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

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

The Ceann Comhairle almost caught me unawares.

Before I adjourned this debate, I was dealing with the Minister's announcement of new pleas and verdicts. I referred to the verdict of not guilty by reason of insanity replacing the present guilty but insane verdict. I mentioned one or two instances that caused concern in the past and will no doubt do so in future. Some members of the public feel that victims do not receive due recognition in such circumstances. The Minister is an eminent legal practitioner, while I am not, nor am I a psychologist or psychiatrist. However, I have witnessed cases during my time in this House that would certainly warrant questions, particularly when, after a period, someone decides that the perpetrator should be released on what seem to victims and their families as tenuous grounds.

I mentioned one case in particular. I do not wish to draw attention to a specific case, but I know that the Minister is aware of this because, to the best of my knowledge, the person concerned is off shore, having left the country in peculiar circumstances. I am trying to ascertain in the context of the legislation whether future victims will have a greater or lesser degree of protection or recognition of their plight when, as they see it, even under current legislation, a perpetrator can appeal on the basis that he was insane when he committed the act but completely sane ten minutes before and a few hours afterwards. I know that we tread an extremely thin line, but the public is not convinced, and neither am I.

The public's confidence in the system to protect it is important. While we should never attempt to exceed the law regarding punishment, the public has recently got the impression that, for some reason, if a good enough case is made, someone who is a murderer, a rapist, or both, can get away on spurious grounds. Whether it is the public's fault for reaching such a conclusion or that of someone else I cannot say.

I ask the Minister, in the context of the Bill, to examine whether the public has confidence in the judicial system and the necessity that it have absolute trust in it. I refer to the Minister's points when he made his announcement on 12 December 2002, when he was a newly fledged Minister, full of bright hopes for the future and great proposals, having climbed telegraph poles with grand announcements, looking rather like the Statue of Liberty. He came back down to earth again and is now even closer to ground level than then. He said that there would be a new plea of guilty with diminished responsibility in cases of murder where the mental disorder is not such as to justify an insanity verdict. That means much more in legalese than it does to me, and I cannot say what it will mean to the public.

It would be of grave public concern if it became easier for someone who has committed a serious crime, such as murder, rape, or both, to escape imprisonment after a shorter period than that intended at sentencing. I do not wish to harp on about this issue, but it is important. That excuse has been used in the past and will be used again. I mentioned an individual who was released from prison on the grounds of being fully fit and rehabilitated or having served his full sentence. He left this country and went to another jurisdiction where, from recollection, he raped approximately five women and killed a sixth within five or six weeks. That was a few years ago, but the case was well known at the time.

What kind of plea would the law now entertain from such a person? Perhaps, in replying on Second Stage, the Minister might examine some cases where change would be of benefit. That is important. The public must be reassured that we are acting not because of semantics or pedantry but for the genuine reason of improving the efficacy of the law and public confidence in it, which is absolutely necessary.

The Minister said that the Criminal Law (Insanity) Bill 2002 will clarify, modernise and reform the law on criminal insanity, bringing our law on such difficult and sensitive matters into line with Ireland's obligations under the European Convention on Human Rights. I fully respect the need to comply with the convention, but I also recognise that it in no way impinges on framing the law in such a way as to protect the people and families of those who are victims.

The events of recent days regarding an issue in another part of the country serve to focus on the public's need for some kind of signal that the direction in which we are going is the right one. I have not been a harsh arbiter in this area and this is not a political criticism of the Minister. However, there is an obligation on all of us to recognise that much of the current lawlessness is generated by a belief among young people that crime pays, that if they cannot get away with it one way they can get away with it another. That is sad. I disagree with zero tolerance because I do not believe it works. It only works when a clear signal is given to criminals throughout the country that crime does not pay, they will not escape, they will be punished and they will not be allowed to shoot, stab, kneecap or bludgeon people to death. They must recognise that from the word "go", and that lesson must percolate down to the children who have not yet started on the way of crime.

There was a case a few years ago involving a young fellow of about 14 or 15 years of age who had a string of convictions as long as one's arm. He called himself the young general or some such pseudonym — I cannot remember it exactly. It is a sad reflection on our society that a young person with criminal intent was able to give the two fingers to society and walk away. That attitude came from only one thing — the big guys who were driving the big cars.

Only last week a man was severely injured — as far as I know that is all that happened — when he was surrounded by two high powered cars at a roundabout in Clondalkin. The media was able to give a graphic account of that incident. Obviously, there are powerful people involved in this business who believe they can get away with these incidents, and they are doing so. I am aware one was arrested today in Belgium, and congratulations are due for that, but we have a long way to go.

It is correct that defenders should have adequate space to plead their case and defend their client. However, they should not be given extra space to get their client off if he is a murderer, rapist or whatever. I am not making a political point when I say that to preserve respect for the law and the institutions of State and to ensure that we reduce crime which is escalating, we must be careful about what we do and how we do it in regard to this legislation if we are to achieve its objectives.

I am glad of the opportunity to speak on this desirable legislation, which is long overdue. It is difficult to understand the reason a previous Minister for Justice, Equality and Law Reform did not bring it forward at an earlier stage, particularly when one considers the advices in the 1978 Henchy report, which are incorporated into this Bill. It has been disturbing to see reports on some court cases involving people who were obviously mentally ill yet who were being tried before a court as though they were completely sane. High profile murder cases get a great deal of media attention because mandatory sentencing makes it essential that, if appropriate, a plea of insanity be brought forward. However, it is also important in the District Court where there were summary charges against people who are mentally ill.

