Criminal Law (Insanity) Bill 2002 [Seanad]: Second Stage.

I move: "That the Bill be now read a Second Time."

I am pleased to open the Second Stage debate on the Criminal Law (Insanity) Bill 2002. The Bill was presented in the Seanad on 10 December 2002, considered in committee on 7 and 8 April 2004 and passed by that House on 19 April 2005 following detailed discussion on its provisions. Significant amendments were made to the Bill in the Seanad and I will deal with those changes later.

This is an important Bill in many respects because it deals principally with that area of the criminal law which is concerned with rules governing the criminal responsibility of mentally ill persons who may have committed criminal offences. It has been suggested that the defence of insanity raises the social protection role of the criminal law. The issue to be determined in these cases is the insanity of the accused person at the time the offence was committed. If accused persons are found to have been insane at that particular time, they will be subject to a special regime of detention, until such time as they no longer pose a danger to themselves or to society. Currently, this means the accused will be held in the Central Mental Hospital. This illustrates the first burden on the State in these cases. However, the State also has to balance this duty of protection with its responsibility to preserve and protect the rights of the accused person who has committed no crime in law. These are just two of the fundamental social and moral implications that arise in this area.

There is a third consideration which goes right to the heart of any debate on insanity and the criminal law. This is the moral distinction that must be drawn between those who are "bad" and those who do not have the mental capacity to commit crimes. This is where an important issue of policy comes into question and it is something that is at the centre of this Bill. This point has been expressed by two noted legal commentators, Finbar McAuley and Paul McCutcheon, in their work entitled, Criminal Responsibility. They state:

Legal and medical evaluations of the conditions that might properly attract the label of "insanity" can differ profoundly. The law regards several conditions, such as epilepsy and hypoglycaemia, that medical professionals do not classify as mental disorders, as a basis for the insanity defence. This highlights the different perspectives of the relevant disciplines and it should be realised that the defence raises a legal question of responsibility, not an issue of medical diagnosis and classification. Nevertheless, it is invariably the case that medical evidence is adduced at trial and, it can be assumed, is taken into account in the determination of the defendant's sanity. Thus, while a degree of congruence between the medical and legal evaluations can be expected, the ultimate resolution of the issue is one of law, not medicine.

This is a fundamental point and it illustrates why the Bill adopts two different definitions of"mental disorder", one for the purposes of the criminal law and the other for the purposes of dealing with the accused person following the court's arrival at a verdict of not guilty by reason of insanity or unfitness to be tried on the basis of the definition in the Mental Health Act 2001. As such, the defence of insanity raises complex issues involving the overlapping disciplines of law and medicine. In this jurisdiction, those rules are founded mostly in judicial decisions going back to the 19th century, with additional jurisprudential layers added in the meantime.

It is not surprising therefore that many calls have been made for clarity and legislative reform by judges, legal practitioners, legal commentators, academics and the medical profession, particularly those practising in the field of psychiatry. However, while the legal and medical definitions which apply here are not co-extensive, the approach adopted in the Bill takes into account the overlap between the criminal justice elements, and the need to have regard to the treatment aspects of mental health legislation. This arises particularly at the stage where a court, having arrived at a verdict of "unfitness to be tried" or "not guilty by reason of insanity", is considering the options available to it in a case. Incidentally, both terms will replace the existing verdicts of "unfitness to plead" and "guilty but insane".

The defence of insanity is, in fact, an acquittal but it is important to note that the plea is unique amongst the defences available to a person on a criminal charge in two important respects. First, the accused person bears the burden of establishing the defence. Second, even though a person is acquitted by reason of insanity, he or she nevertheless loses their liberty because up to now, they will invariably have been detained in the Central Mental Hospital. This will change when the Bill becomes law as it provides for detention in designated centres other than that institution. As the two commentators I have mentioned state: "The defence marks a crucial boundary between those whom the law considers responsible, and therefore answerable for their conduct, and those who are not responsible but require treatment."

I will now deal with the provisions of the Bill. To appreciate fully the importance of and need for this legislation, it should be noted that most of our legislative provisions dealing with criminal insanity date back to the 19th century, some to the early 1800s. The main purpose for introducing this legislation is to clarify, modernise and reform the law on criminal insanity and fitness to be tried and to bring it into line with the jurisprudence of the European Convention on Human Rights. The Bill, as introduced, contains extensive new provisions dealing with fitness to be tried and new rules relating to appeals against such findings; a statutory definition and restatement of the test of criminal insanity as it is understood in common law; a new verdict of "not guilty by reason of insanity" and a new plea of "guilty but with diminished responsibility" in cases of murder; and the establishment of a new review body — the Mental Health (Criminal Law) Review Board.

The Bill implements the main recommendations of the third report of the interdepartmental committee on mentally ill and maladjusted persons, the Henchy committee, which was published in 1978. Given that it is now 2005, it has taken some time to develop the proposals in that report and convert them into law. Deputies will be aware that a Bill was appended to the back of that report and might wonder why it was not enough to produce an earlier result. Some explanation for the delay can be attributed to the fact that priority was given by successive Governments to making fundamental changes in the civil law relating to mental illness as ultimately expressed in the Mental Health Act 2001.

A person's state of mind in criminal law proceedings is relevant in two ways. First, the person must be mentally fit to plead to the charge. If it is shown that the person, because of insanity, is unable at the time of the trial to understand the charge against him or her, the difference between guilty and not guilty or is unable to instruct counsel or to challenge jurors, the trial cannot proceed, essentially because its fairness cannot be guaranteed due to the person's condition. The test at common law to be followed in such instances was laid down by the Supreme Court in the State in Coughlanv. Minister for Justice in 1968. This test is not limited to any particular definition of insanity. It simply assesses the person’s ability to comprehend what is going on at the time of the proceedings. If the person is found to be unfit to plead, section 17 of the Lunacy (Ireland) Act 1821 provides that he or she should be detained in strict custody until the pleasure of the Government be known.

Second, where the person is found fit to plead, the trial will proceed but the person may raise the defence of insanity. The law will presume that the person is legally sane and, if over the age of 14, is fully accountable for his or her actions. However, if the person is able to show, on a balance of probabilities as opposed to beyond reasonable doubt, that at the time the offence was committed, he or she was legally insane, he or she will have a defence to the charge. In these circumstances, the person will be deemed to have lacked the necessarymens rea or mental capacity to commit the crime as charged and will not, therefore, be held accountable. The test applied here is based on the M’Naghten Rules, which were originally laid down in 1843, and subsequent case law. At present, the law requires that it must be shown that a person must have suffered, at the time of his or her act, from a defect of reason due to disease of the mind so that he or she did not know what he or she was doing, or did not know that it was wrong.

I will now provide Deputies with an overview of the provisions of the Bill.Section 1 deals with definitions and two matters are particularly worthy of special mention. The first concerns the definition of designated centre which is further explained in section 2. This section follows section 5 in the draft Bill proposed by the Henchy committee and it provides that it is a matter for the Minister for Health and Children in consultation with the Mental Health Commission, or the Minister for Justice, Equality and Law Reform in the case of the designation of a prison as such a centre, to decide where is the most appropriate place for the treatment of persons committed to detention under the Bill. The designation of a prison as a designated centre, which was not recommended by the Henchy committee, is included to cater for rare and exceptional situations where it might be considered appropriate in all the circumstances to detain a person in a prison rather in a psychiatric hospital.

Section 2 was amended in a number of respects in the Seanad. First, it now provides that the Central Mental Hospital is a designated centre for the receiving, detaining and providing care or treatment to persons under the Bill. Second, it now covers inpatient facilities which are not necessarily hospitals. Third, the section now requires the Minister for Health and Children when designating a centre other than a prison to consult the Mental Health Commission. Senator Henry in the Seanad suggested that that Minister should consult the Inspector of Mental Health Services but, following consultation with the Minister for Health and Children, we opted instead for the commission as the most appropriate body in these cases.

The second issue arising from section 1 concerns the definition of the term "mental disorder" which is defined for the purpose of findings of "unfitness to be tried" in section 3, "not guilty by reason of insanity" in section 4 and "diminished responsibility" in section 5. It is a definition for the purpose of establishing criminal liability. It is not the civil definition for the purpose of detaining somebody in or committing somebody to a mental hospital. It includes a person suffering from a mental illness or handicap, dementia or any disease of the mind but excludes intoxication by alcohol or other substances. While the definition is not fully inclusive, the essential element for the court, for example, where criminal insanity is pleaded, is whether the accused had themens rea to commit the offence for which he or she is charged. The definition of mental disorder plus the criteria in section 4 are intended to be the test for the court in coming to a decision on that issue.

The definition of "mental disorder" was the subject of lengthy debate in the Seanad where strong views were expressed that the definition should be the same as that provided for in the Mental Health Act 2001. I went to great lengths in that House to explain why this could not be so and I have no doubt that I will have to repeat myself in this House. While I will not get into the detail, I profoundly disagree with the proposition that there should be an alignment of the two definitions. The purpose of the Mental Health Act 2001 is to govern the circumstances in which people can or cannot be admitted to psychiatric institutions against their wishes and to set a framework for the treatment of patients with mental illnesses. The purpose of this Bill is radically different in that it seeks to establish a mechanism for decisions by the courts that people are to be excused criminal responsibility in certain circumstances and to deal with other issues such as inability to plead and so on. There should not be any spillover effects between the two areas of law.

If the two definitions were aligned, a judge in a civil matter, dealing with whether somebody was properly committed to prison and interpreting the law in that context, would in effect be deciding what the law meant in the context of a defence of diminished responsibility or a plea of not guilty by reason of insanity or a decision as to whether a person was fit to plead. The idea that the two definitions should be used does not withstand much argument on close examination. We are talking about two different things and there are reasons, as is clear from the report of the debate in the Seanad, that in some respects the legislation would be unworkable if there were the same definition for both purposes.

