should be a level playing field on which there are no presumptions one way or the other and the court should inquire into the issue when it is raised on an entirely neutral basis, objectively, and without an inherent presumption regarding the way it approaches the issue.

The other reason it is unnecessary is that, as a matter of common sense, a court proceeds on the basis that everybody before it is fit to participate unless it receives a signal in the other direction. De facto, the courts do not ask everybody whether they are fit to plead and they do not normally inquire of the solicitor for an accused whether his or her client is in a position to plead. The issue only arises in most cases where there is an issue in somebody's mind. It is unnecessary to introduce a presumption in that context and it could, in the minds of some judges, raise a bar which the accused's representative would be bound to hurdle before getting to the correct decision. It is probably better to leave things without presumption.

Paul Bradford (Fine Gael)
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There is not a great difference between us. The de facto position is that the presumption is there. Normally if a person stands trial, he or she is considered to be fit to do so. We seek to add certainty. I take the Minister's comments on board but the presumption already exists. The Minister stated the amendment could create difficulties because people might seek to use it as an opt-out clause but, under the legislation, one can only say one is unfit to stand trial if one can prove it. I sought the inclusion of the amendment to provide clarity and certainty but, in a sense, it is there already. I will bow to the Minister's wiser judgment.

Mary Henry (Independent)
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I move amendment No. 16:

In page 5, subsection (2), line 5, after "if" to insert "having obtained the opinions of two approved medical officers, one of whom is the clinical director of a designated centre, the court finds that".

This is self-explanatory. It would be wise early in proceedings if a person is suspected of being mentally ill to have him or her seen by two approved medical officers. Seeing that he or she will be sent to a place of detention, one doctor should be the clinical director of the designated centre. Certain people may be so disturbed they have to be detained in prison and the clinical director may be able to tell the court if the facilities capable of containing the person were available. It would be of assistance to the court and the judge if this information was available at the beginning.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am opposing this amendment and the more I hear the argument in favour of it, the more I am opposed to it. Section 3(2) states:

An accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand the nature or course of the proceedings so as to-

(a) plead to the charge,

(b) instruct a legal representative,

(c) make a proper defence,

(d) in the case of a trail by jury, challenge a juror to whom he or she might wish to object, or

(e) understand the evidence.

I see no reason for the requirement that the opinion of two doctors, presumably with psychiatric experience, be a prerequisite to making a decision which would stare a judge in the face. Sometimes one sees people in court who clearly are unfit to be tried. There is no need to bring two doctors to tell the court what is blindingly obvious and the person is probably well known to the court as somebody who is unfit to be tried. There is no point having a trial if the person is unable to participate because of his or her florid behaviour. In my view, having two doctors in those circumstances would not be practical.

Senator Henry has perhaps let the cat out of the bag because what she is really saying is that nobody should be going down that line unless two doctors have given the green light as to whether there is a facility suitable to contain him or her. We cannot have a situation where the psychiatric profession or its representatives have a veto over a decision as to whether somebody is fit to plead, based on whether the facilities are available to deal with him or her. One is either fit to plead or not; the consequences of that are a different matter. We cannot have a situation where a doctor can say the facilities are not available or that the person caused a great deal of trouble. Section 3(2) provides basic protection for the accused and I do not believe that two psychiatrists or doctors of any kind should be allowed to override the court's function, which is not to proceed with a trial if subsection (2) applies.

Mary Henry (Independent)
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Does the Minister think I am looking for jobs for my friends, such as two senior counsel and one junior, that sort of thing? Some people pretend to be mad and are very good at it. We probably have more trouble with that than anything else. One need not have them, if that is the case.

Section 3(2) states "if he or she is unable by reason of..." Would it be better to substitute "incapable" for "unable"? What brought this to my mind was the Minister's use of the word "incapacity" yesterday. I am not trying to get jobs for the boys or girls. However, I will withdraw my amendment.

Michael McDowell (Dublin South East, Progressive Democrats)
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With the permission of the Chair, I wish to indicate that I will introduce an amendment on Report Stage to remove the word "or" from the phrase "or commit him" at the beginning of line 30 in section 3(3)(b).

Amendment No. 17 not moved.

Paul Bradford (Fine Gael)
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I move amendment No. 18:

In page 5, subsection (2), line 7, to delete "so as to" and substitute "such that he or she cannot do all of the following".

I am seeking to clarify whether it would benecessary for a person who declared himself or herself unfit to stand trial or was declared unfit to stand trial to be unable to carry out each and every provision from paragraphs (a) to (e) of section 3(2).

Michael McDowell (Dublin South East, Progressive Democrats)
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The word "or" at the end of line 12 in section 3(2)(d) suggests that they are disjunctive rather than conjunctive.

Paschal Mooney (Fianna Fail)
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Amendments Nos. 27, 28 and 31 are related to amendment No. 19 and all may be discussed together. Is that agreed? Agreed.

Mary Henry (Independent)
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I move amendment No. 19:

In page 5, subsection (3)(a), line 19, after "Court" to insert

"having obtained the opinions of twoconsultant psychiatrists, one of whom is the relevant psychiatrist at the relevant designated centre or the Central Mental Hospital".

The court would benefit from the advice of the psychiatrist of the centre to which it is proposed to send the person. It is not a question of trying to get jobs for anybody.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am opposed to this amendment for the reasons I mentioned before. The court has to make certain decisions, but the view of the person who is associated with the institution to which the person being dealt with by the court may be sent is not determinative of the issue. I do not want to give a veto or a quasi veto to psychiatrists in these institutions. I do not want a situation where effectively they can say they do not wish to receive a person. A function of the Central Mental Hospital is to deal with the patients sent to it, not to determine in a consultative role what the outcome should be of decisions leading to people being sent there.

Mary Henry (Independent)
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This is all very well, but there are no practical provisions in the Bill to make available resources to allow people to be maintained at the facility. The Minister is aware of the utterly appalling condition of the Central Mental Hospital. Approximately 30 beds at the hospital are unavailable because of an embargo on staff recruitment. What is the hospital supposed to do with people sent to it given the lack of accommodation? I suggest that whoever is running the facility must be given some say as to whether the hospital is in a position to take people in. If all 100 beds were operating but full, how would the hospital accommodate an extra ten people sent to it?

