Amendments Nos. 1, 32 and 49 are related and will be discussed together.
Criminal Law (Insanity) Bill 2002 [Seanad]: Report and Final Stages.
I move amendment No. 1:
In page 3, line 20, after "1883," to insert "TO AMEND THE INFANTICIDE ACT 1949,".
I mentioned on Committee Stage that I was considering whether to change the law on infanticide. Having examined the matter in consultation with the Attorney General's office, I have decided to proceed with two amendments to the Bill which provide for amendments to the Infanticide Act 1949. My first suggested amendment, the inclusion in section 5(3), follows from the recommendation of the Henchy report. In that report the Henchy committee pointed out that the only existing recognition of diminished responsibility is to be found in the Infanticide Act 1949. That Act currently has a reference to a necessary condition for a finding of infanticide, namely, that at the time of the killing of a child under 12 months, the balance of the mother's mind was disturbed by reason either of her not having fully recovered from giving birth to the child or the effect of lactation after the birth of the child. The Act enables the jury to return a verdict of infanticide instead of murder in such cases, with the punishment being as for manslaughter.
The Infanticide Act allows the prosecution to proffer a charge of infanticide rather than murder in the first instance, whereas section 5 of the Bill, which deals with diminished responsibility, requires that the accused be first charged with murder and the defence of diminished responsibility must be raised by the defendant. On humane grounds, the Henchy committee favoured the retention of the Infanticide Act, with the accused being dealt with in the same manner as if she had been found guilty of manslaughter on grounds of diminished responsibility.
My second proposed amendment is in line with that approach. It has the effect of removing the reference to punishment, which is objectionable in this day and age, in these unfortunate circumstances. This amendment provides for the removal of the reference to lactation in section 1(3)(c) of the 1949 Act. I have consulted with the Office of the Attorney General on this matter on the basis that there has been some academic and legal criticism of the perceived narrow, medical, psychiatric basis for infanticide as set out in the current law. Accordingly, I have decided to remove the reference to lactation, which is dubious, and to replace it with a reference to mental disorder within the meaning of this new Act.
These amendments give rise to a consequential amendment in the Long Title of the Bill. My third amendment in this group provides for the Long Title to reflect the fact that the Bill also amends the Infanticide Act.
What the Minister proposes is right, but it hinges on the definition of "mental disorder". A number of amendments to that definition are proposed also. The definition in the legislation reads:
"mental disorder" includes mental illness, mental handicap, dementia, or any disease of the mind but does not include intoxication.
The term "disease of the mind" is strange. The proposed amendment is that the Bill would refer to a "medical condition" rather than a disease of the mind —"at the time of the alleged offence he or she was suffering from a mental disorder such that he or she ought to be found not guilty".
Is the Minister satisfied that in changing from the word lactation, that this will cover the situation adequately? It is hardly a disease of the mind we are talking about. Would "medical condition" not be more appropriate terminology than "mental disorder"?
I understand that in 1949 the view was that lactation had an effect on the mind of mothers who were breastfeeding. Medical and psychiatric science have moved on from that. Issues such as post-puerperal depression and the like would not necessarily be linked to lactation in the technical sense and it is for that reason I put forward these amendments.
The Deputy will appreciate that the issue of "mental disorder" arises later in a separate grouping of amendments before the House. It would be better therefore to confine my remarks at this stage to what I have said. I am trying to remove what is an out of date and medically unsupportable proposition from the Infanticide Act and to modernise the language used in that Act to deal adequately with the phenomenon of mothers who shortly after birth, unfortunately, injure their child in circumstances where if it was a stranger it would amount to murder.
Amendments Nos. 2, 3, 4, 9, 13, 47 and 51 are related and amendments Nos. 5 to 8, inclusive, are alternatives to amendment No. 4. Amendments Nos. 2 to 9, inclusive, and 13, 47 and 51 will be discussed together.
I move amendment No. 2:
In page 4, between lines 2 and 3, to insert the following:
""intoxication" means being under the influence of any alcoholic drink, drug, solvent or any other substance or combination of substances;".
During Committee Stage debate of the definition of "mental disorder" Deputy English made the point in support of a Fine Gael amendment relating to intoxication that the Bill as presented did not adequately define "intoxication" or deal with the state of mind induced by intoxication. His principal concern was to ensure that the term "intoxication" embraced all intoxicants and not just alcohol.