Section 3 deals with the issue of fitness to be tried. This term is being adopted instead of the term fitness to plead which is used in the relevant provisions of the Lunacy (Ireland) Act 1821 and which are being repealed. The section contains a new statutory definition of fitness to be tried based on the existing common law on which I have already commented. It provides that the question of fitness to be tried will in future be determined by a court, including the District Court, without a jury. It does not relate to the guilt or innocence of a person. If the person is found unfit to be tried, the proceedings will be adjourned and the court will then determine how the person should be dealt with until such time as he or she has recovered, if ever. As the person will not have been found guilty of any crime, he or she will only be detained if he or she is likely to be dangerous to himself or herself or to others, or in need of inpatient treatment.

Safeguards are provided in the section to reduce the possibility of persons found unfit to be tried being detained unnecessarily under the criminal law. In effect, these provisions provide that where, despite the fact that the accused is unfit to be tried, the court is satisfied that there is a reasonable doubt that he or she committed the act alleged, it will acquit him or her. In other words, a person who is clearly before a court in circumstances where unfitness is an issue can nonetheless be acquitted of the offence if the court decides that on the facts the person would, if he or she were fit to plead, be entitled to acquittal in any event. It will then be a matter for the relevant authorities, under the civil law, the Mental Health Act 2001, to take whatever measures they may deem necessary in the case of the person concerned.

The provision was amended in the Seanad by including a new ground for unfitness based on a person's inability to elect for trial by jury in a case involving an indictable offence. An amendment was also made to reduce from a period of 28 days to one of 14 days the initial holding period for assessment in section 3(6)(a)(i). Also in section 3, following a point made by Senator Tuffy in the other House, two further subsections (9) and (10) were added to protect an accused person by providing for the non-publication of a report or evidence in a case where a court decides not to order their discharge in circumstances where the procedure laid down in subsection (8) is applied.

Section 4 provides for a new verdict of not guilty by reason of insanity to replace the existing special verdict of guilty but insane and sets out the parameters of the test for insanity which is based on the existing common law position including recent Irish case law. The existing phrase guilty but insane has always been regarded by lawyers as an acquittal despite the language which very much gives one the other impression. I emphasise again that the test to be applied will be related to the time of the alleged commission of the offence and not the time of the trial.

The section also provides that after a verdict of not guilty by reason of insanity is returned, the court will then consider the mental condition of the person by reference to the Mental Health Act 2001 to determine whether he or she should be released or detained on the grounds that inpatient treatment is required or because the person may be dangerous to himself or herself or to others because of his or her mental condition. This approach is in accordance with obligations arising under the European Convention on Human Rights. Once one is acquitted the test as to what is done with one then is dealt with on the same basis as a decision would be made as to whether to commit one to a mental hospital under the ordinary civil law.

Section 5 introduces the concept of diminished responsibility into Irish law. It is only being applied in the case of murder, which carries a mandatory sentence of life imprisonment. Obviously one could apply it to other serious offences but since sentence is variable in those cases, there is no requirement to do so because the judge can take it into account by varying sentences, which are left in his or her discretion. There is no need to apply the concept in the case of other crimes because there is no mandatory sentence in those cases. In those instances the judge can at present take into account the mental condition of the convicted person when considering what sentence to impose.

The effect of this new rule will be that if diminished responsibility is successfully pleaded, a conviction for manslaughter will be recorded, with the sentence, at the discretion of the court, being any term up to imprisonment for life. The availability of the diminished responsibility verdict provides an alternative for juries and should reduce the danger that a jury will return an insanity verdict when faced with a person whom they regard as not being completely sane, even if he or she does not meet the legal criteria for acquittal on grounds of insanity.

Sections 6 and 7 deal, respectively, with the question of appeals to higher courts from decisions of lower courts that a person is unfit to be tried or is not guilty by reason of insanity. Under existing law findings of unfitness to plead/fitness to be tried or verdicts of guilty but insane are not regarded as convictions and consequently there is no provision for a person to appeal against them.

Section 8 provides that appeals may be made by the defence or the prosecution against a decision of the court of trial to order or not to order the detention of a person in these cases.

Section 9 provides for the establishment day in so far as it relates to the establishment of an independent Mental Health (Criminal Law) Review Board provided for in section 10 and Schedule 1 to the Bill. The title of the board was amended in the Seanad to include the words "(Criminal Law)" so as to distinguish it from the new oversight bodies established under the Mental Health Act 2001, namely, the Mental Health Commission and the Mental Health Tribunals.

The background to these provisions is that the Court of Human Rights has ruled that on the detention of persons of unsound mind, whether under the civil or the criminal law, the availability of some independent system of review of the lawfulness of detention is required to comply with the provisions of the Convention on Human Rights. The Mental Health (Criminal Law) Review Board as proposed in the Bill, will replace the existingad hoc advisory committee which works to the Minister for Justice, Equality and Law Reform and, to comply with our obligations under the convention, will act independently of the Executive in future. It will no longer be an advisory committee giving the Minister for Justice, Equality and Law Reform its opinion for him to decide whether he accepts it. The review board’s main function will be the regular review of the detention of persons found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by order of a court.

The board will be made up of a chairperson, who must be a practising barrister or solicitor of not less than ten years' experience or a judge or former judge of the Circuit Court or superior courts, and such other number of members as the Minister in consultation with the Minister for Health and Children shall appoint, at least one of whom must be a consultant psychiatrist. The term of office of members is five years and provision is made for reappointment. It is provided that the Minister may appoint the staff of the board under the usual conditions and that such staff shall be civil servants.

Section 11 sets out the various powers of the board. Those powers include the power to hold sittings, take account of court records, assign a legal representative to the person seeking review, require the attendance of such person before it, obtain evidence and demand the production of information and documents, pay the reasonable expenses of witnesses and administer oaths. The failure of persons to attend before the board or to comply with requests by the board for information or documents, or where a person is in contempt of the board, are offences punishable by a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both. Therefore, the board has teeth.

Section 12 deals with the various ways in which the detention of persons found not guilty by reason of insanity or unfit to be tried, whether they are in a prison or other designated centre, including persons detained under military law, may be reviewed. This applies, in the case of a prison, to the governor who shall act on the advice of an approved medical officer, and in the case of, for example, a psychiatric hospital, the chief medical officer. The review board has the responsibility for ensuring that the detention of such persons is reviewed six monthly or at such lesser intervals as it considers appropriate. In cases where a person who has not been acquitted is no longer unfit to be tried, the court of committal has to be so informed and shall order that the person be brought before it to be dealt with as the court thinks proper. In the case of detention under military law, the appropriate authority has to be similarly informed so that the court martial shall be reconvened.

Section 13 provides for the temporary release and transfer of and other matters related to detained persons. The purpose is to arrange for such matters without the need to apply to the review board every time. It is provided that the consent of the Minister must be obtained to ensure that the public interest is safeguarded. The Minister for Health and Children might also have an interest, particularly in the case of transfers to another designated centre, and that is also covered in the section. The wording of section 13(7) was amended in the Seanad so as to place a positive obligation on the Garda to arrest persons unlawfully at large. I am not prepared to remove from the Bill the discretion regarding the arrest of a person allowed to the staff of a designated centre in such circumstances, in line with section 27 of the Mental Health Act 2001. It may well be the case that practicality, expediency or the common good may require them to act also, having regard at all times to any risk to their own safety.

Sections 14, 15 and 16 were inserted in the Bill in the Seanad. Sections 14 and 15 relate to the complex question of transferring persons suffering from a mental disorder from places of detention to the Central Mental Hospital for treatment and back again, and matters related thereto.

An important point must be made in this regard, namely, that this area of the Bill is designed to deal principally with persons who have been found guilty by a court of committing a crime or who will be in the initial stages of the criminal justice process. The onset of their mental illness will have arisen during their period of imprisonment and is not a matter that will have had to be addressed during their trial. The provisions are expressed to apply to persons who are in prison on foot of a sentence of imprisonment, on committal awaiting trial, on remand or otherwise. In other words, such persons will be involved in the criminal justice process in the ordinary way, namely, on the basis that the question of their sanity, and thus their legal capacity to commit a crime, will not have been in issue.

This has been a matter of concern to me and my Department for some time and it was my original intention to deal with it in the Prisons Bill, which was recently published. However, as the matter is appropriate to this Bill, the Government decided to include the appropriate provisions in it to ensure their earlier enactment into law. The current procedures involve certificates by psychiatrists, processes of certification and de-certification and the making of transfers by the Department from prisons to the Central Mental Hospital. These procedures are out of date and confusing in their operation, to say the least, and need to be regularised. The three new sections inserted in the Bill are intended to deal with the shortcomings of the existing arrangements by streamlining the administrative formalities.

I will not go into any more detail at this time as there will be ample opportunity to discuss these issues on Committee Stage. However, I emphasise that the present situation is indefensible and unworkable. It must be the case that if a person becomes psychiatrically ill while in prison, there is an effective and speedy transfer of that person to appropriate therapeutic conditions. I have personal experience of seeing people lying in padded cells while their fate is being cogitated upon. It is not a happy sight. While padded cells will be gone from every institution in the State by March, nonetheless, the notion that people can be in some kind of limbo while others argue about which institution should accommodate them is not acceptable and was the subject of negative commentary from the Committee for the Prevention of Torture which visited Ireland.

Section 16 provides for the mechanism by which the case of a person who develops a mental illness while in prison can be reviewed by the mental health review board. This may be requested by the Minister for Justice, Equality and Law Reform or by the person themselves or on the initiative of the review board itself.

The purpose of section 17 is to ensure that evidence as to the mental condition of an accused person shall not be raised by the defence during the course of a trial unless notice of intention to do so has been given to the prosecution in accordance with rules of court. This is designed to ensure that neither the prosecution nor the court will be ambushed by the surprise production of such evidence at a late stage in the trial process.

Section 18 applies the provisions of the Bill on the review of detentions to persons already in detention before the Bill comes into operation. Persons for whom I at present exercise responsibility, advised by a committee, will come under the new system.

Section 19 deals with consequential technical changes to the relevant provisions in military law — the Defence Act 1954, as amended — to maintain consistency between courts martial and the non-military criminal law. Section 20 is the usual expenses provision. Section 21 provides for grants to be made to the review board established under section 10. Section 22 is a repeals and transitional provision to be read in conjunction with the Second Schedule while section 23 provides for the Short Title and commencement of the Act. The First Schedule sets out the provisions applicable to membership of the mental health review board and its procedures. The Second Schedule provides for the necessary repeals.