One must consider the practicalities at some stage. The receiving facility will face a very serious problem if it is not in a position to place persons sent to it in safe custody. What is the hospital to do if it has no room to spare? I suggest the hospital staff should be listened to for that reason rather than to encourage the Minister to provide them with a power of veto. The Bill's enactment will lead to a requirement for resources only in the case of the review board. That is not so. The mental health services will also require resourcing and, certainly, money, to detain people properly. If the clinical director of the relevant centre has no beds available, he or she should be permitted to inform the courts. It is not a question of providing a veto; it is one of practicality.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am very well aware of the shortcomings of the Central Mental Hospital. I took the trouble to visit the institution which, although it is not directly under my remit, is very intimately connected with many of the functions of my Department. I was shown around by the staff.

Mary Henry (Independent)
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It is appalling.

Michael McDowell (Dublin South East, Progressive Democrats)
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I came to a number of conclusions about the facility. It is a sub-standard institution situated on grounds which must have a colossal value. It is an amazing irony that a substandard institution should be squatting on an asset which ought to be realised to provide adequate mental health facilities. That is very strongly my opinion.

I found it difficult to understand why some of the sub-standard rooms, which areindistinguishable from cells, in the older building are open while more modern accommodation in a wing added in the 1970s or 1980s is closed. I could not understand the logic of how such asituation could come about, yet it is the case. I could not understand how, when the PrisonService can put a television into every cell in nearly every prison, somebody convicted of no crime is not provided with a similar facility in secure accommodation at the Central Mental Hospital. Considering the value of the asset on which the hospital is physically located, the regime determined by the inadequacy of the buildings and the circumstances in which unconvicted persons are, in some cases, required to spend substantial parts of their lives, the matter requires extremely urgent attention.

I make no secret of my view that the asset value of the current site should be realised to build a modern forensic psychiatric institution to the highest standards somewhere else. I found it dispiriting and slightly grotesque that one could be on grounds of such value but be faced with an under-resourced institution with a physical environment, in which staff and patients are required to exist, which is of a quality wholly indefensible in the 21st century. I am not criticising the staff for this state of affairs; I am saying that these appear to me to be incontrovertible facts. I have spoken to colleagues about this matter. I am strongly of the belief that the asset value of the land should be converted to build at a different location a forensic psychiatric institution of which we can all be proud. That should and could happen sooner rather than later.

As Minister for Justice, Equality and Law Reform, I find the current situation to be deeply unsatisfactory. Psychiatrically ill prisoners must have available to them an institution at which they can be securely treated for illnesses which may have nothing to do with the circumstances of their convictions but which may emerge during their terms of imprisonment. It is in that context that when I was first appointed I immediately toured some of our prisons, saw the padded cells currently in use and came to a very clear view that the practice of using them should be ended. Proper observation facilities for people who are psychiatrically ill should be put in place. Senator Henry has probably seen padded cells. The European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has commented adversely on them. In their present form, which I am glad to say is being phased out, they are wholly indefensible as a means of dealing with psychiatric and psychological problems in prisoners. In some cases it is like being put into a shower cubicle with little or no light or ventilation. Prisoners are left in their underwear in semi-darkness lying on the floor of a rubber room about twice the size of a large fridge. That is not acceptable in the 21st century.

I encountered the problem that people were being placed in these institutions while argument and debate went on as to whether they should or should not be accommodated in other, more suitable accommodation. That is not acceptable either in the 21st century. Senator Henry is pushing an open door with me in pointing out inadequacies and resource issues. Common sense must intrude when looking at a campus in Dundrum which must have a value of between €60 million and €80 million. If only half that sum were devoted to building an adequate forensic psychiatric treatment centre somewhere else, significant progress could be made and we could have an institution of which we were proud rather than one from which, at best, we must avert oureyes.

Mary Henry (Independent)
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I am aware the Minister visited the Central Mental Hospital. Like him, I am very shocked by the padded cells in use. When the Minister of State at the Department of Finance, Deputy Parlon, opened what the press called his "estate agency" for State property, I organised a Private Members' debate in the House on selling something to pay for the building of a new central mental hospital. One problem with that site is that the old hospital is so antique there is a preservation order on it. It is one of the most antique medical institutions in Europe, and that is a serious problem. We might have to use part of the ground to build a new hospital.

Michael McDowell (Dublin South East, Progressive Democrats)
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I profoundly disagree with that proposition. It should be moved elsewhere. Whatever difficulty exists with that building should be addressed by either redesignating it or by a planning decision which would allow it to be converted into apartments or whatever with major internal structural alterations. Preserving it as it is and using that campus for the purposes of the Central Mental Hospital is a decision to keep €80 million locked into an unsatisfactory situation. The facility could be provided in a more convenient location. I am not in favour of rebuilding on the current site as it would be a waste of public resources.

Paschal Mooney (Fianna Fail)
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Is the amendment being pressed? We are not talking concerned with the building. This debate is not related to the amendment.

Mary Henry (Independent)
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I do not mind where it is located as long as someone uses it but I would not like it to be in Abbottstown or somewhere like that just because the land is available. I do not think we can even convert the present complex into apartments——

Paschal Mooney (Fianna Fail)
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The Senator is now entering the area of speculation.

Paschal Mooney (Fianna Fail)
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Amendment No. 20 is in the name of Senator Henry. Amendment No. 24 is related and it is proposed to discuss amendments Nos. 20 and 24 together by agreement.

Mary Henry (Independent)
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I move amendment No. 20:

In page 5, subsection (3)(b), line 25, to delete "approved medical officer" and substitute "clinical director of the specified designated centre".

In terms of the clinical director, any doctor will not do in this case. Whoever receives this person has to be in a position to say whether the institution is capable of taking him or her. The Minister will say they cannot have a veto over that but from a practical point of view I would have thought this would be useful.

Michael McDowell (Dublin South East, Progressive Democrats)
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In regard to the section generally, under the provisions of section 3(6) the approved medical officer is the consultant psychiatrist who will be treating the person concerning the designated centre. He or she would be the most appropriate person to provide the court with an opinion as to whether the person has a mental disorder. In any event, most consultant psychiatrists would consult with the clinical director of their centre in such circumstances.