It might be useful to refer to the report of the Law Reform Commission on intoxication published in November 1995. It states that the definition of intoxication or intoxicant, in the sense that either term involves the consumption of drugs as well as alcohol, does not appear to have given rise to any difficulty in any jurisdiction, including ours, studied by the commission in the course of its work, nor was it raised as an issue by any of the experts who met with the commission. In practice, intoxication is not accepted as a defence in Irish courts. The commission went on to point out that if anything, intoxication was found to be an aggravating factor.
In response to the points made by Deputies English and Costello on Committee Stage, I undertook to examine whether a definition of intoxication should be inserted in the Bill. I have come to the conclusion that for the sake of clarity, it would be better to define the term. Therefore, I propose a definition which is drawn from the definition in section 4 of the Public Order Act 1994. This should meet the concerns expressed by both Deputies and they should consider whether they are happy with the definition now provided.
The amendment defines intoxication as being "under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances". It is a fairly comprehensive definition.
With regard to amendments Nos. 4, 5, 6 and 7, Deputies already know my position on the issue of the language used in the Bill. These amendments were comprehensively dealt with in the Seanad and were discussed again, in some detail, on Committee Stage in this House, on the basis of formal amendments which were tabled by Deputy Costello, in the case of the three points under discussion. I do not want to repeat at length what I said on that occasion but with regard to amendments Nos. 4 and 13, lengthy discussions took place in the Seanad on the definitions and language used in the Bill. The reason behind some of the amendments proposed in the Seanad was to align the definition of mental disorder for the purpose of this Bill with that used in the Mental Health Act 2001. I profoundly disagreed with the proposition that there should be an alignment and continue to do so.
My reasons can be illustrated by an example. A person might have to be deprived of his or her liberty and committed to a mental institution for gross and chronic alcoholism. However, we do not want to allow a situation where, because that is possible, gross and chronic alcoholism can be grounds for claiming diminished responsibility in criminal law. Some argued that the two definitions should be aligned but when one is referring to criminal law, the range of mental conditions that one wants to provide for under insanity legislation is not the same as the range of conditions that one might want to provide for under health legislation covering the treatment of people for various disorders. Therefore, while strong arguments were put forward for using the same definition in both contexts, stronger arguments were put forward for not doing so.
As I said on Committee Stage in the Seanad, the purpose of the Mental Health Act 2001 is to govern the circumstances in which people can 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 court that people are to be excused from criminal responsibility in certain circumstances and to deal with other issues such as an inability to plead and so forth. There should be no spill-over effects between the two areas of law. In particular, if the High Court is deciding what exactly the term mental disorder, as used in the 2001 Act, means in the context of whether a person is liable to be committed to a mental institution against his or her wishes, that decision should not automatically feed into how criminal trials are run. The circumstances are different and two different policies could be at play.
To revert to my example of chronic alcoholism, criminal law effectively states that if a person drinks chronically, even if he or she is addicted to alcohol, and murders somebody while under the influence of an intoxicant, that is, if anything, an aggravating factor. At the same time, it may be very good policy under the Mental Health Act to commit somebody who suffers from that problem for treatment, against his or her wishes. If a High Court judge held, for instance, that chronic alcoholism was a fit reason to commit somebody under the 2001 Act and we align the two definitions, that might mean that it also becomes a defence to a murder charge in the criminal law. The same applies to drug addicts, who would be able to invoke as a defence the fact that because their condition was one that rendered them liable to be committed to a mental institution for treatment against their wishes, it followed automatically that they were entitled to rely on that fact as a reason for claiming diminished responsibility under ordinary criminal law. I do not want to chain the two concepts together. It is better to keep the two legal frameworks separate and to have judicial decisions made in the context of the relevant Act.
