Seanad debates

Wednesday, 17 February 2010

Criminal Law (Insanity) Bill 2010: Second Stage


Question proposed: "That the Bill be now read a Second Time."

1:00 pm

Photo of John MoloneyJohn Moloney (Minister of State, Department of Education and Science; Minister of State, Department of Health and Children; Minister of State, Department of Enterprise, Trade and Employment; Minister of State, Department of Justice, Equality and Law Reform; Laois-Offaly, Fianna Fail)
Link to this: Individually | In context

I am pleased to initiate the Criminal Law (Insanity) Bill 2010 in the Upper House. In view of the reputation of this House for a strong interest in promoting the rights of the individual, I look forward to a high quality debate on the Bill, which has at its core the protection of such rights.

The purpose of the Bill is to make limited amendments to the Criminal Law (Insanity) Act 2006. The 2006 Act was a significant milestone in establishing a new statutory regime governing the way the criminal law deals with mentally ill persons who may have committed criminal acts. The Bill provides for amendments to two aspects of the 2006 Act. The provisions concerned are section 4 of the Act, which deals with the cases of persons who, because of mental disorder, may be considered by a court to be unfit to be tried on criminal charges, and section 13, which provides for review of detention by the Mental Health (Criminal Law) Review Board.

The review board was established by the 2006 Act as a new independent body to review the detention of persons detained in accordance with the Act. Section 13 provides that the review board should carry out regular reviews of persons who have been found to be unfit to be tried or not guilty by reason of insanity and who are detained by order of a court in a designated centre. The only designated centre at present is the Central Mental Hospital. The review board has the power to discharge persons from detention conditionally or unconditionally in certain circumstances. In this regard it must hear evidence relating to the mental condition of the person concerned from the consultant psychiatrist responsible for the person's care or treatment. It also must take into account the welfare and safety of that person and the public interest.

The main amendment to the 2006 Act concerns section 13. It arises from the fact that the review board, since its establishment, has been reluctant to order the discharge of patients who might be considered suitable for discharge subject to conditions because it has no statutory power effectively to enforce such conditions. This has resulted in difficulties, not only for the patients concerned, but also for the Central Mental Hospital, whose limited capacity is being used up by the retention of patients who might otherwise be considered for conditional discharge under the Act. The review board's view is that it should be possible under the Act to provide for enforceable conditions to be applied to conditional discharge to facilitate the effective use of such discharge. The 2006 Act envisaged a relatively black and white situation where a person either required inpatient treatment or the person was completely cured. The Minister for Justice, Equality and Law Reform accepts there is a category of patient who is suitable to live outside a designated centre but where, at least initially, safety and health considerations require an ability to return that person for inpatient treatment in a designated centre if there is any unforeseen deterioration in the person's mental condition.

Accordingly, this Bill provides that supervisory powers should be given to the review board to cover cases where a patient may still be suffering from an underlying mental disorder but whom it is considered safe to discharge, provided he or she complies with certain conditions. I might mention the 2008 judgment in the case of B v. Mental Health (Criminal Law) Review Board and others. In that case, the High Court ruled on a case taken by a person who was denied conditional discharge by the review board because it was of the view that it should only discharge the person if it had the power to impose enforceable conditions. The court agreed that the 2006 Act did not provide for enforceable conditions but held that the review board acted lawfully in refusing to discharge the patient. The case is currently under appeal to the Supreme Court. In addition, I am aware that another patient in the Central Mental Hospital, in a similar case, has made an application to the High Court under Article 40 of the Constitution.

A certain urgency attaches to the proposed amendment as a number of persons who might otherwise be considered for conditional discharge are not being so considered. The Central Mental Hospital must keep them, even if they are suitable for conditional discharge and even though it is under pressure for bed space.

The opportunity is also being taken to amend section 4 of the 2006 Act which allows a court to commit a person who may be unfit to be tried on a criminal charge to the Central Mental Hospital for an initial period of up to 14 days for the purposes of psychiatric examination. The main concern being addressed in the Bill is that the present arrangements may not be fully compliant with Article 5 of the European Convention on Human Rights which has been given further effect in our law since 31 December 2003 in accordance with the provisions of the European Convention on Human Rights Act 2003. To ensure such compliance, it is necessary to provide that a committal for examination can only be made by a court after hearing evidence from a consultant psychiatrist. Some additional improvements are also being made to section 4 which I will explain as I go through the detail of the Bill.

I will now outline the main provisions of the Bill. Sections 1, 2 and 4 are technical drafting sections. Section 3 amends section 4 of the 2006 Act. As I noted, section 4 is concerned with the procedures for dealing with a person who may have a mental disorder and thus be legally unfit to be tried on a criminal charge. In the absence of prior medical evidence on the issue, a court may commit the person for a period of not more than 14 days to a designated centre for psychiatric examination. This is so that the court can decide on foot of that examination whether the mental disorder, if it is present, renders the person unable to understand the nature or course of the proceedings on one or other of the several grounds set out in the Act. This initial referral may be made at present by the court without recourse to medical advice. It is proposed in section 3, in the light of detailed consideration of obligations under the European Convention on Human Rights in this area and the advice of the Attorney General, to provide that a court shall consider the evidence of an approved medical officer as to the person's mental condition before it decides to make an order to commit a person for examination at a designated centre. At present any examination has to take place on an inpatient basis. However, in the amendment proposed to be made by section 3 of the Bill, the court will be able to order that the examination be made on an inpatient or outpatient basis.