The Bill is an important step in the development of statutory rules and guidelines in a difficult and complex area of the law. On my appointment as Minister in 2002, I decided that this matter would be finally dealt with during my tenure as Minister. The issue has been in the broader legislative process for too long — a quarter of a century or more — and now is the time to bring it to finality.

The Bill seeks to achieve a fine balancing act between the need to protect society at large while also seeking to protect members of society who suffer from mental disorder so that they will not be answerable for crimes which they had not the mental capacity to commit. The Bill also seeks to ensure that those detained under the provisions of the legislation have access to a body independent of the Executive of the day and independent of the pressures that weigh on members of the Executive through newspaper coverage, from victims' relatives and the like, which will ensure that those detained have an objective and dispassionate mechanism to help them to arrive at decisions. This independent body will keep their detention under continuing regular review and, in doing that, will ensure that our international human rights obligations in this sensitive area are respected. At present, the existing informal arrangement is our best effort in a bad statutory situation to accord international human rights standards to people caught up in the process in the way referred to in the Bill. The Bill is urgently needed. I commend it to the House.

On behalf of the Fine Gael Party I am glad to support the Bill. It is not before time that we have the opportunity in the House to debate this complex area and the modernisation of our law. As a law student I was indoctrinated in the principles of the M'Naghten rules which dated back to the early part of the 19th century. It does us no credit as a Legislature that it is only now that we are updating the law in this regard. In the meantime, the courts have developed jurisprudence in this area which has softened the harshness of the old common law.

The Bill can be considered in a non-political context as it does not involve party politics. Therefore, any comments I make are not made from a party political perspective, although the following might be construed as such.

I note the Bill was originally circulated in 2002, which raises the question of why it should take so long — almost three years — to reach the floor of the Dáil. One of the reasons I make this point is owing to an appreciation of the pressures on Dáil time. Every year when we adjourn for the Christmas or summer recess, there are ritual protestations on the length of time of the adjournment. To make a serious point, if the problems in regard to Dáil time are the reason for not having serious, complex Bills of this nature dealt with by the House, we must in a non-political way stand back and consider the ridiculous number of days for which the Dáil sits. I say this apart from the ritualistic formulae that are produced when we are all rushing home for Christmas.

As legislators, we should be permitted to take our job more seriously. Decent time should be allowed in the Dáil for proper consideration of complex, non-party political Bills of this kind. This time is not available.

I accept the broad thrust of the Bill in so far as it affirms and codifies common law decisions on criminal insanity. What is attempted in the Bill, building on the Henchy report of more than 25 years ago, is an attempt to put into law a more understanding approach to the problem and one grounded on more modern medical and legal knowledge. These issues are dealt with in the Bill in so far as is possible. However, it is a complex area. There is a question in many instances of balancing the situation between the condition of the person accused of a crime and the position of the victim. Having been somewhat critical of the legislative process, I note the Bill was carefully teased out in the Seanad with some useful additions to its provisions. However, having looked at the Official Report of the Bill's deliberations in the Seanad and the observations of the Irish Human Rights Commission, it is difficult to see how far the concerns expressed have been reflected in the Bill as amended.

I was particularly taken by Senator Henry's contribution, who has a major insight into these issues. She pointed out that while we are focusing in the area of diminished responsibility on matters going before the Central Criminal Court, should a similar plea be permissible in other courts. The Minister stated that in the case of a verdict of diminished responsibility, which I support as we are really bringing ourselves in line with other countries, it is confined to murder. Should it be so confined? I accept murder carries a mandatory life sentence and if successfully pleaded under diminished responsibility, a conviction for manslaughter will be recorded. However, there must be other criminal cases where the accused has diminished responsibility. I am not sure it is enough to say that the judge can take that into account. Is there a case for providing for such a plea of diminished responsibility in other criminal cases as it puts an unfair onus on the judge?

The plea of diminished responsibility will be decided by a jury and it is a matter for the jury then to decide if there was diminished responsibility leading to the possibility of the conviction of manslaughter rather than murder. The Minister stated that this will not be applied in other cases because the judge will have the opportunity of taking diminished responsibility into account when sentencing. The onus is put on the judge to deal with a matter of fact which indicates a murder charge could be decided by a jury. There is a growing tendency for judgments to be criticised in the media. Sometimes the criticisms, on the face of it, appear to be justified. In other instances, as the Minister is aware, the full facts of the case are not recorded in the media, leading to unfair criticisms levelled against judges. Do we accept this situation should continue, particularly in a case where a judge may take into account diminished responsibility when sentencing?

Senator Henry touched on the plea of irresistible impulse, which struck a chord with me. I have always had reservations about the defence of irresistible impulse. How, in the name of goodness, can anyone come to a decision as to whether an act was committed by way of irresistible impulse? I am sceptical of such a notion as an easy way out for an individual accused of a serious crime.

Will the Minister clarify the make-up of the mental health review board? I note the explanatory memorandum suggests the Bill has no significant financial or staffing implications. An advisory board already exists and it would be helpful to know to what extent it will have extra staffing. What are the projected costings for the new board as opposed to the existingad hoc advisory committee? If a mental health review board is to be established, which I agree with, it must be done properly.

In October 2003, the Irish Human Rights Commission produced a major paper on the Bill's provisions. Some of the issues raised by the commission were taken on board on Committee Stage in the Seanad. Will the Minister indicate why other commission recommendations were not taken on board?

I am not sure how politically correct it is to raise the following issue but I will. On the one hand, there must be a major focus on the medical condition of an individual accused of a crime to ensure he or she is treated properly in a way sympathetic to his or her condition. Victims of the activities of those so accused must also be taken into account. Crimes committed by those deemed to have been cured or fit for release must also be of concern to us. It is a complicated area and the Bill rightly focuses on treating such people fairly.

On the other hand, I have always operated on the principle ofsalus populi suprema lex or “the safety of the people is the first law”. We must also consider the protection of the public. Has this been fully taken on board in the framing of this Bill? There have been instances of murders and serious crimes committed by former inmates of psychiatric institutions or by those who had been released from the Central Mental Hospital. It is important for the public and ourselves to be aware of that side of the coin, to ensure as far as possible that the proper balance is achieved between dealing with somebody who has committed a crime while psychiatrically ill and the protection of the public from further such crimes.

This Bill is a worthwhile advance on existing law. It has benefited from its time in the other House and the 139 amendments tabled there, which were an indication that it underwent major Committee Stage scrutiny in an effort to improve on the original as much as possible. Our job is to get the Bill to Committee Stage as quickly as possible, to consider further amendments to improve it and to ensure it is passed into law without delay.

I welcome the Minister. As he said, the purpose of the Bill is to modernise the law and to bring it into line with the new jurisprudence in the form of the European Convention on Human Rights which Ireland incorporated into domestic law in 2003. The main provisions of the Bill are to replace the concept of fitness to plead with the concept of fitness to be tried, to provide for a statutory definition of criminal insanity, a new verdict of not guilty by reason of insanity, which replaces guilty but insane, and a new plea of guilty with diminished responsibility, which would reduce a murder charge to one of manslaughter.

The European Convention on Human Rights prevails by requiring that a provision be made for the establishment of a review mechanism. This will take the form of a new body known as the mental health review board which will formally review and investigate cases where people have been detained under the provisions of the new legislation and will replace the presentad hoc review mechanism.

The Bill provides for designated places of detention for persons with a mental illness or disorder who have come before the courts. It is difficult enough to define mental illness, either medically or legally, but mental disorder, the term used for determining criminal liability, is even more complex. We may need the professional knowledge of Senator Henry, who made an interesting analytical contribution to this legislation in the Seanad, to take us through all the terminology in the Bill. We will have the benefit of Committee Stage to tease out the nuances in the medical and legal terminology.

The Minister quoted with approval the work of Professor Finbar McAuley and Professor Paul McCutcheon. I have great admiration for their document on criminal responsibility. In particular, the Minister approved of their final lines stating that "while a degree of congruence between the medical and legal evaluations can be expected, the ultimate resolution of the issue is one of law, not medicine". As professional practitioners in the legal arena, one would expect them to so conclude but it is important to realise that medicine and law are overlapping areas and it would be wrong to make either paramount since that has caused the problems of the past. Criminal law had overriding strength and often those sentenced to designated centres of detention were neglected, so I am concerned we might take that approach too far. We need, however, a definition of mental disorder that will assist criminal law in dealing with the accused following a court verdict. The key to a successful approach is to marry the subsequent medical treatment to the criminal process.

As Deputy O'Keeffe said, this legislation has been some time in gestation. It first appeared in the distant past of 2002, shortly after the Minister became Minister for Justice, Equality and Law Reform and was a swashbuckling liberal full of intentions to introduce reforming legislation. If I remember rightly, the legislation was introduced on International Human Rights Day, 10 December 2002. That was shortly before we incorporated the European Convention on Human Rights into our legislation. I regret that the Minister's blast of reforming zeal was short-lived and that he was diverted to bogus asylum seekers where he has spent his energy for the past two and a half years. The Criminal Law (Insanity) Bill 2002 has limped through the Oireachtas since then, finally seeing the light of day on 19 April 2005 in the Seanad. Now as we approach International Human Rights Day again, three years after the publication of the Bill, it is about to begin its passage through the Dáil. At least the Minister has acted where previous Ministers have done nothing, although professionals in the legal and medical field have long agreed that existing law on insanity is outdated. Mr. Justice Henchy, a former Supreme Court judge, provided the Government of the day and successive Governments with a comprehensive report and a draft Bill, however inadequate, 27 years ago. The wheels of justice move slowly, especially for those with a mental illness or disorder.

Schedule 2 to the Bill deals with the repeal of enactments that will become redundant when the legislation is enacted. The Acts to be replaced cover a period of 200 years, including the entire Criminal Lunatics Act 1800, aptly described, to the repeal of section 4A(1)(c) of the Criminal Justice Act 1999. In essence, there are repeals of modern and older legislation.