With regard to amendments Nos. 5 and 6, I said on Committee Stage I would look again at the use of the term handicap as it relates to mental disorder. I have done that but am still not convinced change is necessary. We use all sorts of words in the English language which are considered to be intolerable. However, the term mental handicap is not a pejorative term. I referred previously to the use of the word handicap in totally different contexts. It is not an exclusionary term. It simply exemplifies the fact that some people may be at a disadvantage relative to others. Sometimes we get very choosy and picky about the language we use, recent events notwithstanding, but the term handicap is not a pejorative term. In fact, in a sporting context, it is used to show an equalising tendency, whereby some people need assistance in order to compete on a level playing pitch. Mental handicap is a term which is easily understood. A juror would understand it and it is not a Victorian or pejorative term. Therefore, it is not worthwhile removing it from the Bill.
The definition of a mental disorder contained in the Bill is of fundamental importance and is tightly worded. To amend it in the manner suggested by amendment No. 7 would introduce uncertainty into an area where there can be no room for doubt. The reference to "other disease or medical condition" is far too vague and would allow arguments to be made which have the effect of widening the scope of the defence. I am not prepared to allow that to happen unless I am convinced that we know what we are doing when we insert vague terms.
I remain opposed to amendment No. 9, which was withdrawn on Committee Stage. I see no reason to define the term "mental illness". This Bill, in large measure, follows the recommendations made in the Henchy report from 1978. Indeed, it is a poor reflection on the political system that we are only coming to act on the Henchy report over a quarter of a century later. As far as the definition of mental illness is concerned, which is being discussed at length, the report includes a reference to mental illness but does not define it. What Judge Henchy and his fellow committee members proposed so long ago is still correct. I am concerned that if this amendment was adopted, it could open the prospect of personality disorders being brought within the definition. Such disorders are notoriously subjective from a psychiatric perspective. Jurors would then have to listen to psychiatric evidence as to what actually amounts to a personality disorder as opposed to a character trait. We are not in the business of excusing people from criminal liability because of their character or propensities. It must be much more fundamental than that. The criteria at paragraph (c), "serious disorder of thought form" and at (d), "a severe disturbance of mood" would set the threshold at an unacceptably low level. It would give rise to public disquiet, particularly if we inserted those provisions and juries began to let people off murder charges on the basis that they were suffering from a severe disturbance of mood or a serious disorder of thought form. We should stick with the text as it is and follow the Henchy report in that respect.
Amendment No. 47 proposes to change the reference to mental condition in section 17, dealing with evidential matters, to mental disorder. The term "mental condition" is correct in this context, as the question of whether an individual is suffering from a mental disorder as defined in the Bill would not have been addressed at that point of the proceeding. Section 39, attached to the Henchy report, deals with this very point. It illustrates why care must be taken with the use of these terms in the Bill. It too makes a distinction between "mental disorder", used generally in the Henchy report as the fundamental term, and "mental state", used in the Bill in the equivalent provision to section 17. The Henchy report made a distinction between the two definitions for the purpose corresponding to section 17. The reason for the distinction in the Henchy report and this Bill is to underscore the fact that in the specific matter of the requirement of notice being given to the prosecution about the fact that the defence intends to adduce evidence on the issue, it is not tied to the definition of "mental disorder" as used in the Bill, nor should it be.
Amendment No. 51 proposes to change the reference to "insanity" to "mental disorder" in the Short Title. The amendment cannot be accepted because corresponding changes would have to be made to the rest of the Bill's terminology. It would also be undesirable because the use of the less pejorative terminology, "mental disorder" instead of "insanity", may result in a 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. The word "insanity" signifies a threshold of disorder which cannot be regarded as trivial or minor. If one claims a person is insane in ordinary parlance, it does not just mean the person is a bit odd.
The criminal law is the main focus of the Bill. The term "insanity" is a term of art in connection with criminal law. I do not wish to introduce any doubt or uncertainty into the area. I do not want to wake up some morning, even after a restless night, to discover a judge has interpreted it in a way which was not originally envisaged by the House. This is an attempt to give direction to the courts as to how they should deal with these matters. Throwing up untried and vague language will prejudice, rather than advance, the administration of justice.
It is a pity that the grouping of amendment's could not have been divided up, as they cover much ground.
Amendment No. 3 relates to the definition of "intoxication". I welcome the Minister's amendment on this. It improves the situation we debated on Committee Stage. However, I do not like definitions where the same word is used as a noun and an adjective. In the Minister's proposal, the noun "intoxication" is defined by the adjective "intoxicating influence". It does not give a concrete definition. It is like saying "drunkenness" means "being drunk" or "intoxication" means "under an intoxicating influence". Although the Minister claims this is the definition used in the Criminal Justice (Public Order) Act 1994, the Act could have benefitted from a consideration of the appropriateness of the definition. The rest of the amendment covering the influence of any alcoholic drink, drug, solvent or any other substance or combination of substances is appropriate.