The purpose of the Bill is to modernise the law and bring it into accord with the jurisprudence of the European Convention on Human Rights, which Ireland has incorporated into domestic law. The main provisions of the Bill are to replace the concept of fitness to plead with the concept of fitness to be tried; provide for a statutory definition of "criminal insanity"; and provide for a new verdict of not guilty by reason of insanity, which replaces the archaic concept of guilty but insane, and a new concept of guilty with diminished responsibility, which could reduce a murder charge to one of manslaughter, with the discretion being allowed to the court in the case of sentencing.

The European Convention on Human Rights requires that a provision be made for the establishment of a review mechanism, and this will take the form of a new body known as the mental health review body, which will formally review and investigate cases where people have been detained under the provisions of the new legislation. 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 to define what mental illness is, either medically or legally, but to define mental disorder is much more complex.

Regarding the case of a verdict of diminished responsibility, which I support as we are bringing Ireland into line with many other countries, in this instance it is confined to murder. Should it be confined to murder? Murder carries a mandatory life sentence and now, if successfully pleaded under diminished responsibility, a conviction for manslaughter will be recorded. However, there must be other criminal cases in which an accused has diminished responsibility. The plea of diminished responsibility will be decided by a jury and it is a matter for the jury to decide if diminished responsibility led to the situation. 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.

Judgments are often criticised in the media. Sometimes the criticisms appear to be justified. In other instances, the full facts of the case may not be recorded in the media, leading to unfair criticism being levelled at judges. Are we wise to allow that situation to continue, particularly in a case where a judge may take into account diminished responsibility when passing sentence?

I would like the Minister to clarify the composition of the mental health review board. I note the suggestion in the Bill that it has no significant financial or staffing implications. An advisory board 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 is a good step forward, it must be done properly.

I welcome the Bill. It is an important step forward which will have the effect of offering further protections to people who need that protection but who may not be in a position to set out their stall in a coherent manner. It removes the disparaging concept — guilty but insane — which is most welcome. I could never understand how somebody could be guilty of an offence if they were insane. It is regrettable that it took so long for such legislation to come before us in this House but even though it is late, it is welcome and the Minister is to be thanked.

Deputy Boyle, there are 14 and a half minutes remaining in the Technical Group slot if you wish to take it or do you wish to wait your turn?

I would not have used the full time. I would be grateful of the opportunity to contribute.

A number of issues arise regarding this Bill, which has been generally welcomed by most Members of the House. One was already referred to by Deputy McHugh in his contribution, namely, the length of time it has taken to introduce such a Bill to the House. It is worth noting that the most prominent of the cases that have caused public concern in this area took place a considerable time ago. The John Gallagher case, for instance, which involved the double killing of Annie Gillespie and her mother, took place in Sligo General Hospital 17 years ago, in 1988. After being declared guilty but insane and placed in the Central Mental Hospital, Mr. Gallagher subsequently absconded. In 1994, Brendan O'Donnell was responsible for the vicious deaths of Imelda Riney, her young son and a local curate. That these events took place 17 and 11 years ago begs the question why this House has not seen fit to change this legislation before now. It is a question that might better be put to the Minister's predecessor at the Department of Justice, Equality and Law Reform who introduced a Private Members' Bill along these lines while Opposition spokesperson on justice in 1996. This far into the life of the Government, legislation in this area is finally brought forward.

It is to be hoped that reforming legislation in this area will finally eliminate the phraseology that has bedevilled the discussion of criminal law in the context of persons who are psychologically and mentally under various forms of duress. While the Dáil in this session has passed statute law revision to remove some of the archaic legislation that included references to "lunatics", "idiots" and "imbeciles", it is something of an irony that a Bill which proposes to eliminate the verdict of guilty but insane is itself called the Criminal Law (Insanity) Bill. This is something that might be examined on Committee Stage. It seems a contradiction in terms that the Title of the legislation should include the pejorative word "insanity". Since the Bill proposes to introduce a new verdict of guilty with diminished responsibility, the word "insanity" in its Title should be replaced with the words "diminished responsibility".

Of vital importance is the intent of the Government in terms of providing resources to ensure the circumstances do not arise where persons of diminished responsibility could cause the type of pain and anguish experienced in the cases of John Gallagher and Brendan O'Donnell. I question whether adequate resources are given to identifying psychological illness to ensure such illness is correctly treated. The trend of Government actions, as evidenced by its proposal to relocate the Central Mental Hospital on the same campus as the new prison in Thornton Hall in County Dublin, speaks of an attitude that does not properly make the distinction between psychological disorders and the need for a criminal law system that has a penal element. As long as the thinking persists that there can and should be a central mental hospital as part of a campus with a prison, many of the objectives of this legislation will not be realised in the long term because it has not challenged the central misconceptions that exist in this area.

We must also consider how our legal system generally deals with criminal incidents involving occasions of diminished responsibility that may not be part of a long-term psychological disorder on the part of the perpetrator, particularly in the case of murder. A case that is currently prominent in the media, to which I will not refer directly because an appeal is pending, is relevant in this regard. The defence of diminished responsibility can be based on such circumstances as irrational fear, the need to protect property above persons and the question of whether a life is worth less or more in the case of members of a particular section of society. These are issues that could be addressed in the debate on this Bill.