I received yesterday documents from Mr. Mannix Flynn, a well-known actor and writer under the alias of James X. I do not know if the Minister has had the opportunity to peruse those rather appalling records of his life and times. The material documented the sad life of a young boy growing up in the Dublin slums in the 1950s, 1960s and 1970s. He spent years in industrial schools as a young boy. By the age of 16 he had graduated to St. Patrick's Institution for juvenile offenders. On 19 May 1973, two medical doctors certified him as insane under section 2 of the Criminal Lunatic (Ireland) Act 1838. This section is happily one of those being repealed by this legislation.

In 1971, as a boy of 14 years of age, he had already run the gamut of industrial schools under the aegis of the Department of Education. In a private and confidential letter to the Secretary of the Department of Education, stamped "not to be read in open court", the psychiatric consultant gave his view of the young man from the Dublin slums. It states:

James X, aged 14, 2 Connolly House, Dublin, care of Marlborough House, Department of Education. I examined the above boy as requested. The reason for the request was that he had attempted to escape from Marlborough House, been obstructed and had put his hand through a glass window since admission yesterday. He is on remand for a week because of being charged with loitering with intent. This boy has been a problem since at least the age of three, when he commenced school. I first saw him in 1965 for the court. He spent a period both in Daingean and Letterfrack. James, who is a tall, fair-haired, blue-eyed boy, has badly bitten nails and cuts on his face and right hand at the moment. He is functioning at the level of dull average intelligence.

Mr. Mannix Flynn would not like that. It continues:

He denies having any problems other than that he might as well continue his life of delinquency as "the guards are down on him anyway". In my opinion this boy is in need of a period in a unit under the jurisdiction of the court, where he could have intensive investigation, treatment and rehabilitation. I think, in the absence of such a facility, and if he cannot be contained in Marlborough House, perhaps a period in Mountjoy might be considered.

It seemed that the power of judge, jury and executioner lay in the hands of the professional psychiatrist from Fitzwilliam Square.

The psychiatrist's wish was soon granted of course. Mr. Mannix Flynn was next reported in Mountjoy Prison at the age of 16 years, where he served three months detention for the "larceny of a purse, valued 50p, and £15 cash". Four days after his arrival into St. Patrick's Institution, two medical doctors examined him and issued their official verdict in what illustrates the mechanism used under the legislation. The verdict stated: "We hereby certify that he has become insane and we are of the opinion that his case may be considered as likely to derive benefit from being placed in the Central Mental Hospital."

In this way, the full force of the State's power was brought to bear on a vulnerable child of Dublin's slums. These include the Garda, the courts, the industrial school system under the Department of Education, St. Patrick's juvenile institution and finally, the Central Mental Hospital in Dundrum. All were employed to control an unruly child.

The industrial and reformatory system did not end until 1979, and only now are we abolishing some of the worst excesses of the Victorian and pre-Victorian panoply of rules, practices and laws governing those who are mentally ill and may have committed a criminal offence. Thankfully, modern psychiatry has moved on and troublesome children are no longer certified by doctors as insane for the purpose of transferring them to the Central Mental Hospital and decertified as sane for the purpose of transferring them back to an institution. Social engineering is no longer such a blatant part of the process and there is greater understanding of the underlying causes of mental illness and its associated conditions. With regard to detention, however, we recently saw how 147 children were detained in prisons since January 2005. Much still has to be done in dealing with the issue of incarcerating young people.

The Central Lunatic Asylum (Ireland) Act 1845 remains intact. It is the commonly used legislation under which adult prisoners are transferred to the Central Mental Hospital. I hope the Act will be included later in the Minister's list of legislation to be abolished. The Minister is admirably abolishing the scandalous padded cells in prisons, but it is necessary to have the appropriate legislative mechanism in place to do so. It is time to address this antiquated procedure and reform antiquated legislation. I will carefully scrutinise amendments taken on board by the Minister in the Seanad to consider if they go far enough in this respect.

Currently, an acquittal based on a guilty but insane verdict results in detention in the Central Mental Hospital in Dundrum. Detention probably also awaits a person with the change of verdict to not guilty by reason of insanity. Regrettably, it remains in the public interest to curtail the freedom of the person until he or she no longer poses a threat to society. Reform of the M'Naghten rules and repeal of the Trial of Lunatics Act 1883, which provide for the guilty but insane verdict, are greatly enhanced by the establishment of the important quasi-judicial independent review board introduced in this legislation. Real protection occurs in that there is now a substantial onus on the State to protect the fundamental rights of the person. This will be carried out whatever detaining mechanisms are put in place through regular revision of the person's detention.

It is surprising that prisons are included in section 8 within the definition of designated centres for the detention of persons committed under the Bill. Mr. Justice Henchy, who chaired the interdepartmental committee on mentally ill and maladjusted persons which produced the main recommendations that are the substance of the Bill, did not recommend that prisons be designated as such. Will the Minister elaborate on his thinking in this matter? It seems that the detention of people in prisons is contradictory if they may or may not have been convicted of a crime but have a primary need of treatment for a mental illness or disorder.

It is difficult to envisage a situation where it is more appropriate, as the Minister commented, to detain a person in a prison rather than a psychiatric institution. It may be more suitable for the Minister, but it is unlikely to be more suitable for the patient. There is a danger, in taking on board what Mr. McAuley and Mr. McCutcheon stated on the primacy of the law, of recognising prisons as designated centres. The revolving door process of transfer and retransfer could thus continue unabated after this legislation is passed. It appears to be in breach of the principles and purpose of the European Convention on Human Rights. If the Minister persists with this type of designation, I imagine it will give rise to some legal challenges in the future.

I will refer briefly to the Minister's purchase of Thornton Hall for €29.9 million. While I will continue to refer to it as a waste of taxpayers' money, it is also questionable, in terms of penal policy, as to whether it is appropriate to construct prisoner accommodation housing more than 1,000 inmates. The construction of a super prison and a new Central Mental Hospital on the same site is a recipe for disaster. It will not matter whether the mental hospital is to be cheek by jowl with the prison or will be separated from it by a hedge, fence or a mile-widecordon sanitaire. Prisoners will be inappropriately transferred to the mental hospital and patients could be inappropriately transferred to the prison. I imagine the new prison will be designated as a centre for the purposes of this Bill. While I am uncertain about this, given that the two institutions will be in such close proximity, I imagine the temptation to designate the new prison as an appropriate centre for detention of people under this proposed legislation will be too much for any Minister to resist.

It is necessary to make a clear distinction between the purposes of imprisonment and of the detention of a mentally ill person. Imprisonment is to deprive sane people convicted of criminal offences of their liberty and is imposed as a punishment for their offences. The purpose of detention of a mentally ill person in a designated centre is primarily for inpatient treatment. At all times, treatment for mental illness or disorder should be paramount in people's detention, regardless of whether they have been found guilty of any crime. I do not believe the legislation is clear as to how these designated centres will operatevis-à-vis the people who will be committed to them.

As far as expenditure is concerned, reform of the law is of little value if money is not spent on resourcing the associated structures and services. Mental health is the Cinderella of the health service and since the foundation of the State, has always been under funded. People with a mental disorder were locked away out of sight and out of mind in overcrowded Victorian institutions and were stigmatised by their illness and circumstances. The Central Mental Hospital requires a modern, bright and airy campus to enliven and not to depress and we certainly need a new one.

However, as money has poured into the bottomless pit of the health industry with the provision of large annual increases, the percentage expenditure on mental health has decreased, from a paltry 9% to an even smaller 6% in the past five years or so. The provision of community care, community hostels, community services, community psychiatric nurses and community psychiatrists can prevent situations whereby vulnerable people fall foul of the law and end up before the courts and in institutional designated centres of detention. Money spent on preventative measures is money well spent. We already know of those people with mental health problems who are out roaming the streets. Eventually, they may end up committing offences and will be brought before the courts in the context of this legislation. Hence, prevention is the key.

Moreover, legislation like the proposed Bill is worthless unless adequate funding is provided to resource it. Designated centres of detention require modern professional security and care which can no longer be provided cheaply. If it does its work properly, the review board will be extremely active and will have regular review hearings, investigations and sittings. It must be properly funded and resourced to be able to operate in the manner envisaged by the European Convention on Human Rights. The board should be boosted by the appointment of a second psychiatrist, as was recommended by Mr. Justice Henchy 27 years ago. The Mental Health Act 2001 has suffered in its implementation through a lack of proper resourcing.

These proposals have been before the Oireachtas for three years to date and on the shelf for 27 years. It is time for the Minister to do the job properly.

I also wish to share my time with Deputies Cuffe and Ó Snodaigh.

Is that agreed? Agreed.

This is a very important Bill. I know that major difficulties have been encountered by courts and juries. As the Minister has observed, the legislation goes back to the M'Naghten rules and the issue of themens rea or the will and the intention to murder. Frequently, juries that knew all was not right, were confined by the finding that they should find a person guilty but insane. As the Minister has pointed out, that meant an acquittal with the result that such a person could walk away from the court. This Bill is a step in the right direction, although as the Minister has admitted, it has not come before its time. The new plea of diminished responsibility will give more discretion to juries and will allow a lesser sentence to be imposed in cases with a mandatory sentence, such as murder. Hence, it will allow a more humane situation to prevail.

The point has been well made that this Bill is necessary. The Minister has stated that section 20 contains the usual reference to expenses. That tells the full story because the difficulty with the psychiatric services is that they have been starved of funds. The percentage expenditure on mental health is now 7% which is not adequate, when the number of suicides in Ireland, which are in their hundreds and are equivalent to the number of road traffic fatalities, are considered. Nevertheless, the budget for suicide prevention is something like €1.5 million. This Bill is necessary but also underlines the deficiencies in our system, particularly in respect of the requirement to match it with the requisite resources.

A criticism of the Bill in its initial stages related to the emphasis whereby one would have mental illnesses treated in institutions on an inpatient basis. This was seen as the consignment of people to a prison or to the Central Mental Hospital without alternatives. Alternatives should be provided and for that to happen, adequate resources must be provided for both inpatient and outpatient services. This would enable the courts to determine that someone could receive treatment in his or her community from the support staff, rather than to be taken away and confined for X number of years.