In providing for this amendment to section 4 the opportunity is also being taken to provide that the court may take account of the evidence of an approved medical officer to assist in determining the issue of fitness to be tried and also to facilitate an adjournment to allow the person to receive appropriate medical treatment. The latter should help to prevent unnecessary referrals to the Central Mental Hospital and give statutory recognition to informal diversion arrangements which I understand operate successfully at Cloverhill District Court.

There is a further matter which warrants consideration, namely, the possibility that centres other than the Central Mental Hospital could be designated for the purpose of carrying out examinations in accordance with section 4. This would ensure the Central Mental Hospital was not used for cases which could be dealt with in community hospitals. Accordingly, this option is being considered further in consultation with the Minister for Health and Children. In view of the relative urgency of the Bill, it was not possible to conclude consideration of this matter before publication of the Bill, but the possibility of bringing forward a Committee Stage amendment to this effect is being considered.

Turning to the provisions relating to conditional discharge, the first amendment relevant to this issue occurs in section 5 which amends section 11 of the 2006 Act to provide that the criteria to which the Mental Health (Criminal Law) Review Board must have regard in reviewing detention will also apply to reviews of the conditions of a person's conditional discharge and to applications for unconditional discharge from persons who have been conditionally discharged. The criteria are the welfare and safety of the person concerned and the public interest.

Sections 6 and 7 amend the 2006 Act to provide for enforceable conditions to attach to an order by the Mental Health (Criminal Law) Review Board for conditional discharge. The provisions provide for a comprehensive system in regard to the imposition of conditions, arrangements for supervision of the conditionally discharged person, provisions to facilitate variation of conditions, provision for the conditionally discharged person to be considered for unconditional discharge and arrangements for the return of the person to the Central Mental Hospital where there is a material breach of the conditional discharge. Importantly, provision is also made for the review of the detention of a person returned under these provisions to the Central Mental Hospital by the Mental Health (Criminal Law ) Review Board. Section 6 also amends section 13 of the 2006 Act to provide that the Mental Health (Criminal Law) Review Board can conditionally discharge patients under the new section 13A.

Section 7 inserts three new sections - 13A, 13B and 13C - in the 2006 Act. Section 13A creates a new scheme of conditional discharge. Subsection (1) provides that the Criminal Law (Mental Health) Review Board may make an order for the discharge of a patient subject to conditions, including conditions relating to outpatient treatment or supervision, or both.

Subsection (2) provides that the review board may only make a conditional discharge order where the arrangements in regard to a discharge considered necessary by the clinical director of the designated centre have been made. These include arrangements for facilitating compliance by the person with the conditions, the supervision of the person and providing for the person's return under section 13B if he or she fails to abide by the conditions.

Subsection (3) provides that the conditions must be communicated in writing to the person. The effect of the order and consequences of non-compliance with the conditions must be explained to the person.

Subsection (4) requires the person to comply with the conditional discharge order. Subsection (5) requires a copy of the order to be sent to the Minister for Justice, Equality and Law Reform and the clinical director of the designated centre.

Subsection (6) provides that the review board may vary or remove one or more of the conditions of the conditional discharge order, or impose further conditions, on application by the person or the clinical director. Subsection (7) requires notice of an application under subsection (6) to be given to the person and the clinical director where the application is not being made by the clinical director.

Subsection (8) provides that the person may apply to the review board for unconditional discharge after 12 months from the date of conditional discharge. The person may make subsequent applications, if necessary, so long as a period of at least 12 months elapses between applications. Subsection (9) sets out the procedure for dealing with an application for unconditional discharge.

Section 13B sets out the procedures that apply where a person is in material breach of a conditional discharge order. Subsection (1) provides that a person who is in material breach of a conditional discharge order will be deemed to be unlawfully at large.

Subsection (2) provides that a person is in material breach of his or her conditional discharge order where the clinical director of the designated centre, on reasonable grounds, believes the person is in breach of one or more conditions of his or her conditional discharge and that there is a serious likelihood of the person causing serious harm to himself or herself or others, or that the person may be in need of inpatient care or treatment.

Subsection (3) requires the clinical director to inform a person believed to be in material breach of a conditional discharge order in writing of this fact and the reasons for such belief. Subsection (4) provides that subsection (3) does not apply where the material breach is such as to give reasonable cause for the clinical director to believe there is a serious likelihood of the person causing immediate and serious harm to himself or herself or others.

Subsection (5) provides that the clinical director may make arrangements to effect the person's return to the designated centre, including requesting assistance from the Garda Síochána. Subsection (6) provides for Garda powers of entry and arrest for the purposes of section 13B.

Subsection (7) provides that a returned person must be given reasons in writing for his or her return. The provisions of the Act of 2006 will once more apply to the returned person, as they did when the person was originally committed to the designated centre under the Act of 2006 or the relevant provisions of the Defence Act 1954.

Subsection (8) provides that the clinical director must inform the review board of the return of the person and the review board must review the detention of the person as soon as may be. Subsection (9) provides a definition of the term "authorised person", which is relevant to the provision made by the new section 13C for externally provided assisted returns. The new section 13C is a technical provision to ensure staff of private agencies hired to effect the return of patients to the designated centre can be considered authorised persons for the purpose of section 13B. This provision mirrors an amendment made to the Mental Health Act 2001 to take account of legal difficulties in the operation of return procedures. Section 8 corrects a drafting error in Schedule 2 to the 2006 Act. Section 9 provides for consequential amendments to the Defence Act 1954. Section 10 provides for the Short Title of the Act and its commencement.