Unfortunately, however, a debate is raging among the public that involves questioning the validity of much of what should be considered civilised values. Where people have fears, those are most adequately addressed by better socialisation and policing. They should never be addressed by one person or groups of people acting in a vigilante fashion in deciding whether one life is worth less than another. Such an approach represents a collective irrationality and a collective psychological disorder in society at large. The case to which I refer may be beyond the scope of this Bill but it raises the issues of diminished responsibility and irrational behaviour. Where the death of a person is caused by the actions of another, irrespective of the fears and concerns of the latter, it diminishes our society. We must be more honest about this.

I regret that I heard a prominent public representative, a former Member of this House, speaking on this case in the national media in a way that compromises its further progress through the courts. This is not helpful in the circumstances and particularly so for the individual concerned. We must debate the wider issues in the context of the value of human life and the circumstances in which people can feel safe and secure in their homes. These are issues from which many politicians are running.

It has taken a long time to produce this legislation and we could go even further in distancing ourselves from unnecessary, archaic and insulting language in dealing with psychological and psychiatric disorders. In terms of how we use our resources as a society in making a proper distinction between criminal acts and acts of a criminal nature committed by persons not in full possession of their mental capacities on a particular occasion, it is clear that we still have a distance to travel. This is attentive legislation but it is only basically reforming. If more is not done, other types of reforming legislation will be required and there will be more hypocritical talk about how this problem should be dealt with.

I welcome the opportunity to speak on this legislation. As my colleague, Deputy Jim O'Keeffe, said at the outset, it has taken some time to bring it to the House. One cannot but point to the case to which Deputy Boyle referred. I have listened to the radio debate and it is clear how difficult it is for some people to agree on how particular incidents should be dealt with. This is a case where a man lost his life in circumstances where the person responsible for his death was living in fear and dread. The argument can be made that the latter was not absolutely aware of the seriousness of his actions. This is a case that may come back before the courts so one must be careful in speaking about it.

We see clearly in the media that people have different views on this case. It comes back to an issue discussed in the House many times. We can have all the law we like, but we do not have the troops on the ground to implement it. There is not a sufficient number of gardaí among the people. There were supposed to be 2,000 additional gardaí but there are only 300. Far worse, hundreds of gardaí are stuck behind desks in work which could be done by civilians. People in rural areas, particularly Border areas such as where I am from, live in fear because the Garda personnel are not available to deal with occurrences. Those people do not have the full support of the nation of which we are all proud, particularly when we have so much money. It is serious when that money is not used properly to allow people to live and have security in their own homes. I do not condone anyone taking the law into his or her own hands. Those living in isolated areas know there is no hope of support if they call 999, a fear that must be understood.

I admit I often read the explanatory memorandum rather than the Bill because the spokesman on justice is the one who should go through the legal technicalities. The explanatory memorandum states: "With the development of modern psychiatry and greater understanding of the underlying causes of mental illness and its associated conditions, it has become apparent that this area of the criminal law needs clarification and development." That sentence made my blood boil. Today, there are more suicides than ever, with more people under pressure.

On umpteen occasions, I have dealt with individuals in my constituency office after they were refused psychiatric service support and access to full-time treatment, even in the short term. In one case, an individual committed suicide only five days after being refused. To suggest psychiatric services have improved is ridiculous. We now spend less money on the treatment of mental illnesses than when times were bad, yet there are more suicides than ever. When such statements as the one I quoted are written, we must ensure we know what we are talking about.

If one attends the funerals of those who die as a direct or indirect result of insanity, one realises we are not dealing properly with this problem. We may have a more modern way of dealing with mental illnesses and fewer people may be committed, but there are cases such as that of Fred Williamson. His cousin was buried last Saturday, almost a year after his death. She was a handicapped child who depended on Freddie. However, their matter was allowed drag on when support or treatment would have solved their problems. I feel very emotional about this issue as they were good neighbours of mine. While that case may not be relevant to the Bill, the way in which people are treated is relevant. Some cases involving individuals with mental illnesses do not end up in the courts.

I accept there are people who are insane and not fit to be tried. We need services that can decide whether an individual is genuinely insane. One can never forget the victims such as in the case of Annie Gillespie and her daughter who died in Sligo as a result of Mr. Gallagher's actions. I recall canvassing in County Mayo, during what is now known as the Ring by-election, when one could not go to houses at night because a young priest, a mother and her child had been murdered in a nearby locality. Once 9 p.m. came, we stopped canvassing because people were scared. Again, in this case, the individual who perpetrated the crimes was insane.

Such people must be locked up and properly controlled to ensure they never carry out the same actions again. There have been instances of murders and serious crimes committed by former inmates of psychiatric institutions or those released from the Central Mental Hospital. It is important for the public to be aware of this side of the coin to ensure, as far as is possible, proper balance is achieved between dealing with someone who has committed a crime while psychiatrically ill and the protection of the public from further crimes. Whatever regulations are made, we must not only protect the rights of an insane individual and have him or her housed in a proper institution rather than a jail, we must also ensure he or she serves the time for the crime committed.

There is an issue around the judgment of diminished responsibility. While I agree with the Bill as presented, there is a need to change some of its language to bring it into line with modern thinking. While the laws must be changed, the manpower also must be provided to ensure people feel safe in their homes. We must also ensure individuals with insanity problems are controlled as far as possible.