There have been major problems in the past whereby people were consigned to institutions for many years and deprived of their liberty with no hope of a review. This was addressed by previous legislation such as the Mental Health Act 2001 and the situation changed, which is to be welcomed. However, having visited Cloverhill Prison for the majority of days during which the Rossport five were held there, I have seen how the prison services work. I have seen the good work done by prison officers and other prison staff. There are also deficiencies in the system, in that the inmates are too often mentally disturbed or mentally disabled and really require help, which is not always available to them. The Minister made the point that some people enter prison in need of psychiatric care rather than a padded cell, which is currently the only option available to them. This must be addressed. I hope the Bill will go towards relieving that situation to a major extent.

The number of people in our prisons who are psychiatrically ill or have intellectual disabilities is quite high and it is important that we have the services to ensure they are rehabilitated. The point was made that prisons confine people in a space and deprive them of their liberties to protect the public but perhaps it is more important to think outside the box and about the needs of these people, so that those who are in need of psychiatric services receive treatment. Too often, people in prisons do not get these essential services.

This legislation relates to the Lunacy (Ireland) Act 1821 and the Juries Act 1976 and the lack of a statutory definition of fitness to plead. The test for insanity as a defence under criminal law has its origins in the M'Naghten rules of 1843. These rules are very restrictive and confine a defence to narrow limits. They apply to a person suffering from insanity that manifests in insane delusions yet they were accepted as the general test for insanity in Irish law despite doubts being expressed about whether they represented a comprehensive statement of Irish law on the issue.

I hope the necessary resources will be made available. The existing general adult psychiatric units catering for mentally disordered offenders should be able to cater for people of all ages, in particular patients diverted from the courts system. There are financial implications, which is contrary to the statement in the Bill which limits resources according to the discretion of the Minister for Finance. To give people the same opportunities, rights and treatments as the general population is a question of resources.

This Bill is certainly a step in the right direction and has not come before its time. That someone can be deemed to be guilty but insane is a contradiction in terms. Now, when a person who is burdened with an illness and does not know what he or she has done or its effects or seriousness is acquitted, he or she will not be deemed to be guilty. This is an important point to make. The word "insanity" in the title of the Bill should be changed to something that is more in line with modern thinking and I hope there will be an amendment to this effect.

The Deputy has used nine minutes of his speaking time.

I am glad to have spoken on this Bill and will give it every support.

I generally welcome the Bill which moves in the right direction. However, there are a number of points I wish to make on the language of the Bill, the designated centres, the Central Mental Hospital in Dundrum, the position of the mental health review board and the links between mental health, homelessness and crime.

The Bill will update the legislation in this area but should perhaps have gone further. Most of the current body of legislation on the Statute Book concerning crime and mental illness originates from the 1800s and clearly must be updated or removed. Our understanding of mental illness has changed dramatically over the past 100 to 200 years. I hope that, along with the recommendations of the Human Rights Commission and other like-minded bodies, the Bill will be the first in a long line of reforming legislation. We have dragged our feet and must move with more speed.

On the issue of language in the Bill, we still use the phrases "mental handicap" and "insanity", a type of phraseology with which I am not happy. We go through a cycle of changing the language we use when we refer to something we are unhappy with. For example, in the case of the word "lunatic", we move on a revolving door basis through the language we use. Taking a snapshot of 2005, "mental handicap" and "insanity" are not the right type of words to use and we should look towards using better language. These phrases were used in the past to stigmatise and marginalise people suffering from mental illnesses or intellectual difficulties and we should reconsider them.

On section 2, the Bill gives the Tánaiste and Minister for Health and Children the power to designate a psychiatric centre at her discretion. This worries me as the Bill also states that, with the consent of the Minister for Justice, Equality and Law Reform, she can designate a prison or a part thereof as a centre. This sends out all the wrong signals on the issue, which is the kernel of this Bill. We want to put a considerable distance between places for holding people against their will in a prison context and addressing the issue of mental health, even though this Bill attempts to address the mental health issues associated with criminality.

Regarding the Central Mental Hospital in Dundrum, it is important to use this opportunity to highlight the appalling conditions still being endured by its residents. The 2004 annual report of the Mental Health Commission revealed the extremely poor and dirty conditions at the Central Mental Hospital. Patients are basically living in squalor. The commission's report listed inadequate sanitary facilities in both male and female wards, the continued practice of slopping out, no household or domestic staff to take care of cleaning the hospital and the poor quality of food. This is similar to the type of report we would have read 150 years ago on workhouses and is unacceptable. I accept that the Minister for Justice, Equality and Law Reform wishes to move the hospital out of that building but I am not sure he is going in the right direction by doing so. He should concentrate in the short term on improving the appalling facilities in Dundrum. I refer to the inappropriate use of seclusion and the lack of provision of up to date written information for patients regarding their rights, which is seminal information that should be available to every citizen. Regardless of whether this Bill is passed, we must address the current conditions in that facility. The Minister wishes to move the Central Mental Hospital to the new Mountjoy Prison complex at Thornton Hall. I repeat my criticism that, even though they are separate institutions, they will be on the same campus and it does not make sense that someone in the mental hospital will look out the window at a prison. It does not send the right signal. Nor does it make sense to relocate an institution that should be a strong part of our capital city to a greenfield site.

We often wish to put out of sight and out of mind that with which we are unhappy. The Minister is doing this by moving the facility ten miles away from the city centre to Thornton Hall. It is wrong no matter what criteria one uses to examine the matter. It means more travel time for staff and people wishing to visit clients. Concentrating mental health and criminal detention facilities in the same area sends out the wrong signals. It must stop now. International practice in this area, such as the United Nations document Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, strictly prohibits the use of prisons or sections of prisons as places of detention for persons suffering mental illness who have committed an offence. The Minister is not taking the correct action. It comes down to a matter of semantics as to whether they are part of the same institution. They are on the same site. It is wrong and it is not how we should act.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment attaches particular importance to regular visits to psychiatric establishments by an independent outside body responsible for the inspection of patients' care. While the Bill makes provision for the mental health review board, I am concerned it may not be completely independent. The review board will determine its procedures but with the consent of the Minister for Justice, Equality and Law Reform. It puts too many aces in the Minister's hand. I would like to see some deep blue water between the mental health review board's actions and procedures and the Minister for Justice, Equality and Law Reform, to ensure complete independence from him and to allow it to function effectively.

During the past couple of years Amnesty International concentrated much of its research in Ireland on examining the strong links between homelessness, crime and mental health. Addressing homelessness is not an issue of simply providing a roof over a person's head. It is about addressing the needs of those who find themselves homeless. A large amount of people in that situation have psychiatric illnesses and other mental health difficulties. One in four of the prison population of 3,200 was homeless on committal, and of those two thirds had spent time in a psychiatric hospital. Clear intertwined links exist between mental health, homelessness and crime. A real difficulty exists in the revolving door system in our prisons which involves throwing people back on the street. These people will often find themselves homeless, and the underlying issue faced by an individual is not dealt with. The Bill could do much more in this area.

I commend the Irish Penal Reform Trust on the work it has done in this area. In September it won the right to represent mentally ill prisoners in legal proceedings against the State, who are claiming damages for breach of their constitutional rights. We must examine that judgment carefully. The World Health Organisation Health in Prisons Project stated: "It is important for the rights of the prisoner that time in custody is used positively for the prevention of disease, the promotion of health and that negative effects of custody on health are reduced to a minimum". That phrase should be the watchword of any legislation in this area. I am not convinced the Bill does enough in that direction. It updates the law in some areas but we must do much more for those with mental illness, particularly those who are in custody.

We have consensus amongst the relevant sectoral groups that the Criminal Law (Insanity) Bill 2002 is to be generally welcomed as a concerted effort to reform this previously neglected area of law, which dates from the 19th century. The groups I refer to include Schizophrenia Ireland, the National Disability Authority, the Human Rights Commission, Mental Health Ireland, the Mental Health Commission, and Mental Health Nurse Managers Ireland. On behalf of Sinn Féin, I also welcome this legislative initiative to progress the State in addressing the needs of mentally disordered offenders.

Leagfaidh mé roinnt de na gnéithe amach atá ag déanamh buartha dom maidir leis an Bhille seo níos déanaí. Tá a lán acu ardaithe cheana féin ag na grúpaí a luaigh mé agus grúpaí eile nach iad. D'ardaigh siad an cheist leis an Aire go díreach conas is féidir an Bille seo a leasú.

Tosóidh mé ar bhonn dearfach — deis nach mbíonn agam go ró-mhinic le reachtaíocht ón Aire seo. Tá sé go maith go bhfuil athrú ag teacht air. Measaim go bhfuil sé tábhachtach go bhfuil an Bille seo os ár gcomhair agus gur féidir linn déileáil leis chomh tapaidh agus is féidir. Tá sé sin tábhachtach, agus tá gá leis láithreach; ar ndóigh, bhí gá leis le tamall maith de bhlianta.

A number of elements of this Bill are welcome, including efforts to align civil and criminal law provisions on mental disorder, affirming and codifying common law decisions on criminal insanity, providing a framework for determining fitness to be tried, setting up a standard for the ongoing review of the need to detain those who have offended while suffering from a mental disorder and the stated intention to bring the State more in line with its obligations under the European Convention on Human Rights. I also welcome the fact the proposed legislation is applicable to existing detentions and that the Bill appears to protect the right of persons to fair proceedings, effective remedies and to challenge detention as set out in the Constitution and in articles 5, 6 and 13 of the European Convention on Human Rights. Furthermore, the recommendation of the Human Rights Commission, that the initial period of detention applicable to someone who is found not guilty by reason of insanity be reduced from 28 to 14 days is included in the Bill as passed by the Seanad. For once, the Minister appears to have listened to the Human Rights Commission.

That said, I have a number of concerns, some of them serious, about a number of aspects of this Bill. The key concern for Sinn Féin is that the implementation of this Bill must not be reduced to a component part of the Minister's fundamentally flawed broader agenda for prisons. People suffering from mental illness must not be held in prisons. A judgment of the European Court of Human Rights on the matter is unequivocal in requiring that, where a person is detained for mental illness, he or she must be held in a clinic and not in a prison. The UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care also clearly prohibits the use of prisons or parts thereof. The spirit of this clearly implies that locating people suffering from mental illness on the site of a prison is also inappropriate, as my colleagues already stated. All references to prisons in the provisions for the designation of centres must be removed from the Bill, in line with the Human Rights Commission's recommendations.