This is a relatively short Bill, the provisions of which are limited and are intended to ensure the difficulties I have mentioned can be corrected as quickly as possible. It is not in any way a Bill which represents a full review of the operation of the Criminal Law (Insanity) Act 2006. I understand the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, plans to have such a review commenced in his Department subsequent to the enactment of this Bill.

This Bill needs to be enacted as soon as possible to correct the difficulties mentioned. Accordingly, it is of necessity confined in its amendments to ensure it can be considered as quickly as possible by the Oireachtas. I look forward to hearing Senators' views on the Bill.

I commend the Bill to the House.

Photo of Eugene ReganEugene Regan (Fine Gael)
Link to this: Individually | In context

I welcome the introduction of this Bill and thank the Minister of State for presenting it to the House today. The Criminal Law (Insanity) Bill 2010 deals with two amendments to the Criminal Law (Insanity) Act 2006, namely, the fitness to be tried mechanism introduced in the 2006 Act and the lacuna in the law identified in a series of High Court cases. It is important and urgent that we address these matters.

On the first issue in terms of fitness to be tried, the Bill deals with issues identified in the Irish courts and, in particular, the European Court of Human Rights in regard to the need for the accused to be able to participate in the trial of the action. Article 6.1 of the European Convention on Human Rights provides for the right of a fair hearing in respect of a criminal charge and Article 6.3 sets out the various minimum rights for anyone charged with a criminal offence. An example is the Stanford v. United Kingdom where the applicant claimed he had not received a fair trial as he was unable to hear the proceedings. The T&V v. United Kingdom, the Thompson and Venables, case also raises this type of issue.

The Bill deals with the question of fitness to stand trial and with the issue of specialised medical evidence to be brought to bear in all cases resulting in psychiatric detention and for some time to determine the issue of fitness to stand trial, which should not be determined peremptorily without the ability of the parties to bring evidence to the court, in particular psychiatric evidence. The second major element is that of conditional discharge, a matter of certain urgency, in that the review board's directions do not have binding force under the current legislation. While the board has been operational for two years and has the power to make recommendations in terms of future care, in particular in an out-patient capacity, it does not have the power to make these recommendations binding. The judgment of Mr. Justice Hanna in the J.B. v. The Mental Health (Criminal Law) Review Board highlighted the problem that can arise in this type of case. I welcome that the Bill addresses this problem in sections 6 and 7. Section 6, which provides that any conditions imposed by the board, whether for further detention, care or treatment in a designated centre or for post-discharge supervision, will henceforth be binding, deals with that anomaly. Section 7 deals with the specific point raised by Mr. Justice Hanna in regard to conditional discharge orders being tailored to the requirements of the patient. I welcome the Bill, the passage of which will receive the support of Fine Gael.

3:00 pm

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
Link to this: Individually | In context

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Ivana BacikIvana Bacik (Independent)
Link to this: Individually | In context

I welcome the Minister of State to the House and apologise for not having been present for the entire debate as I was attending two joint committee meetings. On behalf of the Labour Party, I welcome the Bill which makes some sensible amendments. I would like to see some further amendments which I shall outline shortly. The Minister of State stated the Bill does not represent "a full review of the operation of the Criminal Law (Insanity) Act 2006", and clearly it does not constitute a full review of that Act. However, I am glad the Minister for Justice, Equality and Law Reform plans on having a full review once this Bill has been enacted.

I did some research on the 2006 Act and spoke on it a number of years ago in Trinity College at a conference on evidence-based mental health services for Ireland. I was very fortunate to hear from psychiatrists and medical practitioners who have a very different perspective to offer on this Act and also on the Mental Health Act 2001, which came into force on 1 November 2006. The implication of those Acts has been a welcome change in the focus of our mental health services. We have moved towards a more rights-based approach, which I very much welcome. I wish to quote Dr. Anne Marie O'Neill, who has written one of the leading texts on Irish mental health law, who pointed out:

[T]he philosophy of the law has progressed significantly from the days of incarceration and control of "lunatics" as a matter of public order when the issue of rights was considered anathema in the light of the "problem" to be solved. It has moved from this stage to a welfare philosophy where the state's intervention was perceived as benign and as in the interests of the welfare of the person with mental illness so that the issue of rights was considered irrelevant. Now it is faced with a new challenge: that of acknowledging that the recognition of the rights of the person with mental illness is an essential ingredient of the ethical carer/patient relationship.

Moving away from that incarceration model to the welfare model, we still have not moved fully to the recognition of the rights of persons with mental illness. However, we are moving that way and the Bill represents a step in that direction.

I shall make a few more general points before talking more particularly about the amendments in the Bill. At a general level, we have always seen in the criminal law - I speak as a practising criminal barrister - an uneasy relationship between the criminal justice system and the area of medical, psychiatric and psychological sciences. The criminal law is of particular relevance because there has been a relatively frequent occurrence of cases in which crimes have been committed by persons with mental disorders, often by reason of those mental disorders, as a result of which they may not have been able to form a requisite intent for a crime or they may not have had the capacity to understand the criminal justice process. In the criminal justice system we have wrestled with the difficulty of accommodating recognition of persons with mental illness. It is a matter of shame that so many persons with mental illness continue to be incarcerated in our prisons when in fact they require medical treatment.