Amendment No. 6 proposes to delete the term "handicap" and substitute it with the term "disability". It relates to a concern expressed on Committee Stage that terminology should be as up-to-date as possible. On Committee Stage, the Minister agreed he would seek to determine whether more modern terminology could be used by consulting organisations dealing with disability. Has he done so and does he feel the Bill has the best wording?
The term "handicap" is used in sports, say horseracing, in a technical sense. "Disability" has overtaken "handicap" as accepted terminology. There are other terms such as "physically challenged" and "intellectually challenged". The amendment aims to ensure terms are not introduced that will grate with organisations working with people with disabilities.
Amendment No. 7 addresses the definition of "mental disorder". I am concerned that it includes mental illness, mental handicap, dementia or any disease of the mind. The term "disease of the mind" has particular resonance. While I accept it comes under the definition of "mental disorder", it is not broad enough to cover other mental conditions.
This would be true for the Minister's first amendment on the Infanticide Act 1949. Amendment No. 32 provides measures to deal with a woman found guilty of infanticide in accordance with subsection (1). The Minister correctly wants to delete the term "effect of lactation" from consideration of infanticide. However, how does the definition of "mental disorder" cover a postnatal situation? How is the state of mind of a woman covered in a possible case of infanticide? It includes mental illness, but it is not a mental illness, a mental handicap, dementia or a disease of the mind. I do not see where it fits in. It would fit in if the Minister accepted my proposal to delete "disease" and substitute "other disease or mental condition".
Amendment No. 47 proposes to substitute the term "mental condition" with the term "mental disorder". This is the opposite situation where the interpretation is too wide. I am suggesting the term "a mental disorder" to define it more specifically because "the mental condition" could refer to something else. One could have a mental condition if one was under stress. For example, let us say that a person had a very bad day at the office, came under severe stress and had a sleepless night.
One could be suffering from a hallucination that one's phone kept going off.
One could indeed. It could be a hallucination. Some sinister statistics might appear, which one knows are quite untrue but which may not appear to be quite untrue. To my mind, that could be a mental condition but I am not so sure that it is a mental disorder, so we should explore that particular definition.
Would the Deputy allow people to invoke the defence of inflated ego?
That would be an interesting addition to our definition. We could examine that but I suppose that is easily solved. One can deflate or puncture an ego fairly quickly too, so there are solutions to that condition without having recourse to medical practitioners. This House is a great way to ensure egos do not get beyond their normal, average size. I have some concerns about the definition which amendment No. 47 seeks to change.
My final amendment No. 51 concerns terminology also. I know the word "insanity" is used in the Title of the legislation but that is becoming an outdated description of a mental disorder.
I wish to deal with the question of language in amendment No. 5 and will revert to amendments Nos. 4 and 13 which are in this grouping. We dealt with the language issue on Committee Stage when the Minister said that in his view it was not pejorative or Victorian. He has repeated that view here. In dealing with legislation, especially amending legislation, we should always try to use the most modern terminology. For example, the language used in some of the old legislation which is to be repealed no longer has the same meaning it had 100 or 200 years ago. I recall that we dealt with the Aliens Act, which had a different meaning in the 1930s and 1940s. If one starts talking about aliens in today's terms, however, for most people it conjures up images of a green creature with two heads and huge ears.
As regards the Bill before us, even the Mental Health Commission said it considered the word "insanity" in the Bill's Title to be inappropriate as such terminology was outdated. My amendment, which is similar to Deputy Costello's, suggests changing the term "mental handicap" to "intellectual disability". The Minister is correct in stating that in horse racing, golf and other sports the term "handicap" is used. Outside the sporting domain, however, it is often regarded by the general public as derogatory to talk about somebody being handicapped. We should use this opportunity to change it to an appropriate term which has the meaning that we intend today. Obviously, we cannot plan for the future. Perhaps in 50 years when other parliamentarians are updating this legislation, they will have another term but we should always try to use the most modern terminology.