I welcome this important Bill which deals with a sensitive and, to some extent, confused area. Courts and juries have had difficulties with the issues pertaining to this area over many years. The laws on criminal insanity go back 200 years, from the lunacy Acts of the 1820s to the Juries Act in 1976. The provisions of the Criminal Law (Insanity) Bill are drawn from the various recommendations of the Henchy report in 1978. The Bill has been a long time in coming as the year in which it first saw the light of day, 2002, is three years ago. It is often said that the wheels of justice move slowly, but they move especially slowly for people with mental disorder.

Taking into account the current prison population, there are two categories of prisoner that stand out. John Lonergan, the governor of Mountjoy Prison recently stated that those from poor backgrounds comprise a large proportion of the prison population. The other section is composed of those who have various forms and degrees of mental disorder. This relates to the issue of funding mental health services. In recent years we have especially seen a considerable reduction in such funding. This corresponded with the idea of moving mental health into community care, an idea with which we all agree and would like to see occurring to an even greater extent than is visible.

Unfortunately, the move into community care was not accompanied by necessary funding, but rather by a reduction in funding. Mental health services should be made available to a large extent in the community but major funding in the area is necessary. The lack of such funding and consequent services has left many individuals on the streets or otherwise homeless, finding themselves in situations where they break the law and eventually being imprisoned. This Bill should be extended to cover this population.

The mental health area must be improved in terms of funding, resources and management. This would ensure a reduction in the number of those incarcerated who have various degrees of mental health problems. Those prisoners who have mental health problems should have treatment facilities available to them within the Prison Service. This is not currently the case as an unsatisfactory quality and quantity of service is available to this population.

With the recent purchase of land for the Thornton Hall complex, there has been a proposal that the Central Mental Hospital be located on the same site. This flies in the face of recommendations, ideas and proposals in this legislation. Such a facility should have a stand-alone site and not be integrated with the proposed prison. This is a widely held view both in the Oireachtas and outside it. It is difficult to see how such a proposal could sit with what is a modernisation of legislation through the Bill before us.

Modern psychiatry has led to greater understanding of the area of mental illness and associated conditions. As a result, the law must be clarified and developed as current law goes back almost 200 years. The Bill has new provisions dealing with fitness to be tried, as well as new rules and regulations dealing with appeal against findings, a statutory definition and restatement of the test for criminal insanity based on existing rules, and a new verdict of not guilty by reason of insanity. This verdict would replace the current position of finding a person guilty but insane. There is a new provision bringing about the possibility of a plea of guilty with diminished responsibility in the case of murder.

These provisions are welcome and in line with modern psychiatric thought. This area relates to the European Convention on Human Rights. I welcome the new review body, the mental health review board, that will be introduced with this legislation. It is particularly important. Current law goes back as far as the Lunacy Regulation (Ireland) Act 1871 and the M'Naghten rules from 1821 and 1843. The Bill is therefore not before its time. I welcome it and hope that services for those who are mentally ill, both in the community and in the prison environment, will be examined on Committee Stage.

I welcome the opportunity to speak on this Bill which is designed to update criminal law relating to insanity, taking into account various advances which have occurred in psychiatry. It is generally recognised that a number of advances have come about in psychiatry from the mid-1950s, particularly with the introduction of medication and related improvements. We now tend to intervene much earlier in illnesses, leading to a more successful treatment. The key to such success is treating people in their environment. It would be more to our advantage if there could be more domestic care.

Much current law regarding insanity almost goes back to the Act of Union, and it is past time that such legislation was brought into the 21st century. We have been working with outdated law for a long time and there is a great need to bring it forward. This Bill is an attempt to do so and, although it may not get every facet correct, it is at least a move in the right direction. This area of law urgently requires reform and mental health policy should be brought more in line with obligations under the European Convention on Human Rights.

The Bill is timely in that it reviews and modernises legislation dating from pre-Victorian times. There was a time when people who became insane were taken to lunatic asylums and effectively locked up for the rest of their lives irrespective of what their actions had been. There was no chance that they could get out. In most cases, their relatives wished to forget about them. Now, there are sad instances of people discovering they had an uncle, aunt, cousin or whoever who was locked up in a psychiatric institution. It was part of the so-called great system pertaining to the late 1950s. Numbers peaked and conditions were not good in terms of people not having their own attire and so forth. People would not accept that conditions were so bad. These people were forgotten about.

Those who drafted this Bill could have provided a somewhat less crude and insensitive Title than the "insanity" Bill. The term conjures the wrong images. I noted that many speakers found the language quite offensive. A submission I have received from the Mental Health Nurse Managers Ireland group suggests the removal of the terms "insanity" and "mental handicap" to prevent the continuation of their use. It claims the stigmatisation effects of such words should not be underestimated and that this terminology is outdated. These people work in the system and I agree that it is outdated. The words "mental disorder" and "intellectual disability" are in line with the Mental Health Act 2001.

We now live in a slightly more enlightened era and we should use terms that are inoffensive. For example, we referred to people who were mentally ill as lunatics in years past. The lunatic asylum became the mental hospital and then the psychiatric hospital. These types of terminology are not useful. The term "mental handicap" in the disabilities sector has been changed to "learning disability". Such names continually change, and rightly so. These titles send out certain signals and there are a number of reasons such aspects should be changed.