We have seen the development of a defence of insanity at common law and very overdue reforms of that in the 2006 Act. However, although the 2006 Act is clearly more enlightened than the legislation that previously governed this area, it is most unfortunate that the 2006 Act and the Bill before us continue to use the judgmental and outmoded word "insanity" in the title, especially as our mental health legislation and our psychiatric services would no longer use that language. There is a corollary, which is that the relationship between the 2006 Act and the Mental Health Act 2001 remains somewhat unclear. In particular, different definitions of mental disorder are used in both. The 2001 Act, which governs the civil law aspects of voluntary and involuntary detention in psychiatric institutions, deals with a narrower definition of mental disorder as being a psychiatric disorder necessitating treatment, whereas the 2006 Act covers a much broader definition of mental disorder, governing persons who would not in the psychiatric sciences be regarded as suffering from psychiatric illness at all. To some extent there are inevitable differences between the definitions on the mental health side and the criminal justice side, which is unfortunate. Dr. Simon Mills, who has written extensively on the subject, said that retaining these two very different categories of so-called insanity or mental disorder may lead to difficulties. One of the difficulties is now being acknowledged in the Bill, which is that a person may be discharged from psychiatric care but subject to certain conditions. This was a major flaw in the 2006 Bill.

I wish to move to consider the first key reform in the Bill, which I welcome. It is the reform that will allow enforceable conditions to be applied to conditional discharge. As the Minister of State has said, the 2006 Act envisaged a rather black and white situation. Either the person required inpatient treatment or was completely cured. That neglected or ignored the reality in psychiatric care where there might well be persons who are capable of some sort of conditional discharge. I very much welcome the amendments to section 13 of the 2006 Act contained in sections 6 and 7 of the Bill which will allow conditional discharge subject to enforceable conditions. That will allow persons to be discharged. I note that the Minister of State has stated that there is a certain urgency attached to this in that persons are currently being detained when they should, if the law allowed it, be considered for conditional discharge. That is a very serious matter and I know there is litigation on it. I welcome those amendments and the conditional discharge principle is important.

The second important reform in the Bill is the one which I say does not go far enough. In his speech the Minister of State acknowledged that further amendments could be made. I refer to the amendment of section 4 of the 2006 Act contained in section 3 of the Bill relating to what was called the fitness to plead procedure. The procedure in section 4 of the 2006 Act used fitness to be tried to replace the old common law idea of fitness to plead. That change, allowing the judge to decide on the issue of fitness to be tried, was a very welcome reform. However, there were problems in the 2006 Act which are recognised in the Bill. Its failure to provide for medical evidence to be given to the judge was a difficulty.

Section 4 represented a serious improvement on what had been the case prior to 2006. Previously when a person was found unfit to plead - the old language - the judge had power to direct his or her indefinite detention in the Central Mental Hospital. Professor Dermot Walsh, a leading writer on criminal justice matters, had queried the constitutionality of this power and its compatibility with European convention. While section 4 represented a major change, section 3 of the Bill makes important further reforms in that a judge will now hear medical evidence in making the decision. The court can decide on foot of a psychiatric examination whether the mental disorder, if present, renders the person unable to understand the nature or course of proceedings, which is very important. I note the Minister of State said he undertook "detailed consideration of obligations under the European Convention on Human Rights in this area and the advice of the Attorney General". I am glad the examination may be made on an inpatient or outpatient basis.

However, the amendment overlooks the fact that a number of the fitness to be tried proceedings are still being tried in the District Court and relate to summary offences, that is, minor offences. However, the Central Mental Hospital remains the only approved centre. The Minister of State has said he wants to consider the possibility that centres other than the Central Mental Hospital could be designated for the purpose of carrying out examinations in accordance with section 4, and I believe amendment should be made to the Bill at this stage. I am grateful to hear the Minister of State say he possibly wants to table an amendment on Committee Stage, and I hope he does that in this House. It would be very useful to have this debated in full both in this House and in the Dáil. This is something I was going to raise, in any event, so I am glad the Minister of State has stated that. It would clearly be helpful to allow courts to send someone to any approved centre rather than just the designated one, the Central Mental Hospital, since the majority of cases at District Court level are minor. They have to be minor to be in the District Court, but it is inappropriate in many of these cases to send them to the Central Mental Hospital. I am conscious there is a traditional review currently before the courts challenging committal to the Central Mental Hospital under the existing procedure.

I do not believe the Minister of State mentioned the point as regards who the medical evidence is sought from where the judge is seeking to make a decision on fitness to be tried. Has he considered providing that medical evidence should be sought from the admitting hospital? Currently, that is from the Central Mental Hospital, but if he were to expand the category of designated centres, it could be from any of the designated hospitals. This would be an appropriate measure to insert in the Bill because it would provide a judge with a fuller picture in terms of where he or she was proposing to send the person. It would give a medical opinion from a different perspective and that, perhaps, would be a useful provision. I should like to hear the Minister of State's view and to whether he has considered that.