I attended an event yesterday at which I was able to examine the use of language in the convention on the elimination of all forms of racial discrimination. The committee working on that convention stated that "the use and maintenance of an offending term can at the present time be considered offensive and insulting, even if for an extended period it may not necessarily have been so regarded". Perhaps, therefore, the term "mental handicap" was not considered derogatory until recently. In this case we are dealing with another term but the same argument applies. That committee considered it to be its duty to recall the increased sensitivities in respect of words such as the offending term. The committee added that "in the interests of reconciliation, derogatory or offensive terms will not be used or displayed in future". The same should pertain in any instance where people have highlighted the fact that they would prefer that term not to be used in the legislation, as they have done in this case. We should have listened to what they said. It does not make any difference in terms of the legislation which can still proceed.
The other two amendments in my name, Nos. 4 and 13, seek to outline a definition of mental disorder. Having listened to the Minister on Committee Stage and again today, I still have not been won over to his argument on the two definitions concerned. I do not believe we should have two definitions of mental disorder. We should have a definition similar to that contained in the Mental Health Act 2001. Such definitions should be compatible across the board. If a caveat is required because of the situation in the courts, one can enter it there. I have outlined the definitions in amendment No. 13 to ensure we have a similar definition. I used the same argument when we were discussing disability in the Disability Act. We currently have three different definitions of disability in various legislation. Similarly, we will now have two definitions of a mental disorder.
The Mental Health Commission has raised questions about this matter, as did the National Disability Authority, which raised a substantial question mark over the definition. The authority stated:
We are concerned that the use of the two threshold definitions will be incompatible with human rights obligations since it would be easier to compel those before the courts than people living in the community and outside the criminal justice system to have mental health treatment. Also, those found unfit or insane under the proposed definition in the Bill will on occasion fail to qualify for hospital detention or treatment under the Mental Health Act.
Even at this late stage, I ask the Minister to re-examine this matter. Amendment No. 13 outlines exactly what is meant by "mental disorder". The amendment defines what is meant by "mental disorder" and the possible consequences, such as because of the varying severity of the illness, disability or dementia, somebody may be likely to harm himself or herself or is a threat to others or whether the treatment suggested would improve or alleviate the condition. It is in line with what the mental health commission suggested, and with most of the groups that made submissions and raised questions on the various definitions used. I ask the Minister, if at all possible, to consider the amendment.
In his response, the Minister adequately dealt with amendment No. 8 and the questions raised by Deputy English on Committee Stage.
The Minister maintains that inclusion of amendment No. 9 would lower the bar and create public disquiet to a certain extent. I do not accept this. The general public accepts that mental illness is an uncertain science. Without the guidance and advice of experts in all fields, it is impossible for ordinary people to understand what drives or motivates people with such disorders. It is not helpful to suggest that lay members of a jury would not be able to interpret or decide on explanations given by experts. Ultimately, if justice is to be done and seen to be done in a jury system, it is the jury's decision to interpret the advice given by experts in various fields.
I welcome the opportunity to speak in the debate on this Bill. Regarding amendments Nos. 5, 6 and 13, when we discuss definitions and language, it is important that we use proper and suitable language. We must listen to people directly involved in organisations and groups, particularly parents' groups, with focus on people with disabilities and their families. We must ensure the language used in legislation respects the rights of such people. We hear a great deal in this House about inclusion in society. If we are serious about it we must use the proper language and listen to the families and parents of people with disabilities and the people themselves on the terms used in the Bill.
When we discuss people with intellectual and physical disabilities we must move away from the idea that all they need is support. They are an important part of society, have a major contribution to make and have rights as citizens and taxpayers. This is often forgotten, particularly in lobbying for money for people with disabilities. Parents and families of people with disabilities are also taxpayers and have every entitlement to services in the State. They should not have to go cap in hand while people pretend to do good works and charity. The vast majority of parents of people with disabilities have rights as citizens and should be supported. I agree with the definition in amendment No. 13 because it is important.
When discussing crime in the context of this Bill, we must wake up to the reality that people with major mental disorders, who need our support and assistance, are on the streets causing havoc in their communities. I receive many calls at my clinic from particular families with a young son or daughter with a major illness who is responsible for assaults, violence and threats in his or her community and home. We must seek services for them. It is important to point this out.