I understand the Department of Health and Children agrees with the principle that the treating psychiatrist should be consulted before the court commits or, perhaps more appropriately, refers a person to the psychiatric centre for an assessment. I also understand that Department considers that the period might be reduced from 28 to 14 or even fewer days. In those circumstances, I am prepared to examine the provision, consult further with the Department on those issues and come back on Report Stage with appropriate amendments.

Before we end the debate on section 3, I would prefer to give the House some indication that I am thinking of including a further ground for unfitness in regard to a person's inability to elect for trial by jury in the case of an indictable offence. Sometimes one has to make an election as to whether one wants to be tried in the District Court or the Circuit Court. That right of election is just as important as, say, the right to challenge a juror at a later stage when we get to jury trial. I may bring forward a Report Stage amendment to that effect.

Paschal Mooney (Fianna Fail)
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Amendment No. 21 is in the name of Senator Henry. Amendments Nos. 29, 38, 110, 111, 116, 123 and 126 are related and it is proposed to discuss these amendments together by agreement.

Mary Henry (Independent)
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I move amendment No. 21:

In page 5, subsection (3)(b) line 29, to delete "or" and substitute "and".

I explained earlier the reason I believe it is important to use the term "care and treatment" rather than "care or treatment". The custodial element of care is being preserved and separated from treatment but as I pointed out to the Minister when I discussed it earlier, treatment does not mean one necessarily has a cure. The medical and nursing professions would be in a terrible state if we had to say that every treatment would cure a person.

Michael McDowell (Dublin South East, Progressive Democrats)
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I appreciate the points made by Senator Henry in support of the amendment and I would be very concerned that any possibility might exist that people with certain conditions might be left to one side untreated or simply cared for. As this is solely a health issue my Department has discussed the matter with the Department of Health and Children and it favours the term "care or treatment" as used in the Bill, which is also used in other legislation, because it affords greater flexibility. However, I note that in certain areas of this Bill, and this is the tyranny of consistency, we also refer to the "care and treatment". I exemplify sections 11 and 12 where "care and treatment" is used. In those circumstances, between now and Report Stage I will examine that issue, in conjunction with the Department of Health and Children, to determine if we find a different approach more attractive.

Mary Henry (Independent)
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On page 10 line 5, page 8 line 33, page 9 line 17, page 15 line 23, page 16 line 30, page 17 line 1, page 22 line 30, page 36 line 2, page 37 line 9, page 59 line 3, page 41 line 10, page 43 line 45, page 50 line 47, page 51 lines 15 and 19 and page 50 line 33 of the dreaded Mental Health Act, the term "care and treatment" is used. The only time "care or treatment" is used here is on page 15 line 27 but on line 21 the word "and" is used.

Paschal Mooney (Fianna Fail)
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Senator, far be it for me to interrupt you but my understanding of the Minister's reply is that he has agreed to come back on that specific point on Report Stage.

Mary Henry (Independent)
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He has agreed to do that in two areas.

Paschal Mooney (Fianna Fail)
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I am talking about this particular amendment. He has agreed to look at it——

Michael McDowell (Dublin South East, Progressive Democrats)
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I will look at it generally across the legislation.

Mary Henry (Independent)
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The Minister generally agrees with it. It is a matter of ensuring consistency.

Paschal Mooney (Fianna Fail)
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Amendment No. 23 is an alternative to amendment No. 22 and it is proposed to discuss both amendments together by agreement.

Mary Henry (Independent)
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I move amendment No. 22:

In page 5, subsection (3)(b), line 30, to delete "commit him or her to a specified designated centre" and substitute "commit him or her to the designated centre subject to the agreement of the clinical director of the specified designated centre".

This again seeks to ensure that the clinical director be given some possibility of saying his or her unit is entirely unsuitable or that the place needs to be closed down.

Michael McDowell (Dublin South East, Progressive Democrats)
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I have explained my view on that.

Joanna Tuffy (Labour)
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I move amendment No. 25:

In subsection (4)(c), in page 5, to delete lines 48 to 50 and in page 6, to delete lines 1 to 3 and substitute the following:

"is fit to be tried, the person shall be sent back to the District Court to enable the Court to exercise its functions under the Criminal Procedure Act 1967.".

We tabled this amendment because we believe that under the Bill as it stands, the return for trial process will be skipped. If the issue of fitness to plead is raised in the District Court matters proceed to the Circuit Court without adjudication on the merits of the case, which would be the normal procedure. That is not satisfactory and we have tabled this amendment to ensure they are sent back to the District Court for the court to exercise its functions as outlined.

Michael McDowell (Dublin South East, Progressive Democrats)
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The point made by Senator Tuffy is worthy of further consideration. It is a technical matter and I will consider it between now and Report Stage. I will again look at the interaction between sections 3(3) and 3(4) between now and then. In those circumstances I ask the Senator to withdraw her amendment for now.

Joanna Tuffy (Labour)
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I move amendment No. 26:

In page 6, subsection (5)(a), line 12, after "the" to insert "District".

We believe the word "District" was erroneously omitted. The section only makes sense if it refers to the District Court. We propose inserting the word "District" for clarity.

Michael McDowell (Dublin South East, Progressive Democrats)
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For once, I radically disagree with the Senator. Section 3(3)(a), in lines 14 and 15, provides that the District Court is referred to in this section as "the Court". This was not an omission but a deliberate drafting policy.

Mary Henry (Independent)
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I move amendment No. 29:

In page 6, subsection (5)(c), line 27, to delete "or" and substitute "and".

This appears to be the amendment on which there is some good news.

Mary Henry (Independent)
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I move amendment No. 30:

In page 6, subsection (5)(c), line 28, to delete "a specified" and substitute "the specified".

The court should know where the person is going. It should not refer to "a specified designated centre" and I propose changing this to "the specified designated centre". A decision should be made as to where the person should go.

Michael McDowell (Dublin South East, Progressive Democrats)
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The phrase is "a specified designated centre" and the Senator wants this to become "the specified designated centre". A specified centre must be specific. There will be no lack of specificity if we leave the indefinite article rather than the definite article in this case.

Mary Henry (Independent)
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It is unsatisfactory not to know where the person will go.

Michael McDowell (Dublin South East, Progressive Democrats)
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It has to be specified, which means the court has to be specific about it. The phrase "a specified designated centre" means one that has been specified. The definite article is not required, as it would not be specified if it had not been identified.