Persons with mental illness who would be affected by this Bill would be stigmatised by the use of the word "insanity". It has no neurobiological definition and, as a concept in everyday language, is extremely broad and vaguely defined. Therefore, it is not surprising that this concept is neither used by nor useful to professionals in the neurosciences who regard so-called insane behaviour as the result of abnormalities or changes in the brain. It appears to be a convenient title for a Bill but the proposed review body is the mental health review board and not the insanity review board. That in itself sends a message.

It should not be beyond the ingenuity of the drafters to develop a more appropriate and less offensive Title. A rough medical translation would be psychosis, namely, the more severe types of mental illness involving hallucinations or delusions. The closest neurobiological parallel would be inherent in a disorder that would exhibit these symptoms. Of these, schizophrenia is the most potent example.

Under the new legislation, the current guilty but insane verdict will be replaced by a not guilty by reason of insanity verdict. We have often seen this type of legal defence presented in the United States of America's legal system on television. On a typical television legal show the defence lawyer brings in a psychologist who says the defendant should not be held accountable for his or her actions. This is generally because he or she has a certain mental illness that interferes with reasoning capacity. If the jury believes the person has this mental illness it invariably finds him or her guilty or not guilty. This raises a number of questions that are never clearly answered. Why does being mentally ill excuse someone from criminal guilt? How is a jury qualified to determine a person's mental state? What level of mental illness constitutes insanity? How is someone's insanity proven?

Temporary insanity is another issue. Familiar cases in this country have involved people claiming they are guilty but insane and being transferred to the Central Mental Hospital in Dundrum, to become better miraculously a number of years later, exhibiting no signs of insanity or mental illness. This must be examined as it is obvious that people have used this excuse to claim they were insane at the time but are now not so. One must ask the question whether it is a means of dodging a guilty verdict. It can be and has been used in the past.

The main reason this concept is so confusing is that the distinction between insanity and mental illness is rarely clarified. Mental illness and mental disorder are both psychiatric concepts while insanity, as I mentioned, is a cultural or legal concept. Both mental illness and insanity are related conditions but they are by no means synonymous. Mental illness at the time of the offence is a prerequisite for a not guilty by reason of insanity verdict but legal insanity is not simply a judgment of whether a person has a mental illness. Generally, this verdict is found if a defendant meets one of three conditions: first, due to a mental disorder, the defendant did not understand that what he or she was doing was illegal; second, the defendant did not know what he or she was doing due to a mental disorder; and third, the defendant was compelled to commit the crime by an irresistible force. The matter of irresistible force or impulse is a plea that can be frequently used as there has been a great deal of disagreement about it between the legal and the psychiatric professions. Such a plea might be entered into in respect of persons accused of paedophilia, for example.

A person should only be found guilty of a crime if he or she intended to commit it. If I bump into someone in my car, I am not guilty of an assault but I could be guilty of causing damage. The result is the same but I have not committed the crime as there was no intention. Perhaps I could be found guilty of a lesser crime, such as reckless or careless driving. We must examine the concept of a lack of full intention. It should not simply be the case that having a mental illness means no guilt. Perhaps there is partial guilt as there are certain levels of awareness, which should be considered in judgments. Judgments should not be absolute.

Mental illness can alter a person's perception of reality so that he or she does not realise the criminal nature of his or her actions and has no choice but to commit the crime. When this happens, a court would believe that the person lacked the element of intention necessary for criminal guilt. However, mental illness alone would not be a sufficient defence to establish a person's guilt or otherwise. Under this legislation, a judge will be enabled to seek a psychiatric opinion, which is welcome. Psychiatrists will be able to offer expert opinions about whether the person would require institutionalisation or otherwise, such as on a day patient or outpatient basis.

Nevertheless, the Bill does not specifically provide for the opportunity for an outsider to avail of services within the community. These community care services, which include nursing, day care, vocational rehabilitation or addiction counselling, can make major contributions to an offender's recovery. Care in the community would be a preferred option in modern mental health treatment and the inpatient committal should be used as an option of last resort. If one can treat a mental illness in a person's home and environment, it is much more likely there will be a better outcome. One is tackling illness at an earlier stage, which is the key to successful treatment in mental illness cases. For example, outreach and home-based teams have been established in County Monaghan, which seem to be successful in terms of reducing the number of people requiring admission. I am not suggesting that we should do away with admissions to psychiatric hospitals at any stage. There are ways of delivering more effective treatment and these should be examined and provided on a national basis. Inpatient mental health services should be exclusively for those people who need inpatient treatment.

Amendments to the Bill proposed the removal of the terms "insanity" and "mental handicap"; the inclusion of a statement of principles based on the international human rights instruments and including a section on rights based on international human rights instruments; the inclusion of provisions for an independent mental health advocacy system, the introduction of community and multidisciplinary perspectives throughout the Bill, and the relation of the Bill to the Mental Health Act 2001 by using the definition of "mental disorder" used in the Mental Health Act 2001; the change of the phrase "designated centres" to "approved centres" or as defined under the Mental Health Act 2001; the specification of the role of the Inspector of Mental Health Services to agree the inspection of centres designated under the Bill; the replacement of the mental health review board with mental health tribunals as defined in the Mental Health Act 2001; the introduction of provisions to address concerns raised in respect of the impact of the Bill on mental health services; the introduction of a provision of mental health assessment during trial and before sentencing; the inclusion of a section on the transfer of prisoners in secure forensic mental health facilities; the safeguarding of the rights of persons under 18 years of age to appropriate assessment, care, treatment and review; and the revision of explanatory and financial memorandums to reflect fully the resource implications of the established mental health provision within the criminal justice system which meets international standards of best practice, including human rights instruments.