My second major concern about this Bill stems from the chronic under-resourcing of mental health care services. The Bill must be amended to ensure its implementation will not result in any negative impact on non-offending people suffering mental illness, as a consequence of increased security measures in their treatment facilities. In my area, I have campaigned for Ballyfermot Mental Health Centre to be replaced with a new facility. The conditions there are Dickensian. I hope joined-up thinking will take place between the Ministers for Justice, Equality and Law Reform and Health and Children to ensure the provision of proper resourcing and funds so that those suffering from mental illnesses are properly catered for within the community before they end up in court and in some type of detention as a result of court proceedings.

If more money, investment and thought was put into addressing mental health care facilities throughout the island, people with mental illnesses ending up in court may not be as major an issue. I ask the Minister to discuss this with the Tánaiste and his colleague the Minister for Finance to ensure the Estimates and the budget see money invested in the first port of call for many suffering from mental illness.

I suggest the Bill be amended to provide alternatives to committal to a designated centre. According to the Mental Health Commission, a wider range of options should be open to the Judiciary to ensure the most appropriate intervention is offered to the person. This might be where additional investment in local community mental health centres is available so that a judge has the option to refer those persons to specialised treatment in those centres.

Schizophrenia Ireland has argued that the thrust of modern health treatment recommends such treatment in the community as the preferred option and that inpatient care should be regarded as a last resort. Treatment in the community is pointless if the facilities are Dickensian, decrepit or falling down around the workers, or the patients and families who use them. An investment in facilities is urgently required.

If the Minister is on the Ballyfermot Road at any stage, just left before Cherry Orchard hospital he will see the state of the Ballyfermot Mental Health Centre. I have heard that its condition is not dissimilar to other centres.

Schizophrenia Ireland stated that in specifying inpatient care as the only form of care, the Bill is at odds with the central philosophy of community care. An additional concern of mine relates to the language of the Bill and this has been referred to by other speakers. A number of sectoral groups, in particular, have expressed the view that terms such as "insanity" and "mental handicap" are archaic and unacceptable in contemporary practice, due to the potential to demean and stigmatise individuals suffering from mental illness or disorders and persons with an intellectual disability. The Human Rights Commission has recommended that the terms "insanity" be replaced by the term "mental disorder" and "mental handicap" by "intellectual disability". This would also facilitate legislative consistency. Hopefully the Minister will take on board the recommendation from the Human Rights Commission, since he is in that mode at present regarding this Bill.

Some groups have already criticised this Bill on the grounds that some aspects of it are inconsistent with the Mental Health Act 2001. We need to ensure consistency in Bills dealing with similar areas. Some sections of the Bill will require amendment if they are to comply with the provisions of the Mental Health Act. As the Bill is currently drafted, the operation of the proposed mental health criminal law review board shall have regard to the welfare and safety of the person whose detention it reviews under this Act and to the public interest. The Human Rights Commission has recommended that this be replaced by the formulation adopted in the Mental Health Act 2001 which states that the best interests of the person shall be the principal consideration, with due regard being given to the interests of other persons who may be at risk of serious harm if a decision is not made.

Fáiltíonn Sinn Féin roimh an Bhille seo mar chéim chun tosaigh i bpróiseas leasaithe atá thar am. D'ainneoin sin, beidh mé ag cur na leasuithe atá luaite agam, a bhaineann leis na gnéithe sin atá ag déanamh buartha dom agus do ghrúpaí eile, os comhair an Aire. Tá súil agam go nglacfaidh sé leo roimh i bhfad. Tá súil agam freisin go mbeidh muid ag teacht ar ais anseo ag deireadh an phróisis reachtaíochta seo le Bille a bheidh i bhfad níos fearr, ar féidir linn bheith bródúil as, agus go gcuideoidh sé leo siúd — seachas cur ina gcoinne — atá gafa le galar intinne nó a leithéid. Ba cheart dúinn bheith in ann bheith bródúil as agus tairbhe éigin a bhaint as. Bheadh an deis againn ansin seasamh suas os comhair andomhain seachas os comhair chúirt an domhain agus a rá gur seo an bealach chun cinn ar chóir do thíortha eile a leanúint.

This legislation is long overdue. As the Minister pointed out during the debate in the Seanad, it is 25 years since Mr. Justice Henchy first commenced his work in this area. During Report Stage of the Transfer of Execution of Sentences Bill, Deputy Costello and I proposed amendments which we believed would make that Bill more understandable and clear for the lay person trying to read it. On that occasion, the Minister rejected the amendments as unnecessary. However, in his contribution in the Seanad on the Criminal Law Insanity Bill 2002, he insisted this must be commonsense legislation and understood by all. He stated the Bill should not approximate how psychiatrists would write law. If that were to be the case, God forbid, even the lawyers and the judges might be confused as are many lay people, by the legal terminology used in other Bills.

The Minister explained his position during Report Stage in the Seanad by stating he did not agree that he should adopt the same attitude to every Bill that comes before the House, calling such an approach a tyranny of consistency.

Whatever the Minister says about his differing approaches to legislation, this Bill will still be very difficult to understand in layman's terms. However, in general, it gets the balance right between the duty to protect the citizen and the community and the duty to protect the human rights of those persons who are accused of committing a crime but because of their mental capacity cannot be dealt with within the scope of the normal criminal law.

The central plank of the Bill is the new definition of what constitutes an excusing mental disorder, such as mental illness, mental handicap, dementia or other diseases of the mind. In reality, marginal cases will exist in all these instances. Doctors will disagree and some diagnoses will prove incorrect. These inconsistencies and possible mistakes will from time to time cause anxiety in the public mind but this is not, nor will never be, an exact science. The Bill will provide a clear legal framework for dealing with people with mental disorders who are accused of a serious crime.

The Bill is equally clear that it does not include intoxication as a legitimate reason for a plea of not guilty by reason of insanity or a plea of diminished responsibility.

The debate in the Seanad seems to clarify that the term "intoxication" not only refers to drink but also to so-called social drugs. Some clarification on Committee Stage may be required to explain the difference between so-called social drugs and drugs prescribed by a doctor for medical purposes.

I ask the Minister to clarify whether a plea of diminished responsibility is now unacceptable in the case of intoxication or whether from now on, a judge cannot under any circumstances allow for the state of intoxication when considering a case. On rare occasions there may be circumstances when young people are given drugs or duped into taking drugs that may have a serious impact on their behaviour. Drug pushers are ruthless in pursuing young people in an effort to get them addicted. I suggest that in exceptional cases, a judge should have some discretion for taking this into account.

Section 1 of the Bill deals with designated centres and provides that it is a matter for the Minister for Health and Children, with the consent in certain cases of the Minister for Justice, Equality and Law Reform, depending on which Minister has jurisdiction, to designate a prison or part of a prison or to designate a psychiatric centre for the reception, detention and, where appropriate, care or treatment of persons committed under this Bill. Serious concerns have been expressed about these provisions, for example, as to whether they are compatible with United Nations Resolution 46/119 on the principles for the protection of persons with mental illness. I ask the Minister to address this question in greater detail.

Resources are the central part of the problem. The Minister is constantly reviewing and renewing legislation, much of which is welcome, but legislation is largely ineffective without the allocation of resources. By introducing this legislation, the Government is trying to give the impression that much more is being done in the sphere of mental health. According to Mental Health Nurse Managers Ireland, existing resources for mental health services are overstretched and any additional burden on resources would have significant implications for clinical effectiveness.

The current structures are wholly inappropriate for violent offenders. The Minister should make clear that the use of divisional systems should apply to non-violent offenders only and that provision for violent offenders is dependent on the development of regional secure units. If the Minister is to approve units outside Dublin, it is likely such centres will be located in acute admissions units based in general hospitals, which are not designed to provide a secure environment. The Minister should rule out the use of such centres as any change in their status brought about by increased security would change their entire ethos and would have a significant impact on the rights and civil liberties of other patients residing in the acute facilities in question. A number of regional intensive care units with modern forensic expertise and under the management of multi-disciplinary teams in regional locations are required.

Section 3 deals with the issue of "fitness to be tried", a concept adopted in place of the term "fitness to plead". The section provides that fitness to be tried will be decided by a District Court without a jury. The court will also have the power to acquit a person if it believes there is a reasonable doubt that the defendant committed the alleged act. The effect of this provision is to remove the case from criminal jurisdiction to the jurisdiction of the Mental Health (Amendment) Act 2001. While this change is to be welcomed, it creates a conflict which the Minister must resolve. Does the fact that a person is not acquitted denote a strong suspicion of guilt by the court on the defendant? Could this be viewed as prejudiced to any case which may be taken against the defendant in future in circumstances in which the mentally ill patient is deemed to have recovered from his or her illness?

Section 4 provides for the verdict of "not guilty by reason of insanity" to replace the existing special verdict of "guilty but insane". The explanatory and financial memorandum states the reason for this change was criticism of the latter verdict on the basis of its provocative connotations. While this change is to be welcomed, the Minister does not appear to have been as sensitive in terms of the wording used in the Title, the Criminal Law (Insanity) Bill 2002. According to many experts, the terms "insanity" and "mental handicap" should be disregarded because of their stigmatising effect, which should not be underestimated. This and similar terminology should, therefore, be regarded as outdated. It has also been suggested that the terms "mental disorders" and "intellectual disabilities", which are in line with the wording used in the Mental Treatment Act, would be more appropriate in this context.

Section 5 introduces the concept of diminished responsibility. I agree that the availability of a verdict of diminished responsibility should reduce the danger that a jury will return an insanity verdict when faced with a marginal case. The Minister stated this provision is only needed in the case of murder, which carries a mandatory sentence, and that judges have the discretion to decide otherwise in other cases. Is he certain that all members of the Judiciary will interpret the provision in the manner he envisages? Is it not possible that a judge will decide that if the Legislature wanted diminished responsibility to be taken into account in other offences, the law should specifically say so, particularly now that it will specify one crime for this purpose. In future, if the Oireachtas introduces a mandatory sentence for any other offence, will it be necessary to make an automatic amendment to the Bill?