Mary Henry (Independent)
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I move amendment No. 32:

In page 7, subsection (8), line 9, after"alleged" to insert "excluding any reference to a specific intent".

I did not think it up on my own and was given advice on this matter as follows:

This has caused confusion and difficulty in the jurisdiction of England and Wales since "act alleged" can be taken to mean the offence alleged. Where the offence is murder, a person may be technically found to have committed murder when if found fit to plead they would have had available to them the defence of diminished responsibility (see R -v- Antoine [2000] UKHL 20;[2000] 2 All ER 208 (30th March 2000). Similar problems can arise even in relation to offences such as theft where the capacity of a mentally disordered person to form mens rea can be severely impaired e.g. due to significant intellectual disability. It is essential that this section should specify that "act alleged" does not include any element of the mens rea for the offence as charged. In the alternative, in each case the trial should proceed to consider whether the person accused at material time had the mental capacity to form the requisite intent.

Michael McDowell (Dublin South East, Progressive Democrats)
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Section 4(4) states:

Where on a trial for murder the accused contends—

(a) that at the time of the alleged offence he or she was suffering from a mental disorder such that he or she ought to be found not guilty by reason of insanity, or

(b) that at that time he or she was suffering from a mental disorder specified in section 5,

the court shall allow the prosecution to adduce evidence tending to prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may adduce such evidence.

Provision is made for a lesser offence, based on the absence of mens rea in that context. However, it is related to murder. The Senator's point is not confined to murder and there are many other cases where the mens rea is important, such as knowingly, deliberately or dishonestly doing things. The law uses various different degrees of mental intent to distinguish offences. I will consider this matter between now and Report Stage. I am not clear in my own mind whether the issue should be addressed generally and, if so, how this should be done. I am grateful to the Senator for raising the issue.

Mary Henry (Independent)
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I seem to have got to know far too many forensic psychiatrists. However, apparently it has caused difficulties in England.

Joanna Tuffy (Labour)
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I move amendment No. 33:

In page 7, between lines 11 and 12, to insert the following subsection:

"(9) Where a court hears evidence under subsection (8) and decides not to discharge an accused person, no report of such evidence or of such decision may be published until such time (if any) as the trial of the person concludes or until it is determined that the trial will not proceed.".

Under the provisions of section 3(8), if it has been determined that the accused person is to be tried, the court can consider whether there was reasonable doubt as to whether the accused committed the act alleged. If such doubt is established, the court could order the accused to be discharged. In cases where a court does not find that such reasonable doubt exists, but there is no full trial, the person could then subsequently be found fit to be tried. We believe that publishing the information that the judge did not have reasonable doubt as to guilt would be prejudicial to the defendant.

Michael McDowell (Dublin South East, Progressive Democrats)
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That is an interesting point. It could be damaging to an individual that a semi-trial or a half-baked trial would be determined against his or her interest. It could have residual effects on his or her good name or on any potential trial at a later stage. I can see the force of what is being suggested and in those circumstances, I would like to consider the matter further and come back to it on Report Stage.

Mary Henry (Independent)
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I move amendment No. 34:

In page 7, subsection (1), lines 16 and 17, to delete "a consultant psychiatrist" and substitute "two approved medical officers, one of whom is the relevant consultant psychiatrist at the relevant designated centre or the Central Mental Hospital".

Here we are again. I am trying to get some advice for the Minister and for the court from people who should be useful. However, I know what I will be told, that there is no need for them and the court will decide. I will let the Minister speak for himself.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am not attracted to the amendment on grounds that I have already stated.

Mary Henry (Independent)
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What a surprise.

Mary Henry (Independent)
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I move amendment No. 35:

In page 7, subsection (1)(a), line 19, after "disorder" to insert "(within the meaning of the Mental Health Act 2001)".

Again I refer to the Mental Health Act. It would be useful to have one form of mental disorder in the Bill, which ideally should be the same form of mental disorder as is covered in theMental Health Act. However, we are now working under the Minister's form of mental disorder and not the form of mental disorder specified in section 3. We have changed our forms of mental disorder and now have the Minister's form. I believe the form of mental disorder should be the same throughout the Bill.

Michael McDowell (Dublin South East, Progressive Democrats)
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In my view that would be a bad idea for the reasons I outlined yesterday.

Mary Henry (Independent)
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I move amendment No. 36:

In page 7, subsection (1)(b), line 26, to delete subparagraph (iii).

This is an important amendment. I have a copy of the third interim report of the Interdepartmental Committee on Mentally Ill and Maladjusted Patients. As far as I am aware, the McNaughton rules, when first published, did not contain a section on the defence of "irresistible impulse" and that it in fact arose out of case law. Many people believe it folly to include this in the Bill because everyone will be claiming they had an irresistible impulse to do something. For example, the Minister spoke yesterday of kleptomania. A constant plea of those who sexually abuse children is that they had an irresistible impulse to do so and could not stop themselves.

It is foolish to include such a provision in the Bill. It is not included in the legislation of any other country. It certainly is not included in UK legislation. I have been told that some states in America have included a similar provision. I suggest, no matter how great the wisdom of those judges who decided a person had an irresistible impulse to commit a particular crime, it is not wise to continue with the provision for such a defence in the Bill.

Michael McDowell (Dublin South East, Progressive Democrats)
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The Senator raises an interesting point. The purpose of the Bill in terms of the test for insanity for the purposes of criminal law is to restate the current position as it exists in judge-made common law. The third limb of the test for insanity as it exists in our law and, as set out in section 4(1)(a)(iii) of the Bill, is known as "irresistible impulse". It has lightly been referred to as the "policeman at the shoulder" case. In other words, would the person have still committed the act if a policeman had been standing right beside him. An affirmative answer indicates the test is met.

I stress that to constitute this form of insanity, the person must have had an irresistible impulse and not an unresisted impulse and it must arise from a defective reason due to a mental disorder. The defence of irresistible impulse was clearly accepted by the Supreme Court in the case of Doyle v. Wicklow County Council in 1974 although earlier cases had given indications that it might well form part of Irish law. In the 1994 case of the People, at the suit of the Director of Public Prosecutions v. Courtney, the Court of Criminal Appeal stated unequivocally thatirresistible impulse is a limited form of insanity recognised by our law.