There are other issues which relate more broadly to the manner in which we treat persons with mental illness. The issue as regards the perspective we are bringing to bear on persons with mental health difficulties is vitally important. We have not, as yet, moved fully away from that welfare model, where as Anne-Marie O'Neill has said, we are regarding the State's intervention as always benign. We may recognise, in practice, in many individual cases that the State's intervention has not been benign. Our changing legislation, not just in the criminal justice area but in the Mental Health Act as well, reflects our growing awareness of the failure by the State to be benign in all cases where it has intervened in respect of persons with mental illness. We have a very shameful history of incarcerating large numbers of the population in industrial schools for children, Magdalen institutions for women and indeed in psychiatric institutions for persons deemed to have been mentally unwell. It is very much a positive development that we no longer adhere to that policy of incarceration, but there are some very chilling figures as regards the numbers that have been incarcerated in past decades. Colleagues in criminology in UCD and UCC have done a great deal of research on the large proportion of the Irish population that was detained in different institutions for so many decades. This is very interesting because for many years, we who as criminologists took a narrow view and looked at prisons, were congratulating ourselves that in Ireland a very low number of persons per thousand of the population were being detained in prisons. The true picture, however, is that we were detaining far more people in psychiatric institutions, Magdalen homes and industrial schools than was the case in other countries. Happily, we have moved away from the incarceration model and viewing State intervention as benign in all such cases. However, we still have to move to a fully rights based approach.

To explain what I mean by that I want to refer to Gerard Quinn's writing. He is a well-respected academic from NUI Galway, with an international reputation in the area of disability rights and law. He writes:

The human rights paradigm enables us to see more clearly the reality of the lives of people with mental disability. Viewing the issue of legal competence as a human rights issue centres the rights and abilities of the individual with mental disability in the determination, notwithstanding his or her difficulty or disabilities, in personally exercising those rights. The reality is that mental disability complicates but does not ruin human existence. Our law has yet to match this reality.

As he says, our law has yet to match the reality that mental disability should not always be seen as a problem. If we see legal competence, for example, in the fitness to be tried area, as a human rights issue, then we place the rights and abilities of the person who is potentially on trial at the forefront. If we look at it from his or her viewpoint, we then start to see, for example, the merit in a judge having access to a fuller picture of mental health when making a decision on fitness to be tried.

I ask the Minister of State to take on board what I have said in relation to the expansion of the categories of designated centres beyond the Central Mental Hospital and to consider, in particular, how the Bill will impact upon cases in the District Court. These are often overlooked, but in fact they form the vast majority of criminal cases and also deal only with minor offences. Where minor offences are at issue, then using the Central Mental Hospital as the only centre is akin to using a sledge-hammer to crack a nut. That is a completely wrong analogy to use, but effectively it is using a far too extreme institution, one that should not be used in respect of persons found not guilty by reason of insanity, for example, in respect of minor offences.

This is very much a Bill that is to be welcomed, but there are some aspects in which it could go further, particularly as regards the amendments to the fitness to stand trial procedure.

Photo of Dan BoyleDan Boyle (Green Party)
Link to this: Individually | In context

The amendment of sections 4 and 13 of the Criminal Law (Insanity) Act 2006 through this Bill is a welcome reform. As regards section 4, in particular, any doubt as to whether we are compliant with Article 5 of the European Convention on Human Rights needs to be removed. I am sure everyone in the House will see this as a progressive reform.

I note what has been said by Senator Bacik, and the Minister of State has indicated that there will possibly be further amendments to that section to remove that doubt even further. The introduction of the new plea, "not guilty by reason of insanity" to replace the existing "guilty but insane" and a new plea, "guilty but with diminished responsibility" go some way towards removing uncertainty in this area as well. Language can be pejorative, and much of the legislation that governed both mental health and areas of justice affecting mental health until very recently was based on 19th century legislation where terms such as "idiots" and "imbeciles" were very much a part of the corpus of those laws. The actual term, "insanity", is pejorative. While I realise it has a precise legal meaning, there will come a time in future legislation, I believe, when the term will have to be looked at and changed. The plea of diminished responsibility in relation to murder and the fact that we will need to look at the whole issue of capacity in any event in future legislation means we shall have a wider debate on this.

As regards section 13 and the changes proposed there, again there has been a degree of uncertainty. The improvement of mechanisms that will allow people to be released from the Central Mental Hospital on the basis of enforceable conditions will be seen by many as a progressive move and necessary in terms of liberalising legislation in this area. There will be very little disagreement, I believe, as regards the extent and type of changes being proposed in this Bill. However, it raises the wider question in regard to the grey area between justice and mental health policy. I am glad the Minister of State is present for this debate as I am aware he is personally committed to an ongoing review of the Mental Health Act, and proposals will be forthcoming in relation to this.

I have already mentioned legislation as regards capacity. It is very important that we look at the wider aspect of debates in this area and introduce the necessary reforms. Of course all we are doing is improving the legal mechanisms as regards mental incapacity and breaches of individual laws. The other side of this is the infrastructure that is in place to deal with it. Everyone accepts the Central Mental Hospital is not fit for purpose, needs to be moved to a new location and provided with facilities more in keeping with a modern psychiatric facility. Any delay in this, even if it were imposed by the lack of resources, would not do us proud in meeting the psychiatric needs of people who are imprisoned in the current facility.