The Minister rubbished concerns expressed about imposing mandatory sentences on conviction for drug trafficking. His stance was that people who sell drugs are drug pushers and, as such, that is the end of the story. The law must, however, cover every eventuality. Is it not possible that a mentally ill person could be manipulated by drug traffickers and could get caught up in circumstances where all the evidence indicated that he or she was a drug pusher? In such circumstances, is it the Minister's position that a judge could not use his discretion under the Bill? Drug trafficking is a ruthless business and those involved in it are capable of anything, including manipulating and controlling a person with a mental disability. Will the Minister assure the House that judges will have discretion in such circumstances?

The appeals process introduced in section 6, which allows for appeal against a fitness to be tried decision of a lower court, is welcome. The establishment of the mental health review board in compliance with regulations under the European Convention on Human Rights is also welcome. The board will independently review, on a regular basis, the detentions of persons who are being detained in a designated centre by court order having been found not guilty by reason of insanity or unfit to be tried. Various suggestions have been made to the Minister on the composition of the board, the most valid of which is that two consultant psychiatrists should be appointed to it to ensure no decision is ever made without at least one of them being present. Section 11, which gives teeth to the board, is an essential provision.

Section 13 deals with the temporary release and transfer of prisoners. Under this section, the Minister for Justice, Equality and Law Reform or the Minister for Health and Children, depending on jurisdiction, will decide on transfer arrangements. A transparent procedure should be in place to establish what exact consultation the Minister has with the receiving service or agency to ensure appropriate services are available at the new location and to ensure the new service provider can show it has the resources and services to deal with the person being transferred.

Temporary or general release can be a sensitive matter. The thrust of modern mental illness treatment is such that care in the community is the preferred option. The Health Service Executive is doing tremendous work in this field with outreach programmes, accommodation and follow-up work by community psychiatric nurses. Again, however, resources can be a problem. Many people released from mental health facilities become homeless owing to the nature of their illness. On occasion, they can be accommodated by voluntary housing agencies, which are capable of providing housing but incapable of providing the back-up services currently provided by the Health Service Executive and associated agencies dealing with mental illness. The same is true of people released into private accommodation. Is it the case that release should be considered only where there is a responsible receiving agency such as the health board that can guarantee the Minister or an independent group that it has an outpatient resource service to provide the necessary back-up for the patient? Many patients feel that they no longer need to take medicine after release, so without the proper back-up there is a danger that their situations could deteriorate. That is a catastrophe not only for the patient but also for the confidence of the public, which must be maintained since its co-operation will always be needed in facilitating the return and integration of former patients into the community.

The section of the Bill dealing with financial or staffing implications clearly demonstrates the attitude of the Minister and the Government. It is not anticipated that the proposals in the Bill will have significant financial or staffing implications. In such circumstances, it should be clearly understood that the Bill is purely legalistic and will do nothing to improve general mental health services. Some of the Bill's provisions will take further from the general budget provided for mental health if the Department of Health and Children is to build and run regional secure units. According to the first Inspector of Mental Health Services, forensic mental health services nationally are seriously underdeveloped. Services remain inadequate at both hospital and community level. She goes on to say the following:

The Central Mental Hospital (CMH), a facility providing medium and high security beds, is the only designated forensic unit available nationally but has long been recognised as providing accommodation that is of a totally unacceptable standard.

The inspector goes on to point out that because the Central Medical Hospital is the only forensic unit, persons are detained there who could be discharged into a less secure unit or even back into the community. However, that cannot be done because of a lack of facilities, both institutional and community, outside Dublin. I was glad to see that the Minister accepts that view and favours the sale of the site of the Central Medical Hospital and the building of a state-of-the-art centre in Dublin, which one hopes would be followed by the roll-out of similar, smaller facilities at a regional level.

The Minister, like the rest of the Government, has been in power for eight years. If the solution was so painfully obvious to him, for God's sake why does the Government not get on with the job? Why do they not sell the site and build the new facilities? If the Minister and the Government were half as good at producing results locally as they are at producing legislation or commissioning consultant reports, after eight years in power one would expect to see some real progress from a purely practical perspective. I presume it is too much to expect from the Government. We must content ourselves with dealing with this purely legalistic Bill. We welcome the general thrust but hope that the Minister will reflect on some of the amendments made in the Seanad, which will be repeated and added to in this House.

I welcome the opportunity to speak on the Criminal Law (Insanity) Bill 2002 which we have awaited for some considerable time. Now that it has come, it is welcome. It is required to bring the approach towards criminal insanity and the treatment of people incapable of facing court to answer for deeds done or who were not in command of their faculties when a crime was committed into the 20th and, one hopes, the 21st century. Most of the relevant regulations have been in place since the 1800s.

It is a very difficult area. A person who suffers from a serious psychiatric illness raises questions, especially in the area of criminal responsibility. However, we must all be answerable to society for our actions. There are degrees of responsibility in that area, from being without any responsibility because of a psychiatric condition to being a marginal case with some alleviating factors regarding criminal responsibility when the act occurred. The Bill recognises that capacity. The present verdict of guilty but insane has consequences for a person subject to a special regime. Both society and the person are protected until he or she is no longer a threat to society or to himself or herself. The Bill modernises and reforms the law on clinical insanity and fitness to stand trial.

Psychiatry has changed immensely in the last 100 to 150 years since the basis of the current legislation was introduced. We must recognise the developments in it over the period. I know that the Minister has used the word "insanity" in the Bill. Perhaps he might address why that word has been retained. Some people have expressed concerns that the term "insanity" is still being used. I find it difficult to deal with. Someone who is insane has a serious psychiatric illness. Why do we not say that? "Insanity" has connotations of asylums and words still unfortunately used in law in certain circumstances such as "lunatic". They seriously stigmatise people with a psychiatric illness. There must be some legal reason for continuing to use the word rather than some of the more modern terms for those with a serious mental illness.

A person's inability to understand the difference between guilty and innocent, to instruct his or her counsel, or comprehend what is happening in a trial has serious implications for his or her human rights. The person would be unable to defend himself or herself, advise others on how to do so, reply to questions or relate to what is happening. The new verdict of not guilty by reason of insanity will allow people to be examined under the Mental Health Act 2001. Perhaps I might ask the Minister of State a question in that regard. I am glad that it is he.

I am following the Deputy in great detail.

This is another problem that I have in the area. The Central Mental Hospital, as the name suggests, is a hospital. The Minister of State is responsible for health, yet the entire responsibility for answering to the House rests on the Minister for Justice, Equality and Law Reform, Deputy McDowell. Perhaps I might expand on that. I have been questioning the fact that patients in the Central Mental Hospital do not receive disability allowance. If they were in a mental hospital under the control of the Minister of State's Department, they would do so. Those entitled to disability allowance in the Central Mental Hospital do not receive it. Unlike patients in other mental hospitals throughout the country, they will not receive refunds. While the Department of Justice, Equality and Law Reform must have some involvement in running the forensic mental health service, the Department of Health and Children should have equal responsibility in managing such places as the Central Mental Hospital.

The new concept of diminished responsibility applies only to murder. When someone was found to have committed a murder, the mandatory sentence was for life. Even though a judge in passing sentence may say there are special circumstances as regards a person's mental condition which should be taken into consideration, he or she cannot do so, and is obliged under law to give a mandatory life sentence.

Under this Bill a jury may bring in a verdict of manslaughter as regards a person with diminished responsibility, thereby having discretion in the level of sentencing up to and including a life sentence. It is not a question of reducing the sentence for a person in such circumstances. Rather, it gives the court the discretion to take into account the area of diminished responsibility.

I want to deal with the whole area of the needless criminalisation of mental illness. The abysmal failure to build adequate and appropriate community psychiatric and psychological services has resulted in mental illness becoming criminalised. People who urgently need medical attention go unnoticed in society and are left unattended for years. Many become homeless, some die by suicide and many end up in prison. I often say that people born today, because of their circumstances and life opportunities or who perhaps suffer from attention deficit hyperactivity disorder, ADHD, have three chances in life: they will become homeless, take their own lives or end up in prison. These are the life opportunities on offer to them. Most of those who end up in prison are there for petty crimes rather than very serious offences, with sometimes a high level of recidivism, in that they become institutionalised. They are not a threat to society, but they are persistent criminals because of their life opportunities and conditions. They might have been involved at an early age in drug and alcohol abuse.

The son of a constituent whom I have known for many years suffered from attention deficit disorder. The family tried everything to get treatment for him. As a young teenager he got involved in drug abuse and petty crime. The attention deficit disorder condition was not treated and he grew more violent. Unfortunately, the family had to get a barring order against him, but that did not stop them from still trying to alleviate his problems. Eventually the young man ended up in prison. At one stage a young psychiatrist visited him and prescribed Ritalin for the treatment of his attention deficit disorder. The father visited him in prison and found a new young man who said he would go back to school on coming out and have a different lifestyle, following the treatment. Within weeks, however, psychiatrists in charge at the prison withdrew him from the treatment on the grounds that Ritalin was an addictive drug, and he went back to his old problems.

Three or four weeks ago, that young man was charged in connection with injecting another person on the streets of Limerick, who subsequently died. I cannot say what the precise charge is but it has to do with the taking of a life. It is sad when, despite all the efforts made, the system lets down a young man such as this, and his family. His life is now ruined.

The Irish Penal Reform Trust estimates that almost 40% of the prison population may be suffering from some level of psychiatric or psychological illness or disturbance. Mr. John Lonergan, the Governor of Mountjoy would confirm that statistic. He repeatedly says that over 40% of inmates in his prison have suffered from attention deficit hyperactivity disorder as young children. I have heard him make that statement on several occasions. A considerable number of people suffering from psychiatric disorders, who have offended and are in prison, are there for very minor crimes which are likely to be related to mental or psychological disturbance. The mentally ill prisoner should be treated in an appropriately secure psychiatric or psychological setting. The prison environment, as currently structured, does not allow for adequate observation, medical or otherwise, of mentally ill prisoners. Many are locked up for as long as 23 hours a day in solitary confinement in strip cells.

I again quote Professor Anthony Clare, whom I have previously cited in the House:

The mentally ill are not the most systematically stigmatised group in our society. They are the true lepers of today.