The Senator may be interested to hear the following. In English law, the celebrated Criminal Law Textbook, from which I learned my criminal law many years ago, Kenny suggested that it had been overlooked that from earliest times the common law recognised an irresistible impulse of a temporary character as a ground of partial excuse in the case of homicide committed under the emotional stress of provocation. He cited early English authorities which suggest that an insane irresistible impulse should be admitted as a defence because it meant that the act was not voluntary. Since then, the English Court of Criminal Appeal rejected a defence of irresistible impulse. Senator Henry will be interested to know they described it as a fantastic theory which, if it was to become part of our criminal law would be merely subversive.

The English courts will not recognise an irresistible impulse as a symptom from which a jury might deduce insanity but the issue is not so relevant in the light of the statutory defence of diminished responsibility in homicide cases. The defence of irresistible impulse is not recognised in Australian law as an independent ground of insanity. There is much law on this issue but I will not waste the time of the House reading it out. The information is available in McCutcheon's Criminal Law, page 1,113 and following pages.

This fantastic theory is part of Irish law. The question is one of whether I should close it down. I have not attempted in this Bill to restate the common law test but to take it as a given and to restructure our law accordingly. What the English courts refer to as a fantastic theory has been solemnly confirmed on two occasions by the Irish courts. I would need to be heavily persuaded about the removal of this provision.

Joanna Tuffy (Labour)
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I move amendment No. 37:

In page 7, between lines 29 and 30, to insert the following subsection:

"(2) A special verdict under this section shall be a conviction but the powers of the court as to sentence shall only be exercisable if both of the following conditions are satisfied, namely——

(a) the convicted person does not require detention for treatment under this Act or such detention (if any) has been terminated, and

(b) the duration of such detention (if any) already undergone by the convicted person together with the sentence proposed to be imposed by the sentencing court is less than or equal to the maximum sentence for the offence concerned.".

This amendment refers to a special verdict in the case of a conviction. However, there is no special verdict in relation to a conviction and this amendment is not, therefore, necessary. Yesterday, the Minister mentioned he was retaining the reference to "insanity" to ensure there is a very high threshold for those giving such a verdict. There will be concerns, and have been in the past, that a person found not guilty by reason of insanity will possibly serve a short time in a psychiatric institution and will then be free to go. The doubts expressed in the past continue to exist. It is important the high threshold to which the Minister referred is in place. Presumably the legislation will be monitored as it progresses.

Joanna Tuffy (Labour)
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I move amendment No. 39:

In page 7, between lines 37 and 38, to insert the following subsection:

"(3) Where a person has been found guilty of an offence but, prior to passing sentence, the court becomes of opinion that the person is suffering from a mental disorder, the court, in imposing sentence, may direct that the sentence shall be served in a specified designated centre until such time as the person is no longer in need of in-patient care and treatment and shall thereafter be served in a prison or place of detention.".

The purpose of this amendment is to address the situation where a person has been found guilty but, during the trial process, it becomes clear to the court that the person is suffering from a mental disorder though not one which would result in him or her being found not guilty. In such a situation, it should be possible for the court to make an order on the care of that person. The matter has also been raised in some commentary on the legislation.

Michael McDowell (Dublin South East, Progressive Democrats)
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I have a difficulty with this point. What the Senator is speaking of is a person, during a court case, exhibiting symptoms of mental disorder or illness which would enable the judge to convict and sentence that person on the basis that he or she was able to understand the trial because of his or her fitness to participate in the trial but that he would order that a portion of the sentence be served in a psychiatric institution. That would effectively give to the judge the role now carried out by the Irish Prison Service on advice: that a person convicted and committed to its care should be treated psychiatrically. Such a provision would give to a judge, other than in the context of guilt or innocence or fitness to participate in a trial, a new right to state that although a person was properly tried and convicted and should serve a prison sentence, he or she should serve such sentence in a psychiatric institution. That carries many implications with it, since it suggests that psychiatric institutions are substitute jails. Serving a prison sentence in a psychiatric institution could characterise such institutions as something that they are manifestly not, which is a place for the incarceration of guilty people as punishment. I am not happy with that mixture of punishment and treatment which lies at the heart of this amendment conceptually. Someone could be guilty and require to be punished but be punished by being sent to a psychiatric institution. I am not convinced that is a good idea.

Joanna Tuffy (Labour)
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The amendment's intention was not that the person be sent to a psychiatric institution for punishment, but for care. The problem is that there would be a great many prisoners in need of such treatment. The Minister said that the Prison Service deals with that currently, but is it doing so satisfactorily?

Michael McDowell (Dublin South East, Progressive Democrats)
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My argument in that regard is that, even if that is the case and there are people to whom this could apply, one is saying to a judge that, in addition to all the other functions, he or she now also has jurisdiction to direct that someone whom one is sentencing should serve part of that sentence while receiving care in a psychiatric institution. That would require a very substantial panoply of advice and I would be tempted to say that Senator Henry's duo would certainly have to come along on that occasion and say whether they wanted to receive someone in those circumstances. On balance, it is better for the Prison Service to make decisions of that kind rather than the Judiciary. If the judge wishes to make a recommendation that someone needs psychiatric in-patient treatment and that the Prison Service should have regard to it, that is one thing, but directing that a person should be sent to such a facility while serving his or her sentence is replete with all sorts of implications that I simply cannot accept on the hoof.

Mary Henry (Independent)
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I move amendment No. 40:

In page 7, subsection (3)(a), line 38, after "if" to insert "having heard the evidence of the relevant consultant psychiatrist of the relevant designated centre".

We are back again to getting the advice of my friends and I have told the Minister already why I think he should accept the amendment.

Michael McDowell (Dublin South East, Progressive Democrats)
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Regarding amendment No. 40, and amendment No. 41 if it is moved, I have not changed my mind in the last few minutes.

Mary Henry (Independent)
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I move amendment No. 42:

In page 7, subsection (3)(b), line 49, after "so" to insert "subject to the agreement of the relevant consultant psychiatrist of the relevant designated centre or, in the case of the Central Mental Hospital, a consultant psychiatrist from that hospital".