I hope the review of the Mental Health Act will address the wider issue of the inconsistency of the grey area concerning mental capacity and those affected who find themselves in the judicial process. The only remedy so far for them has been incarceration in a facility far from being fit for purpose. If anything, it is not an alternative but a worse version of the prison system. I hope every effort will be made to alleviate this situation.

How does the Minister of State see this Bill fitting in with the other legislation in this area that will have to come to the House before the end of the Government's term? Has he a timetable for when these legislative loose ends will be tied up?

I thank the Minister of State for his initiative in providing in-house seminars for Members about section 59(1)(b) of the Mental Health Act 2001, the first of which will be held next week. The provisions of section 59(1)(b) have formed the basis of a Private Members' Bill that I and colleagues have put before the House. It is also important to have an ongoing debate on how we deal with mental capacity and treat people with psychiatric conditions with dignity.

I welcome the legislation and look forward to seeing the additional amendments the Minister of State will put forward. I believe the amended Bill will be all the better for these reforms. The sooner this legislation is enacted, the better as it will eliminate any uncertainties that continue to exist.

Photo of Feargal QuinnFeargal Quinn (Independent)
Link to this: Individually | In context

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

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

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

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

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

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

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

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

Photo of Lisa McDonaldLisa McDonald (Fianna Fail)
Link to this: Individually | In context

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

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

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

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

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

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

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

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

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

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

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

4:00 pm

Photo of Maria CorriganMaria Corrigan (Fianna Fail)
Link to this: Individually | In context

I join colleagues in welcoming the Minister of State. Senators referred to the fact this Bill is an effort to grapple with the balance between achieving justice and treating mental illness. It is very heartening that the Minister of State specifically responsible for both of these areas is in the Chamber and is to stay for the entirety of the debate.

As with my colleagues, I welcome the Bill. It is a very important step in ensuring we have regard to human rights. The circumstances that have obtained to date are not in anybody's interest. I refer in particular to circumstances in which individuals who may be ready for discharge from our only designated centre, the Central Mental Hospital, are not discharged because there is a lack of willingness to take responsibility for their discharge. There is concern over discharging because, as matters stand, one is either deemed cured and fit for release or not cured, in which case one must remain in the hospital. This does not really reflect the reality of mental illness. The individuals affected by the current regime are experiencing mental health challenges.

The proposals in this Bill would make provision for conditional release. It is not just a question of being released for a trial period under supervision because the conditions should stipulate the need for ongoing treatment. The proposals reflect the reality of mental illness and the supports that are required by those affected when making their way in society and trying to function to the best of their ability. They are to be welcomed.

Apart from making references to the practical difficulties faced by the Central Mental Hospital with regard to space and beds, the legislation offers the individuals concerned much better quality of life and a much better step forward. It is a step too far for one to resume normal life when supports are treatment are withdrawn quite suddenly on one's release from a supervised, structured setting such as a Central Mental Hospital. An individual in a psychiatric institution who is not legally detained would never be expected to make the step from hospitalisation to community living without any access to support. It is not realistic and was always likely to end in failure. The proposals in the Bill are much more realistic than the measures that now obtain and they offer a better chance of successful rehabilitation.

I feel the need to raise an issue that is not covered by the Bill. As a result of the present circumstances, there are in the system individuals who might have been fit for discharge a long time ago. However, because we were reluctant to release them because no conditions could be attached to their release, they were never released. The consequence is that there are a number of individuals who have become quite institutionalised and for whom discharge to community living has become a very distant and uncertain goal. Will the Minister of State consider what steps might be taken for those individuals?

Colleagues have raised the issue of capacity legislation, as I have done on numerous occasions. The Minister of State is very conscious of it. That legislation will have a very important role in the practical implementation of legislation such as that before the House and will have a bearing on the circumstances in which people find themselves.

With regard to capacity, while we are very clear about the fitness of people with mental illness to stand trial, there is a grey area in respect of those with an intellectual disability. There are individuals with an intellectual disability who have gone through the court system, received no support therein and were sentenced to imprisonment. Since they were not found to have a mental health disorder, they could not be admitted to a facility such as the Central Mental Hospital and therefore found themselves in mainstream prison settings. The Minister of State is very conscious of this, particularly in light of the plans for the future development of the Central Mental Hospital.

The mainstream prison setting is not one that a person with a mild or moderate mental handicap can be excepted to survive in or in which he can be expected to function safely. We need to address this. It will not be addressed solely by developing the new Central Mental Hospital and a similar forensic-type facility for people with intellectual disability. Legislation may have to be introduced.

One reason I raise this issue is because we have in the past admitted people with an intellectual disability to the Central Mental Hospital after their having gone through the prison system. We had very serious concerns over their ability to survive in the prison setting. When admitted to the Central Mental Hospital, they did not present with a mental illness but with an intellectual disability. They, too, have become institutionalised in the Central Mental Hospital. This is another issue for us to address.

The Minister of State said considerable demands are being placed on the Central Mental Hospital when determining whether somebody is fit for trial and when establishing an individual's mental health or well-being. He is considering the use of alternative settings and may revert to Senators on this subject on Committee Stage. If alternative settings can be used, they will be very welcome. Senator McDonald stated cases arise daily, from District Court level upwards, in which individuals who should have access to some form of psychiatric assessment are not afforded the opportunity because it is not always practical. I commend the Bill to the House.