This stigmatisation combined with the lack of appropriate care while in detention, means that mentally ill prisoners are among the most discriminated against groups in Irish society. Their human rights are denied on an ongoing basis by the State. For real change to occur, it must come about at society level as well as within the penal system. This again goes back to the discussion about the whole area of psychiatric services. Nothing will happen until society demands that considerable improvements are made or until we, as politicians, are challenged by the electorate in this regard. That is beginning, but only tentatively as yet. Hopefully our citizens will come to realise that for the one in four who suffer psychiatric disorders — in effect, almost every family — action must be demanded from Government, politicians and the Civil Service if services are to be improved.

For real change to happen there must be society-wide change too. That will involve massive diversion schemes combined with some form of reformative justice for mentally ill offenders, particularly for those who have committed non-violent crimes. Two distinct but co-ordinating systems have to be established, one outside the prisons in the community, the other inside the prisons. The Irish Penal Reform Trust has called for action to deal more appropriately with psychiatric illness before it becomes criminalised. It is recommended that serious consideration be given to establishing a mental health court system. I will develop this theme, because such courts would be inherent components of a planned co-ordinated monitoring service. Mental health courts might sound like a contradiction in terms, but there are several such models in the United States which have yielded positive results.

Alaska provides a suitable example of what could be established in Ireland. In 1999 the Alaskan courts system established a mental health court project which has five broad objectives: to preserve public safety, to reduce inappropriate incarceration of mentally ill offenders and promote their well-being, to relieve the burden of the Department of Justice as regards correction for inmates with mental disability, to reduce repeated criminal activity among mentally ill offenders and to reduce psychiatric hospitalisation of mentally disabled offenders.

Mental health courts address the need for a more human approach which diverts offenders with mental disabilities from overcrowded prisons in which they are often treated in padded cells. In addition, such courts address the need for a planned and co-ordinated treatment strategy which reduces needless incarceration and suffering among low-risk mentally disabled offenders. All offenders with a history of mental illness would appear before these courts. Dedicated judges, specifically assigned to hear mental health court cases only, would be trained in mental health issues, including some training in alcohol and substance abuse disorders. They would also be primarily responsible for co-ordinating the role of the court with the agencies of law enforcement, prosecution, defence and mental health care.

Since such courts were established in parts of the United States, offenders have the option of following a carefully monitored individual plan of mental health treatment instead of going to prison. However, a mere courts system will not be sufficient if it is not an inherent part of a well planned and co-ordinated monitoring and service provision programme. In Alaska, for example, a co-ordinated service provision programme of this type is known as the court co-ordinated resource project, CCRP. As its name suggests, it depends upon a centralised co-ordination of court, agency and mental health resources.

Such an approach in this jurisdiction would involve the court system, the Departments of Justice, Equality and Law Reform and Social and Family Affairs, the probation and welfare service, the Health Service Executive and hospitals for the mentally ill all functioning in partnership. There would also be a need for explicit co-ordination between mental health courts and drug courts. The chief role of the CCRP in Alaska is to expedite and maximise responsible alternative schemes to prison for those who are judged fit to live in the community. A programme similar to this one which addresses both the need for humane treatment of the mentally ill via suitable community schemes and the largely wasteful and ineffective financial and administrative burdens currently placed on the Department of Justice, Equality and Law Reform must represent a better way of reducing crime. Moreover, such a system would be cost effective because it would reduce the cost of prisons by catering for the 40% of those suffering from a psychiatric illness who can be treated outside of prison.

In Alaska, a pilot jail alternative service programme was set up in 1998 for up to 40 eligible defendants. This approach, involving the direct intervention of a court co-ordinator, has had considerable success. The Minister of State, Deputy Brian Lenihan, might say such a system is too advanced for his Department, if not for himself. We must, however, move away from a system where people who are mentally ill, especially those who are not a threat to society, are treated differently from other citizens. Many such persons are imprisoned for petty crimes. They may resort to committing similar infractions upon release in order to return to prison because it is what they know best. Mentally ill offenders should be afforded the option of a treatment programme instead of prison. Failure to complete that programme, however, should mean a committal to prison. They must commit to the programme for an extended period or face imprisonment.

I take this opportunity to refer to relevant correspondence I recently received from a concerned citizen, a former member of the Garda Síochána who has, in the past, raised his concerns with his superiors. They relate to the serious crimes, including murder, committed by psychiatric patients who are released by hospital authorities. In his correspondence, which I have forwarded to the Minister, he is strongly of the opinion that many of these outrageous and horrific crimes could and should have been prevented. He has tried since 2001 to have the matter raised and resolved but to no avail.

Will such matters be covered by this legislation? My correspondent suggests the Department should furnish a record of all murders and other crimes committed by persons in receipt of psychiatric care at the time of the crime. Such information should be readily available. The departmental officials may even be able to provide it for the Minister of State for his reply. I have little doubt that many of the serious crimes committed in the past five years are associated with persons who were in receipt of treatment for mental illness, or should have been.

This former garda refers to a number of the most high profile cases, including the famous incident in Claregalway some years ago, the recent case in Dundalk and the murder of a retired teacher in Galway by a psychiatric patient in 2002. He argues that since the closure of practically all psychiatric hospitals some years ago in favour of a policy of treating psychiatric patients in the community, it seems many murders have been committed by persons who would heretofore have been placed in a secure psychiatric hospital.

I am aware of the success of the programme of treating psychiatric patients in the community. I have seen such programmes in action in my constituency. There must, however, be some demarcation line where certain people should not be allowed into the community because of the genuine concerns expressed by my correspondent. Other members of the Garda would agree with the point he makes strongly that it is now practically impossible to have a person committed to a mental hospital, following certification by a GP. He points out that gardaí are often requested to provide escorts for violent patients certified by local doctors, who have a full history of the patients, only to find that they are released back into society within 24 hours and regularly cause further trouble in the community. This was his experience in his division and it is the experience throughout the country.

He also suggested that the Department of Health and Children should at least be informed by the Garda authorities, via the Department of Justice, Equality and Law Reform, of the situation. Hopefully, this Bill will cause that to happen. This person sent me copies of a number of newspaper articles. One is fromThe Irish Times of 3 April 2003 which states that there is little provision to prevent violent attacks by disturbed young people. The article goes on to describe an attack carried out in St. Stephen’s Green in Dublin by somebody suffering from attention deficit hyperactivity disorder. Perhaps the Minister will discuss those matters when he replies.

I have watched this issue with some interest. I am particularly delighted that Deputy Brian Lenihan, an eminent legal eagle, is present and that the relevant Department is well represented by legal luminaries. Deputy Deenihan referred to a number of high profile cases in recent years. The Minister spoke on 12 December 2002 of the imminence of this Bill. I hope other legislation he suggests is introduced with a little more rapidity than this measure.

Undoubtedly, an updating of the legislation in this area is required. It is overdue. However, intriguing questions arise with these changes. The Minister referred to fitness to plead and the statutory definition of criminal insanity. A new verdict of "not guilty by reason of insanity" is to replace the present verdict of "guilty but insane". In one of the high profile cases much legal argument took place as to whether the person who committed the murder or misdeed was insane at the time it was committed but was perfectly sane beforehand and afterwards. I read the various arguments with interest. I accept that the defendant has a right to make an argument. Otherwise, his constitutional rights would be violated. However, I am not entirely convinced that one can shift, in the space of five or ten minutes, from a state of sanity to a state of insanity and back to a state of sanity. That argument went on for a long time, as the Minister is aware.

Some members of the public would dispute whether it is possible to achieve that condition. It was argued in court that it was possible and that there are circumstances where these things happen. However, there are tragic consequences for members of the public who had no knowledge of their impending doom and did nothing to deserve what happened to them but were just unfortunate to be in the wrong place at the wrong time when this condition affected the person accused of committing the crime.

There was another high profile case which generated a huge amount of debate. The accused left the jurisdiction in unusual circumstances. The same argument was pursued in that case. Again, I respect the right to offer a defence but it is difficult and contradictory to accept the argument that, in a particular case, the person who was perfectly sane and capable suddenly became insane and decided to kill somebody, was perfectly capable again afterwards but had a relapse within a couple of hours and killed somebody else and then was perfectly sane again. Then, to secure release from prison, he decided that the insanity was only a temporary thing which affected him at a particular time, it was now gone and it was unfair that he should be in prison. That is a very thin argument.

The victims in these cases, however, have a different attitude and are extremely concerned. The person who has been murdered or killed has no defence. Nobody can come forward on their behalf and point out that they were in the wrong place at the wrong time. It is their tough luck. I am not as well versed in legal argument as the Minister but there is an urgent need to recognise that the victims in such cases feel they have an ongoing grievance. I am not attempting to be harsh about this but all Members of the House have received correspondence from relatives of the victims of such incidents. They point out, with justification, that a member of their family was a victim and the perpetrator was able to argue successfully that the incident was only a temporary aberration and that it was unlikely to happen again.

I do not wish to encroach on cases that might be pending or under investigation but there are instances both here and in the UK of serial killers who find it convenient to plead not guilty by reason of insanity or temporary insanity. It is difficult to accept anything other than it is convenient for them to enter that plea. It is not so convenient for the succession of victims. When there is more than one victim it is difficult to accept that this unfortunate person, who obviously has problems, can be temporarily insane on a number of occasions and that the degree to which they can plead that case can result in their freedom.

I recall there was a high profile case when I was not long a Member of this House.

The Deputy has been here a long time.

I hope to stay a while longer with the permission of the people. One never can tell, however. They might get tired of me, but hope springs eternal.

The Deputy has a safe seat. He will be all right.

I have always had one of those. I recall one case where the person was released after committing a very serious crime. He left this jurisdiction and crossed the Irish Sea where he committed the same crime again, four or five times. He murdered somebody after being deemed fit by the institutions that released him. All the experts said he was fit and rehabilitated.

I ask Deputy Durkan to move the adjournment.

He is only getting warmed up.

I will return to the matter. The Minister of State, Deputy Brian Lenihan, does not know what I am talking about either.

The people of Kildare do not have to listen to as much hot air.

When it comes to hot air, the Minister of State has the franchise.

I will take that as a compliment.

Debate adjourned.