I disagree with the Minister about these amendments since it is a good idea to have some idea whether those who will accept the person are able to treat him or her.

Mary Henry (Independent)
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I move amendment No. 43:

In page 8, subsection (4), line 10, to delete "for murder" and substitute "for any offence which on conviction carries a sentence of imprisonment".

I was not clear why the Minister decided on murder alone. Let us suppose that the person is accused of a serious crime such as rape or a serious assault which did not go as far as killing the victim, should the accused not also be in that position? Even for lesser offences, the District Court comes into the situation. Should the accused not be able to use this section too rather than only those on trial for murder?

Michael McDowell (Dublin South East, Progressive Democrats)
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Where, in a trial for murder, the accused contends that, at the time of the alleged offence, he was suffering from mental disorder such that he ought to be found not guilty by reason of insanity, or that at the time he was suffering from a mental disorder specified in section 5, the court shall allow the prosecution to produce evidence tending to prove the other of those contentions and may give directions as to the stage of the proceedings at which the prosecution may produce such evidence. The relevance of this is that murder is an offence with a mandatory sentence. With all other offences, one is either guilty or not guilty and if one is guilty, the question of the appropriate way to deal with one is addressed in sentencing. Murder is a special case, with a mandatory sentence attached to it, and that is why, in this case, the provision applies.

Mary Henry (Independent)
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I thought we were just about to bring in a mandatory sentence for drug dealing. We must anticipate matters.

Michael McDowell (Dublin South East, Progressive Democrats)
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The existing law covering drug dealing under the 1999 Act mentions exceptional circumstances, which I have exemplified. However, I do not want to go down that road with commercial drug dealing. Someone is either guilty of it or not. It is not necessary to have such a provision.

Mary Henry (Independent)
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I am not clear why that could not apply with other serious crimes for which a person might be given a very heavy sentence. Some sentences are longer than a life sentence; people normally serve about nine or ten years now.

Michael McDowell (Dublin South East, Progressive Democrats)
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The provision's purpose is to allow the prosecution in the specifiedcircumstances to adduce evidence regarding the mental state of the accused person. It is based on section 6 of the English Criminal Procedure (Insanity) Act 1964. It makes it clear that, if the defendant claims to be insane, the prosecution can try to prove diminished responsibility and, similarly, if the defendant pleads diminished responsibility, the prosecution can adduce evidence to prove sanity. Without that provision, there could be some doubt as to what evidence could be called by the prosecution in such cases. It merely facilitates the calling of evidence in certain cases.

Mary Henry (Independent)
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I move amendment No. 44:

In page 8, subsection (1), line 20, after "murder" to insert "having heard the evidence of two consultant psychiatrists".

I cannot remember why I thought this idea better than that of the Minister. My two friends advised me to table this amendment. It is better if one has a little advice.

Mary Henry (Independent)
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I move amendment No. 45:

In page 8, subsection (1)(c), lines 24 and 25 to delete all words from and including "not" in line 24 down to and including "was" in line 25.

This is the one where I could not work out why it was such a good idea.

Michael McDowell (Dublin South East, Progressive Democrats)
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If the Senator withdraws the amendment, she can retable it on Report Stage.

Mary Henry (Independent)
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I will resubmit it.

Mary Henry (Independent)
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I move amendment No. 46:

In page 9, subsection (3), line 39, to delete "consultant psychiatrist" and substitute "approved medical officer".

I cannot understand the reason the Minister has included the words "consultant psychiatrist" in the Bill.

Michael McDowell (Dublin South East, Progressive Democrats)
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There is a simple answer which might not be obvious, however. An "approved medical officer" is defined as somebody practising in the State. If we use the term "consultant psychiatrist", it will allow somebody from abroad to discharge the function. There is no great mystery about it. The term "approved medical officer" has the meaning assigned to it under the 2001 Act. One has to be geographically located in the Irish State. The term "consultant psychiatrist" which seems to mean the same thing does not carry that limitation.

Mary Henry (Independent)
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I thought we had managed to fix it up in the Mental Health Bill. This is a problem because when tribunals are being set up, allowance must be made for the inclusion of persons from another area. As I can see what the Minister means, I will withdraw the amendment.

Paul Bradford (Fine Gael)
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I move amendment No. 47:

In page 9, subsection (3), lines 42 and 43, to delete all words from and including "or if any" down to and including "been convicted".

I am interested in hearing what the Minister has to say about this amendment. I am talking about lines 42 and 43 of the Bill. Unless my understanding is incorrect, it appears that, under this provision, when an appeal is heard in the Circuit Court, the judge will be in a position to find persons guilty of offences in respect of which they ought to have been convicted. It is extraordinary that it can be declared a person ought to have been convicted of a charge which, if I am correct, may not have been laid during the original trial. Perhaps there is a good reason this provision should be inserted but it does seem to be an extraordinary power to give an appeal judge: that a person may, retrospectively, be found guilty of an offence in respect of which the judge decides he or she ought to have been convicted and presumably ought to have been charged with, even though neither applied.

Michael McDowell (Dublin South East, Progressive Democrats)
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There are references in subsections (3), (5), (8) and (9) in this section to "offences other than the offences charged". This is to take account of cases where a person charged with one offence may be convicted of a different one. If, for example, a person is charged with murder and found not guilty by reason of insanity and the Court of Criminal Appeal considers the applicant was suffering from a mental disorder but that the act in question would have amounted to a lesser offence of manslaughter, the court should still dismiss the appeal. Logically, if an amendment is proposed to subsection (3) which deals with appeals to the Circuit Court, it should also apply in other courts such as the Court of Criminal Appeal, as provided for in the other sections. I do not propose to accept the amendment. If one looks at the bottom, there is a bracketed phrase, "by virtue of the charge". It is not a matter of a judge saying, in effect, "I find you not guilty of rape but guilty of larceny". It only arises where there is a choice open on the charge.

Paul Bradford (Fine Gael)
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Will the Minister say if there is a precedent, domestically or internationally, for this type of provision?

Michael McDowell (Dublin South East, Progressive Democrats)
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I am told it is copied directly from an English provision.

Paschal Mooney (Fianna Fail)
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Amendment No. 87 is in the name of Senator Tuffy. Amendment No. 92 is related. They may be discussed together.