On behalf of the Minister I thank all the Deputies who contributed to this debate on the Bill. Their detailed interest in its provisions reflects its importance and the Minister looks forward to a continuing and constructive input from them during the forthcoming Committee Stage debate. While the Minister is open to any suggestions which may be tabled with the intention of improving the Bill, he reminds the House that much time was spent both on Committee and Report Stages in the Seanad on amendments relating to some of the issues which Deputies raised during this Second Stage debate. He will table some other amendments, most of them textual or technical.

I will deal with some of the more substantive issues raised during the debate. However, if I do not have sufficient time to comment on other points raised by Deputies, I am sure they can be revisited on Committee Stage.

The question of diminished responsibility and of confining it to cases of murder was raised by Deputies Jim O'Keeffe and Gerard Murphy. As the Minister stated, the underlying purpose of the plea is to give the courts flexibility in sentencing in appropriate cases of unlawful killing. In other words, the plea is to be explained primarily in terms of the mandatory sentence for murder. There is no need to apply this concept of mitigation in the case of other crimes where there is no mandatory sentence. In those instances the judge can already take into account the mental condition of the convicted person and tailor the sentence accordingly. There might be some sense to apply diminished responsibility to other offences in a legal system which has fixed tariffs for specific offences or inflexible guideline sentencing principles which set out a going rate for particular offences and which leave no element of discretion to the trial judge. However, we do not have such fixed and rigid rules.

With regard to Deputy Gerard Murphy's question about the Minister being certain that the Judiciary will only apply diminished responsibility in cases of murder, I refer the Deputy to section 5 of the Bill which deals only with the circumstances where a person is tried for murder. The position could not be clearer.

However, there is already one statutory instance which comes very close to applying the concept, the Infanticide Act 1949, which contains special rules where a child under 12 months is killed by the mother while her mind is unbalanced in the aftermath of birth. In these circumstances the killing is infanticide. This is a species of manslaughter and the sentence is the same as for manslaughter which carries a sentence of up to life imprisonment. The Minister is considering, however, the relationship between this Act and section 5 of the Bill and he may return to the House with certain amendments in that regard.

Deputy Jim O'Keeffe expressed some concerns about the defence of irresistible impulse and how a person might decide whether an act was committed by way of such impulse. The issue of irresistible impulse was raised by Senator Henry on Committee Stage in the Seanad. The Minister explained at the time that the purpose of the Bill in terms of the test for insanity for the purposes of criminal law is to restate the current position as it exists in common law. The third limb of the test for insanity, the volitional element, as it exists in our law and as set out in section 4(1)(b)(iii) of the Bill is known as “irresistible impulse”. It has been referred to as the “policeman at the shoulder” test. In other words, would the person have still committed the act if a policeman had been standing right beside him. An affirmative answer indicates the test is met. To constitute this form of insanity, the person must have had an irresistible impulse and not an unresisted impulse and it must have arisen from a defect of reason due to a mental disorder. The defence of irresistible impulse was clearly accepted by the Supreme Court in the case of Doyle v. Wicklow County Council in 1974, although earlier cases had given indications that it might well form part of Irish law.

The projected costings of the review board versus thead hoc advisory committee were raised by Deputy Jim O’Keeffe, as were the costs associated with the establishment of the proposed independent mental health criminal law review board which will have full responsibility for the ongoing review, assessment and possible release of all persons detained in accordance with the provisions of the Bill. Currently the costs associated with reviews by an advisory committee may be broken down into committee fees and the fees payable to the patient’s representatives. The amounts will vary in each case depending on the time involved and the number of meetings required. However, it would be reasonable to assess the total fees involved per case to be in the region of €10,000 to €15,000.

The review board, however, will have a much higher workload and cases will be reviewed on an ongoing basis. The Minister has not yet decided on the number of members of the board. It will also need to have a permanent secretariat for administrative duties. While the Minister does not expect that the costs will be significant, he is unable to give the House any definitive figures yet.

The question of why certain of the Human Rights Commission's recommendations were not taken on board was raised by Deputies Jim O'Keeffe and Ó Snodaigh. In the short time available it would not be possible to outline the detail of the commission's recommendations and the reasons the Minister did not take all of them on board. I am sure attention will again be drawn to the commission's recommendations during the passage of the Bill through the House and the Minister will elaborate further at that time, if required.

Some of the points on which the commission commented have already been raised by Deputies during this debate. These would include such matters as the language used in the Bill, the inclusion of prisons in the definition of designated centres and the question of irresistible impulse. The commission also raised questions about,inter alia, the availability of medical evidence in fitness to be tried proceedings, the role of the mental health criminal law review board compared with the tribunals to be established under the Mental Health Act 2001, and the need to shorten the periods of review by the review board from six months to three months. One of the commission’s recommendations was addressed by way of amendment in the Seanad when the Minister reduced the period of detention for assessment purposes from 28 to 14 days.