Photo of Jim WalshJim Walsh (Fianna Fail)
Link to this: Individually | In context

I join other Senators in supporting the general thrust of this Bill. It is a short technical Bill, but nonetheless an extremely important one. It arises because of the Criminal Law (Insanity) Act 2006, which was a significant development and a milestone in dealing with this area of law. In particular, sections of the Act dealt with the fitness to be tried and the review of detention.

Since then it has become apparent that the powers of the review board in dealing with discharges was constrained in that it did not have the power of supervision of those conditional discharges and, therefore, issues regarding refraining from alcohol and drugs and taking particular medication were not appropriately defined.

As a consequence of the European Convention on Human Rights Act 2003, a possible lacuna was identified in the 2006 legislation. The Minister in this instance has moved to amend that and has made fairly sensible amendments which will obviously improve the operation of this area.

Indeed, only last night we had a debate at our parliamentary party meeting. Recently, the Minister of State, Deputy Moloney, has been very much to the forefront in much of the public debate in this area and has shown himself to be particularly committed to progressing a new vision for the treatment of persons with mental disability and ensuring the quality of the services which they can access, their living environment and their quality of life will be focussed upon and improved as a consequence of the initiatives and the commitment he has commendably shown since taking up office within the past year or so.

The Bill has to ensure that we do not contravene the European Convention on Human Rights Act by having persons in confinement without absolute due process and without clinical supervision. The Bill will provide that before committing a person to the Central Mental Hospital for examination, the court must first hear evidence from an approved medical officer and it can order that such be carried out, either on an inpatient or on an outpatient basis.

It also will deal with the issue where the review board since its inception was somewhat reluctant to release patients, even though it might have considered them suitable for discharge because there was a doubt about the statutory powers to enforce conditions. Obviously, the Bill addresses this appropriately.

I agree with the comments made by the Minister of State in his opening remarks, and also by Senator Corrigan, about the Central Mental Hospital and the need to ensure that it is able to function to its maximum potential. Obviously, it will be under strain because of the increased workloads that will be applying to it.

I welcome the fact the review board now will be able to make arrangements for the proper supervision of those patients. It is sensible that it can make the discharges subject to those conditions. The clinical director can make arrangements, including specifying the supervision of those particular patients.

I also welcome the fact that subsequent to the discharge the conditions can be varied by the review board on application by the clinical directors involved, and after a period of one year, the review board has the power to grant, refuse or change the conditions.

It is also correct because in all of this there is obviously the dignity and the entitlements of the individuals concerned to consider, but also regard must be taken of their safety and the safety of others as well in certain circumstances.

The Bill also provides that the person may be returned to a designated centre if the clinical director diagnoses that such is necessary because of some material breach of the conditions, and that would obviously subsequently be subject to the review board.

While it is short and technical legislation, it will impact positively on how this entire area is dealt with. I welcome and subscribe to the support other Members have given the Bill.

Photo of John MoloneyJohn Moloney (Minister of State, Department of Education and Science; Minister of State, Department of Health and Children; Minister of State, Department of Enterprise, Trade and Employment; Minister of State, Department of Justice, Equality and Law Reform; Laois-Offaly, Fianna Fail)
Link to this: Individually | In context

Before I reply to the specific points raised by the Senators, I acknowledge that this Bill is originating in this House. I hope all future Bills dealing with mental health and disability originate in this House. Clearly, and without saying it for the sake of saying it, given the level of compassion and interest in all aspects of issues that have caused a certain level of stigma in Irish society, it is better debated here where we have time to deal with the specific issues. Particularly from today's debate, I welcome the level of compassion of Senators and, more importantly, because compassion is only a small limited part of it all, the sense of urgency in trying to make the change.

I welcome also the way the debate has been treated. Before I go into the responses, I will make a few points. In November last, as mentioned here by one or two Senators, we were dealing with the issue of ECT treatment. It is important to make the point that I gave a commitment on that day that we would have a session, not as a briefing but involving persons from both sides of the debate to come in properly to speak with Members of the House. Those dates have been agreed for 23 February and 9 March, and I hope as many as possible can come. Quite obviously, it is a serious issue which will come before both Houses and we should be always properly briefed by both sides of the debate.

On 1 March, I propose to hold a press briefing in Government Buildings to outline how we intend to deliver on our commitments in A Vision for Change. While the temptation is there to extend the timeframe from the original proposal of seven to ten years, or to reduce the recommendation, I propose to stick with the timeframe and also with the recommendations. In the afternoon, I propose to hold a confidence-type function and to invite in persons from Amnesty International, the mental health coalition, the Joint Committee on Health and Children and all those Members who have an interest in seeing A Vision for Change.

On that morning, I hope to outline how we intend to deal with non-capital proposals in A Vision for Change - I see the director of mental health doing that - and the capital side will be dealt with by Mr. Brian Gilroy. Bairbre Nic Aonghusa will have the overall overarching brief to deliver on that day. It is important for myself as well to give the political commitments, and I intend to do so. On that day, I will first introduce the issue of how, in our campaign in April, we intend to deal with the elimination of the stigma attached to mental health, and that will be fronted by Mr. John Saunders. It is also important to say that I will come into the House specifically to deal with mental health issues on 23 March, and again to come forward with the stigma campaign in April.

To respond to the issues, first, I thank Senator Regan for his sense of immediacy in supporting the Bill and driving it forward. I thank him for the positive comments.