The definition of "mental disorder" as outlined in the Bill is not compatible with the definition in the Mental Health Act 2001. In the Criminal Law (Insanity) Bill 2002, "mental disorder" is defined as including "mental illness, mental handicap, dementia or any disease of the mind but does not include intoxication". Section 3 of the Mental Health Act 2001 provides a more detailed and comprehensive definition of mental disorder. This leads to inconsistency in the Bill, as some sections refer to the definition of "mental disorder" as per the Mental Health Act 2001. As this definition underpins subsequent provisions of the Bill, it is essential that the definition of "mental disorder" is fully compliant with the definition of the Mental Health Act 2001 in all aspects of the proposed legislation.
I emphasise that when we discuss the Criminal Law (Insanity) Bill we must focus on two key issues, namely, definitions and the use of language when dealing with people with disabilities and that people in our communities with major mental disorders need support and services. If we do not act, somebody will be seriously hurt or killed. I am interested in preventing crime, which is a key strategy in any Department with responsibility for justice. We went into the numbers game this week regarding the Garda Síochána——
We are drifting away from the amendments before us.
Prevention of crime is an important part of any strategy and I support amendment No. 13.
Regarding the suggestion that the terms used in the Bill should be made identical to those in the Mental Health Act 2001, the Mental Health Commission re-examined this issue and wrote to me to state that the definition of "mental disorder" as used in the Criminal Law (Insanity) Bill 2002 is identical to the definition used in the Mental Health Act 2001 when referring to issues of treatment. The Criminal Law (Insanity) Bill uses a different definition of mental disorder when the matter is considered during court proceedings. The Mental Health Commission stated it now accepts the need for that variation. It examined the issue following the Seanad debate and came to the conclusion that the arguments I made were valid. I should have stated that when I spoke on the matter earlier.
I listened to all of the descriptions and euphemisms. Everybody is "challenged" nowadays. I can be described as "follicly challenged". However, it is also true that I am balding. Sometimes we get into a condition of euphemising everything. If it is the consensus of the House that we use the term "disability" rather than "handicap", on reflection and having considered the arguments advanced, it seems that Deputy Costello's amendment to remove the word "handicap" and insert "disability" is preferable.
I will graciously accept that.
The Deputy should not be too gracious.
In view of what was stated, it does not involve a point of principle, although I slightly distrust the constant moving of language, which occurs in the area of mental health particularly. Some of the phrases used with technical meaning in old Victorian criminal law and psychiatric books have completely gone out of currency. The term "imbecile" had a clear meaning to a Victorian or Edwardian doctor which it no longer has. Now it is term of common abuse and has no such meaning. Given that the Mental Health Commission is persuaded that there is an argument for not aligning the two definitions and that Deputy Costello has moved his amendment I propose, with the leave of the House, to deal with all these amendments along those lines.
To return to Deputy Gerard Murphy's proposal that we set out the ingredients, I made the point about severe disturbances in mood but that would be a very low threshold to present in a criminal justice trial. We all know what a severe disturbance in mood can entail. In those circumstances I ask the Deputy to accept that sometimes in the interests of defining a term one sets out three, four or five definitions, or symptoms in this instance, and find they do not encompass some other condition. This House might set out five or six symptoms in a Bill without thinking around the corner to other possible symptoms.
There is a canon of legal construction namely,expressio unius personae vel rei, est exclusio alterius, the express mention of one person or thing is the exclusion of another. On that basis we would tread on somewhat dangerous ground if we were to set out the symptoms in sub-paragraphs (a) to (e), as suggested by Deputy Gerard Murphy. I appreciate, however, that his amendment is constructively intended.
If the House agrees to accept Deputy Costello's amendment, and if it takes on board my comments about the Mental Health Commission's accepting the need for the variation I mentioned, we could reach consensus on those amendments.
I move amendment No. 3:
In page 4, between lines 2 and 3, to insert the following:
""intoxication" means in a state or condition induced by alcohol, a drug, or a combination of the two;".
Will the Minister define "intoxication" in this context? Can the great minds of the draftspeople in the Department of Justice, Equality and Law Reform not find a synonym for this word?