The commission also had reservations about the consent of the Minister for Justice, Equality and Law Reform in the context of the powers of the new review board in section 11(6). Deputy Cuffe raised this point and expressed concern about the board's independence and procedures. The Minister sees no difficulty in this matter. Section 11(6) requires the review board to make specific provision in its review procedures for the matters listed. The inclusion of the requirement for the Minister's consent to the procedures is merely to ensure that these matters are specifically addressed. The review board will be fully independent in how it undertakes its review functions. The Minister has noted Deputy Gerard Murphy's comments and others on the composition of the review board. As I already stated, the Minister has not yet finalised his thoughts on the precise make-up of the board.

The protection of the public has been fully taken on board in the Bill. This matter has been raised by Deputies Jim O'Keeffe and Deenihan. The Minister is happy that the provisions of Bill are sufficient to ensure that the protection of the public will always be a priority. The provisions relating to the detention of persons found not guilty by reason of insanity or unfit to be tried, combined with the proposal for a criminal law mental health review board are paramount in this regard.

Views were expressed in the other House that the functions which the Bill confers on the review board could be performed by the mental health tribunals provided for in the Mental Health Act 2001. The Minister fully acknowledges the important work to be carried out by the mental health tribunals under the civil law system for both voluntary and involuntary referrals where breaches of the criminal law are not involved. However, the Minister does not accept that those tribunals should have a role in the area of law governed by this Bill.

As the Minister stated in the Seanad, public confidence in the criminal law must be maintained. If an individual is acquitted by reason of insanity, the public must know if it is appropriate for that person to be released from detention in a designated centre. Until now, it has been the responsibility of the Minister for Justice, Equality and Law Reform to make decisions whether the individual should go free from the Central Mental Hospital on the basis that he or she is cured. However, this must change for reasons associated with the Convention on Human Rights. Accordingly, a specialised board, the mental health criminal law review board, is being established to deal with all the issues involved arising out of the detention of persons who have committed criminal offences, including the matter of release back into the community.

The Minister points out that provision is made in section 11(6) for the Minister for Justice, Equality and Law Reform, the Director of Public Prosecutions and the Minister for Defence to be heard or represented at sittings of the review board. In the Minister's view, these provisions will ensure that issues relating to the protection of the public will always be kept very much to the fore when the review board is required to consider the possible release of such persons.

As regards the correspondence referred to by Deputy Deenihan during his speech, the Minister wishes to advise the Deputy that he has received the Deputy's letter and the matter is being attended to in his Department in consultation with the Garda authorities. The Minister will revert to him as soon as possible on the points raised.

The issue of definitions and language used inthe Bill was raised by Deputies Costello, Cowley, Cuffe, Ó Snodaigh, Gerard Murphy and Neville. Deputy Costello referred to the definition of mental disorder used in the Bill for determining criminal liability and to the complexities associated with the legal and medical overlaps in this regard.

Deputies Cuffe, Cowley, Ó Snodaigh and Gerard Murphy referred to the language in the Bill and the use of the words "insanity" and "mental handicap". These terms were the subject of much lengthy debate in the Seanad. On the definition of mental disorder, the Minister wishes to reiterate what he stated in his Second Stage speech. The defence of insanity raises complex issues involving the overlapping disciplines of law and medicine. The approach adopted in the Bill takes that overlap into account by providing for two definitions of mental disorder: one to be applied by the court for the purposes of the criminal law during the course of the trial, 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 of unfitness to be tried on the basis of the definition in the Mental Health Act 2001.

The policy underpinning this Bill is quite deliberate. That policy dictates that in the specific context of the Bill as a criminal law measure, the definition of the term mental disorder must first be framed against the existing position in common law. It is not proposed to move outside that framework and that is why the Bill does not propose to be radical in this most complex area. The Minister believes it is important to stress that no singular or uniform solution has been adopted in the various common law countries on this complex issue, including those with which we are closely connected.

Our law places the matter firmly within legal parameters directly related to personal responsibility for one's actions. In this scenario medical evidence will be influential but not decisive. This means that an accused who has been diagnosed as medically insane may fail to satisfy the criteria for legal insanity in the criminal law. The Bill is designed to deal primarily with the criminal law aspects of the issue and, once that issue has been determined by the court, with the question of care and treatment.

The Minister notes that calls to align the definition of mental disorder in the Bill with the definition in the Mental Health Act 2001 are misplaced. It is important to understand that the use of the term in the Bill is not to provide just a defence of mental disorder but mental disorder giving rise to the case that the accused person does not understand the nature of the act done or that it was wrong. That is the foundation on which our criminal law in this difficult area is built and the Minister feels that he must construct our approach in the Bill on those basic foundations and ensure that we do not disturb them.

On the broader issue of the language used in the Bill, the Minister does not wish to get into the detail now as he is sure it will be raised again on Committee Stage. However, in his opinion we cannot be too precious about language. Use of the word "insanity" conveys to ordinary people an appropriate meaning and it is easily understood. In the Minister's view, the use of less pejorative terminology might result in widespread use of the plea on a mischievous basis. It might also give the misleading impression that any mental disorder, no matter how trivial, would justify returning a verdict of not guilty by reason of mental disorder. The word "insanity" signifies a threshold of disorder which could not be regarded as trivial or minor. In my opinion, changing the word "insanity" to "mental disorder", for instance, would signify that the threshold is being lowered significantly.