Joanna Tuffy (Labour)
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I move amendment No. 87:

In page 13, subsection (6)(h), line 46, after "oath" to insert "or affirmation".

This amendment seeks to include the word "affirmation" as well as "oath". The Minister may respond to the effect that this is covered by the Interpretation Act. However, we argue that it is not.

Michael McDowell (Dublin South East, Progressive Democrats)
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I was going to say something slightly different as regards the terms "on oath" and "or otherwise". The phrase "or otherwise" is sufficient to cover affirmation but I agree with the narrow point the Senator is making about the interpretation.

Mary Henry (Independent)
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I move amendment No. 91:

In page 14, subsection (6)(j), line 4, to delete "Review Board" and substitute "Mental Health Tribunal".

This again substitutes "Mental Health Tribunal" for "Review Board". We have discussed this substitution in other areas, and the Minister does not propose to use the mental health tribunals and save the taxpayer a great deal of money by having one organisation dealing with everybody.

Mary Henry (Independent)
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I move amendment No. 104:

In page 14, subsection (1), lines 29 to 34, to delete paragraph (b).

This might indicate I am trying to get jobs for my friends. It is not suitable to have the governor of a prison acting as a consultant psychiatrist, which the clinical director would be. This section only encourages the use of prisons as places of detention for mentally ill people, which we all agree is not a good idea. Such people should be in a hospital environment, which would be more therapeutic than being in a prison regime.

Michael McDowell (Dublin South East, Progressive Democrats)
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I cannot accept this amendment. The purpose of paragraph (b) is to provide for circumstances where a person is detained at a designated centre which is also a prison. As prisons do not have clinical directors, the duties and powers noted in section 12 are conferred on the governor as head of the prison. Provision is made for appropriate advice to be provided to the governor in the exercise of the duties and powers conferred by an approved medical officer who is a consultant psychiatrist. I will not pretend that prisons have clinical directors, but governors act on advice.

Paul Bradford (Fine Gael)
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I move amendment No. 115:

In page 15, subsection (7), line 42, to delete "disposal" and substitute "future".

This is simply a question of linguistics. This Bill has regard to the care of people who are in some way disadvantaged. To speak of a patient's "future" rather than a patient's "disposal" might sound a little more caring and appropriate. I am not addressing the Minister for the Environment, Heritage and Local Government, Deputy Cullen.

Michael McDowell (Dublin South East, Progressive Democrats)
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The word "disposal" is technically correct but may sound a little offhand. I do not have a thesaurus with me but I am trying to think of some other appropriate word. The word "future" is too vague, but between now and Report Stage I will come up with something less open to misinterpretation. Some unfortunate American person used the word "niggardly" on one occasion, and people who did not understand the word devoured him. Objectively, the word "disposal" is not offensive, but perception is everything in politics.

Don Lydon (Fianna Fail)
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Under section 12, can the review board recommend the discharge of a patient if it believes he or she is no longer liable to carry out a certain action? I have personal experience of the problems that can result from such a situation. The review board is often asked whether the person in question is likely to re-offend. One cannot give a definitive answer to that. Anyone in this Chamber could commit murder, although I hope none of us ever does. If a review board agrees that a patient is likely to re-offend, he or she is then detained. I have personal experience of a person being detained for 12 or 14 years, even though deemed by a number of psychologists and psychiatrists to be no longer insane following a year in the Central Mental Hospital. Is there any provision for a person to be discharged? I have been reading the Bill very quickly and may have missed some reference.

Michael McDowell (Dublin South East, Progressive Democrats)
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The powers that can be exercised include the power of making orders subject to conditions. There is no absolute certainty in this matter. To some extent one is looking into a crystal ball, and one cannot be certain as to what the future will bring. One must however make a fair decision regarding the person. Currently, such decisions are taken by the Minister for Justice, Equality and Law Reform of the day on the basis of advice available to him or her. It is undesirable that this should be the case, because such Ministers even on the best occasions have to look over their shoulders to consider what the media might say if they get things wrong. The tribunal will at least be regarded as separate from the political process, and it will be expected to act without regard to media sensitivities. I trust however that it will have to take into account the fact that public confidence in its decisions must be upheld. It is better that these matters be dealt with by a group rather than by someone who goes to bed that night wondering if he or she will be out of office the following day if a wrong decision has been taken.

Paul Bradford (Fine Gael)
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My question is probably more appropriate to Question Time in the Dáil, but we do not have such a facility here. The Minister for Justice, Equality and Law Reform has the onerous and serious responsibility of taking the final decision on this matter. On an annual basis, how many persons would be released from detention?

Michael McDowell (Dublin South East, Progressive Democrats)
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I have no idea offhand what the figure is as files appear regularly on my desk. However, these are not for the final release of individuals from the Central Mental Hospital but for approval of, for example, someone going on an annual holiday with or without supervision. I cannot give the Senator a rough estimate on the numbers of people who are the subject of a final decision. However, I can arrange to have a letter containing statistical information on the issue sent to him.

Mary Henry (Independent)
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I move amendment No. 128:

In page 16, before section 13, to insert the following new section:

13.—(1) In relation to any person remanded into custody or sentenced to imprisonment, the Minister shall—

(a) have the power to give a transfer direction if he or she is satisfied by reports from two registered medical practitioners, one of whom is a consultant psychiatrist on the staff of the Central Mental Hospital, that the person is suffering from a mental disorder (within the meaning of the Mental Health Act 2001) and is in need of in-patient care and treatment in the Central Mental Hospital,

(b) in the case of all remanded prisoners, the court shall be informed of the making of this order and that the person has been transferred to the Central Mental Hospital.

(c) at the request of the clinical director of the Central Mental Hospital, the Governor of the prison from which the prisoner was transferred shall provide for transport and security for court appearances or other purposes,

(d) the person shall be detained in the Central Mental Hospital for treatment and shall have the same protections and rights as are contained in the Mental Health Act 2001,

(e) if the person is a prisoner who is on remand he or she shall be detained in the Central Mental Hospital until sentenced by the court, and

(f) the person has been sentenced by the courts he or she shall be detained until the expiry of the sentence.