Senator O'Donovan raised a few issues regarding the review board. It is important for us to try to define the sense of urgency, and why. At present, the review board has the authority to release persons from the Central Mental Hospital, conditionally or unconditionally. The difficulty has been that, even though conditions may be imposed on the individual, there is no supervision or no legal framework for direct involvement in such supervision. There is a rush to ensure we will have such supervision. The clinical director of the Central Mental Hospital, Professor Harry Kennedy, regularly speaks about the pressure he and his staff are under in the provision of beds in the hospital. Owing to this change in the legislation, we may be in a position to free up five or six beds. That would be a welcome development for a hospital constantly under pressure to provide beds.

Senator O'Donovan asked about the composition of the board. It has three members, Mr. Justice McCracken, Mr. Michael Mulcahy, consultant psychiatrist, and Mr. Timothy Dalton, former Secretary General. A further question was whether there was a framework whereby the board provided an annual account of its work. There is an annual report which is available on its website.

Senator Bacik and others have mentioned the fact that the only centre available has been the Central Mental Hospital, while all Senators said they would favour an alternative system being involved. I was asked specifically by Senator Bacik and others about our commitment on this issue. Clearly, we wish to have other centres and to support the court diversion programme. The real issue will be to ensure we will have alternative locations.

Somebody referred to community hospitals, which I would fully support. I am not a legal practitioner but some Members of the House are. That people are referred from the District Court to the Central Mental Hospital is absolute nonsense. Certainly, if we have the provision to do it, we are committed to ensuring this process can be dealt with by way of community hospitals. That is one of the amendments I will bring forward on Committee Stage. "Approved medical officer" means a consultant psychiatrist. Senator Boyle also asked about bringing forward an amendment regarding the use of approved centres other than the Central Mental Hospital. I can confirm that I will be doing this.

I support the proposal referred to by Senator Quinn. He talked about the Canadian and Australian models and the use of the terms "mental impairment" and "mental disorder" rather than "insane". That is something on which we must move forward. We have set up a group chaired by John Saunders and comprising people such as the consultant Kevin Malone of Elm Park, Tony Bates, John Treacy, Ossie Kilkenny and many others who have given freely of their time to support the anti-stigma campaign. I am also hoping to use local radio and local media. Senator McDonald referred to the television advertisements. They are national advertisements but we need to involve local radio. I am already in discussions with local radio stations in the context of having a half hour programme each week about taking care of one's mental health.

I dislike using the word "brave" in the context of seeking mental health treatment because it implies that there must be a problem if one must be brave about it. There should not be such nonsense attached to it. I am hoping we can encourage people who might have made their name on the football or hurling field or local drama association - in other words, people who are well known locally - to come forward. I often make the point that a lad from Clonaghadoo or Ballyhuppahaun - Senators might not have heard of those places - might not connect with a national campaign but would connect with people in a local campaign if they knew of somebody who was prepared to go on local radio and say that at one time in their lives they had to seek mental health support. The trick is to show that people can do this and return as quickly as possible to their normal work or area of endeavour. I support what the Senator says. The campaign we are discussing undertaking in April will do this.

Senators also raised the issue of the location and condition of the Central Mental Hospital. I made it clear when we changed our minds about locating the hospital at Thornton Hall that we must provide a new central mental hospital. It is one of my commitments to firm up that proposal this year. I have also been asked to meet people at Portrane but I do not intend to meet anybody until I have the money stacked up. I hope to have it by way of a public private partnership to be agreed this year. It is essential to ensure we will have a properly functioning Central Mental Hospital. Unfortunately, conditions at present are not conducive either to recovery on the part of the patients or the well-being of the staff.

I accept the points made by Senator McDonald about the television advertisements. They are well worthwhile. It is something we must continue to promote.

Senator Corrigan made similar points and referred to the Mental Capacity Act. The most important point raised concerns the support available to persons who are discharged. That is the huge test. We must ensure people who are discharged, unlike in the UK model, will have supports available to ensure they will not be back on the streets or, worse, seeking full-time support from the health service. It is important that people discharged from the Central Mental Hospital are supported in the community. I praise the staff in the many centres and particularly the outpatients clinic at Usher's Island in Dublin which provides workshops, occupational therapy facilities and creative therapies. Perhaps we refer too often to A Vision for Change and rely on it to deliver everything. However, there is a commitment in it to provide four additional forensic community mental health teams, one in each HSE area. That is on the non-capital side, an issue which will be dealt with by Martin Grogan on 1 March.

I welcome the genuine commitment expressed by Senators. We have brought forward the Bill owing to the level of urgency attached to the amendments to sections 4 and 13. The Minister for Justice, Equality and Law Reform has committed himself to dealing with all the other issues involved in detail. I look forward to Committee Stage. With regard to the proposed amendments brought forward today, I realise they are substantial and relevant and will be taken on board by me and my officials. On that note, I thank my officials for their usual excellent briefing both before and during the debate.

Question put and agreed to.

Photo of Pat MoylanPat Moylan (Fianna Fail)
Link to this: Individually | In context

When is it proposed to take Committee Stage?

Photo of Maria CorriganMaria Corrigan (Fianna Fail)
Link to this: Individually | In context

Next Tuesday.

Committee Stage ordered for Tuesday, 23 February 2010.

Sitting suspended at 4.20 p.m. and resumed at 5 p.m.