Use of prisons as designated centres was raised by Deputies Costello, Cuffe, Ó Snodaigh and Gerard Murphy. The designation of centres where persons covered by the terms of this Bill will be accommodated is a matter for the Department of Health and Children, in consultation with the Department of Justice, Equality and Law Reform where such a centre is located within a prison. As the Minister stated in the Seanad when this point was raised, on the one hand the State has the duty to provide care and treatment for the person who has been found by a court to be unfit to be tried or not guilty of a criminal offence by reason of insanity. On the other hand, there may be situations where it might be appropriate to detain a person in a prison rather than in a psychiatric hospital. Unfortunately, that is the reality. We cannot rule out that at some stage the requirements of public safety may override other considerations and that a person may have to be detained within the confines of the most secure facility available.

The Minister wishes to make the point that we are talking about a quite exceptional circumstance here. The type of person involved could be someone with a mental disorder which manifests itself in abnormally violent or aggressive behaviour and with whom no designated centre would be equipped or staffed to deal.

Deputies Ó Snodaigh and Gerard Murphy referred to the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, otherwise known as General Assembly Resolution 46/119 of 17 December 1991. The Deputies questioned whether the proposals in the Bill which allowed for a prison, or part thereof, to be used as a designated centre were compatible with the UN principles. In the case of the exceptional cases I am talking about, the Minister thinks so.

Expenditure in the mental health services area, the need for additional resources for both inpatient and outpatient care and responsibility for Central Mental Hospital were raised by Deputies Costello, Cowley, Ó Snodaigh and Gerard Murphy. A number of comments were made on the levels of funding for mental health services and on the Minister's responsibilities for the Central Mental Hospital. I remind Deputies that responsibility for the resourcing of mental health services and related issues such as community-based facilities is a matter for the Department of Health and Children. That Department, not the Minister's Department as was suggested in some contributions, is also fully responsible for the Central Mental Hospital.

The need for consistency with the Mental Health Act 2001 was raised by Deputy Ó Snodaigh. A number of amendments were proposed on Committee and Report Stages in the Seanad which were designed to align the provisions of this Bill with those of the Mental Health Act 2001. The question of aligning the definition of mental disorder, to which I have referred, was chief among those amendments. The Minister profoundly disagreed with the proposition that there should be an alignment between the Bill and the 2001 Act and he will not be changing his view on this.

Without rehearsing the arguments in too much detail, 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 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. There should not be any spillover effects between the two areas of law.

Deputy Gerard Murphy raised the issue of intoxication and whether the term "intoxication" encompasses intoxication by drugs. He suggested clarification might be required on Committee Stage to explain the difference between so-called social drugs and drugs prescribed by a doctor. The Deputy also questioned whether a plea of diminished responsibility is now unacceptable in the case of intoxication. In the latter regard, the Minister presumes the Deputy was questioning whether a person could plead diminished responsibility due to his or her being intoxicated. I can confirm for the Deputy that intoxication would encompass substances other than alcohol. On the Deputy's other points, the reference in the Bill to intoxication arises in the context of the definition of "mental disorder". Its inclusion is to make it clear that a person who commits an offence cannot claim to be suffering from a mental disorder by virtue of his or her being intoxicated.

The Deputy also referred to section 3 and the power therein for the court to acquit if it believes there is a reasonable doubt that the defendant committed the act in question. The Deputy suggests this creates a conflict which the Minister must resolve in that it denotes a strong suspicion of guilt by the court in respect of the defendant in circumstances where the court decides not to acquit.

The Minister addressed the circumstances described by the Deputy during Report Stage in the Seanad by adding two new subsections, subsections (9) and (10), to section 3. This arose from Senator Tuffy's having raised this same point on Committee Stage. Having reflected on Senator Tuffy's amendment, the Minister took the view that there was potential in section 3(8), as drafted, for a court to conclude, without the benefit of a full trial, that there was not reasonable doubt that an accused carried out the alleged act. Clearly, such a conclusion could be prejudicial to the interests and good name of the accused thereafter or at any potential trial at some future date. The Minister therefore tabled official amendments that addressed the point raised by Senator Tuffy and Deputy Gerard Murphy.

Deputy Neville raised the issue of mental health courts. The establishment of a mental health court system on the lines of similar initiatives undertaken in the United States, particularly in Alaska, was proposed by the Irish Penal Reform Trust in its policy paper published in 2001 entitled Community Solutions to the Criminalisation of the Mentally Ill in Ireland. This type of initiative involves a centrally organised co-ordination of court, agency and mental health resources. All offenders with a history of mental illness would appear in these courts before judges who would have special expertise in mental health issues. The judge would also be responsible for co-ordinating the role of the court with the police, the prosecution, the defence and the mental health agencies.

The proposals in this Bill deal with certain aspects of this matter in the context of persons who come within the definition of criminal insanity in our criminal law and their referral by the courts to a designated centre as defined in the Bill. This is in line with a recommendation in the Henchy report. However, the Bill is not designed to alter the sentencing powers of courts to include treatment orders so that persons who are mentally ill but not found to be criminally insane and who are charged with or convicted of a criminal offence could be sent to an appropriate local hospital instead of being committed to prison.

While the Minister generally favours moves to ensure the more appropriate placement of persons suffering from mental illness as defined in criminal law and elsewhere, the proposal in question involves major policy and resource issues for my Department, the Prison Service, the Courts Service and, especially, the Department of Health and Children. In the circumstances, the immediate priority is the early enactment of the Criminal Law (Insanity) Bill.

Question put and agreed to.