(2) In both cases the person shall be detained until the relevant consultant psychiatrist forms the opinion that the person is no longer in need of in-patient treatment or care at the designated centre and the consultant psychiatrist shall forthwith notify the Minister of this opinion; and

(3) Where the remanded or sentenced prisoner appeals successfully against his or her continued detention in the Central Mental Hospital to a Mental Health Tribunal, the Mental Health Tribunal shall forthwith notify the Minister of this decision and the Minister shall then order the return of the person to the prison from which that person was transferred.".

I welcome the provisions of section 13 because there are serious difficulties about the legality of the transfer of prisoners. All those in the psychiatric service to whom I have spoken are anxious that this whole area should be straightened out. However, my amendment proposes to change the wording of the section. I believe my wording is better than the Minister's. Some of the conditions are the same. The section is self-explanatory and as we are on the home strait, I do not wish to delay any more on this matter.

Michael McDowell (Dublin South East, Progressive Democrats)
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I agree that Senator Henry's proposed wording is preferable to the existing text. It was initially planned to amend this section but we held back. I propose now to deal with this issue on Report Stage. I hope to table an amendment resulting in as good, if not better, a wording than Senator Henry's for this section.

Mary Henry (Independent)
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I would be glad if the Minister were to do so because there are worries about the legality of this issue among those in the psychiatric service.

Mary Henry (Independent)
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I move amendment No. 131:

In page 17, subsection (7), lines 14 and 15, to delete "or an officer or servant of the designated centre".

I am concerned about sending an officer or servant of a designated centre to arrest an individual who may have absconded from a detention centre. The Garda has training in this area and unless some training is provided to an officer or servant of the centre, there will be complications. The last time I recall that an individual had to be arrested in these circumstances, he was running along the railway line in Inchicore, half naked. It may not be a good idea to send out workers from a psychiatric institution, without training in arresting people, after such people. The Garda is in a better position to control such a situation.

Michael McDowell (Dublin South East, Progressive Democrats)
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That may all be very well. However, take the example of a psychiatric institution staff member with an individual on a day visit who then escapes. If the staff member sees the person at a later stage and must then get a garda, he or she will lose sight of the individual. It is desirable that we are not inflexible in these situations. I will look at the amendment again but I am not convinced that the Garda should be the only force capable of carrying out these functions. There may be circumstances in which it would be dangerous to say that someone who is in a position to act cannot do so. Under criminal justice legislation, everyone has the power of arrest for an arrestable offence where the penalty is over five years. This is not the same case but I want to review the practicalities of making the officers or servants of the designated centre incapable of using power of arrest. One will be told, particularly by the trade unions, that the officers will walk on by in circumstances where they do not have the legal power to return an individual to the centre of detention. The common good may require that people in these circumstances must act.

Mary Henry (Independent)
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I would be grateful if the Minister reconsidered the amendment in these days of better communications with mobile telephones and the like. One frequently hears the Garda advising members of the public not to approach certain individuals because they are considered dangerous. I would not like psychiatric institution staff members to believe they had an obligation to arrest an abscondee and risk possible serious injury.

Jim Walsh (Fianna Fail)
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A Leas-Chathaoirligh, as there are only four amendments left, is it possible to fasttrack them to finish Committee Stage within the allocated time? Those amendments can then be re-entered on Report Stage.

Paddy Burke (Fine Gael)
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It is a matter for the Senators who tabled the amendments. It must be noted that amendments cannot be re-entered on Report Stage unless they have been discussed on Committee Stage.

Mary Henry (Independent)
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I move amendment No. 132:

In page 17, subsection (8)(a), line 22, after "custody" to insert "and the clinical director of the designated centre concerned may, if necessary, request the Governor of the prison from which the patient was originally transferred, or the Garda Síochána if the patient has not been in prison custody, to assist the members of the staff of the designated centre in the removal and supervision of the patient and the Governor or the Garda Síochána shall comply with that request".

This amendment seeks to have the Garda required to assist members of staff at designated centres with the transfer of patients.

Michael McDowell (Dublin South East, Progressive Democrats)
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I will examine that amendment for Report Stage.

Paddy Burke (Fine Gael)
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Amendment No. 133 in the name of Senator Terry is out of order as it involves a potential charge on the Revenue.

Amendment No. 133 not moved.

Paddy Burke (Fine Gael)
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Amendment No. 135 is an alternate to amendment No. 134 and they can be taken together. Is that agreed? Agreed.

Paul Bradford (Fine Gael)
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I move amendment No. 134:

Before section 14, to insert the following new section:

"14.—(1) Where in any proceedings against a person for any offence the defence intends to adduce evidence as to the mental condition of the accused, notice of such intention shall be given within 10 days of arraignment for the principal charge.

(2) Where the notice referred to insubsection (1) is not given within the period specified, without prejudice to any other provision of this Act evidence shall not be adduced by the defence as to the mental condition of the accused, without leave of the court.

(3) In determining whether to grant leave pursuant to subsection (2), the Court shall have regard to whether the accused or a person acting on his or her behalf mentioned any fact relied on in relation to mental condition of the accused in defence of those proceedings, being a fact which in the circumstances existing at the time the accused or a person on his or her behalf could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, then the court may draw such inferences from the failure as appear proper.

(4) In this section, notice of intention to adduce evidence as to the mental condition of the accused shall be in such form as rules of court shall provide.".

Michael McDowell (Dublin South East, Progressive Democrats)
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I have examined this amendment and intend to table an amendment on Report Stage to incorporate its proposals.

Paul Bradford (Fine Gael)
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I am disappointed I did not pretend it was my amendment and not Senator Terry's.

Joanna Tuffy (Labour)
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I tabled amendment No. 135 which is not necessarily an alternate to amendment No. 134. A similar notice provision could be retained. The Minister criticised amendment No. 2 because the term "mental condition" was used which he considered too wide. Amendment No. 135 proposes to replace the word "mental condition" and replace it with "mental disorder."

Paddy Burke (Fine Gael)
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When is it proposed to take Report Stage?

Jim Walsh (Fianna Fail)
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It is proposed to take Report Stage on Tuesday, 27 April 2004.

Report Stage ordered for Tuesday, 27 April 2004.

Paddy Burke (Fine Gael)
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When is it proposed to sit again?

Jim Walsh (Fianna Fail)
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It is proposed to sit again at 2.30 p.m. on Tuesday, 27 April 2004.