One can find a word in a thesaurus which has a fairly clear meaning but also means something else that sounds similar. I take the point that it looks slightly circular. Such definitions are frequently used in Acts, for example, "an assault for the purpose of this section means an assault which has the following characteristics".
Those are categories for a definition, this is an interpretation.
I do not haveRoget’s Thesaurus to hand to provide another word. There are many colloquial and other terms for having taken too much of something. I would prefer to leave the term as it is.
I move amendment No. 5:
In page 4, line 5, to delete "mental handicap" and substitute "intellectual disability".
The Minister has already indicated he will take on Deputy Costello's amendment.
We have discussed this amendment already with amendment No. 2.
I did not get the chance to come in a second time.
The difference between the two terms——
We cannot discuss this again. We have already discussed it.
We did not have a chance to speak a second time. We were given the chance only to make an opening comment.
Nobody offered. That is why I put the question.
I offered. "Intellectual disability" is the term used now, not "mental disability". That is the only difference between the two amendments, if the Minister is taking Deputy Costello's amendment on board.
There are lobby groups that want to expand the meaning of the term "intellectual disability". They are activists in this area and I admire them for that. This Act, however, does not have to follow what they, in different contexts, may want to achieve by including things within or outside the definition of intellectual disability. On balance, Deputy Costello's amendment No. 6 is preferable.
I move amendment No. 6:
In page 4, line 5, to delete "handicap" and substitute "disability".
I move amendment No. 7:
In page 4, line 6, to delete "disease" and substitute "other disease or medical condition".
Amendment No. 10, in the name of the Minister, arises out of Committee Stage proceedings. Amendments Nos. 11 and 38 are related. Amendments Nos. 10, 11 and 38 will be taken together by agreement.
I move amendment No. 10:
In page 4, between lines 8 and 9, to insert the following:
""patient", insections 11, 12 and 13, means a person detained in a designated centre pursuant to this Act;”.
This is a technical amendment which follows from one suggested by Fine Gael on Committee Stage. The current construction is somewhat unusual in that "patient" is defined in section 12 although it first appears in section 11 and is used again in section 13. Having discussed the matter with the Parliamentary Counsel I propose to relocate the definition to section 1. The amendment to section 12 is consequent on that change and simply provides for the removal of the definition of "patient" from section 12(1).
The Minister's amendment deals with the point we raised on Committee Stage.
Amendment No. 12 arises out of Committee Stage proceedings.
I move amendment No. 12:
In page 4, between lines 15 and 16, to insert the following:
2.—Every order made by the Minister or by the Minister for Health and Children under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made.
This is a fairly standard proposal to ensure there is some level of accountability in respect of these orders. We need some resort to the Houses of the Oireachtas. We often produce legislation which goes on to a shelf, or to whichever Department is responsible for its implementation, and forget about it. In most cases nothing is ever done with the legislation, as we know from the large quantity of Bills gathering dust, only certain sections of which are implemented.
This section is likely to be implemented, namely, orders made by the Minister under the Act, and the provision we make for that process. The problem is that we have no authority over those orders when they are made. They relate to detention, release and other matters regarding the review board and so on, that are very important. They concern a person's freedoms, care, treatment and appearance before the courts.
In normal circumstances no doubt everything will be fine but we do not have the luxury of washing our hands of an Act when we provide secondary powers to this Minister or the Minister for Health and Children to operate the legislation. None of these orders will be returned to the House. The Minister said on Committee Stage he did not want to have commencement and establishment orders revoked. That is fair enough and is why I have excluded them in my new amendment. My amendment is quite minimalist in that respect and requires only one step to be taken, namely that the orders be laid before the House. If they are, we have a passive rather than a proactive situation. It means some action can be taken but at the very least it means the orders can be on the floor of the House, are in the Library and can be inspected. People engaged in debating this legislation in the House might feel that is worthwhile and desirable, and that there is a duty to ensure the orders are in accordance with what people thought would happen when the legislation was being discussed.
I thank the Minister. He is in good form this morning.
I move amendment No. 14:
In page 4, lines 16 and 17, to delete all words from and including "established" in line 16 down to and including "1845" in line 17.
This is a drafting amendment as suggested by Parliamentary Counsel. There is no need to refer to the statutory basis for the Central Mental Hospital in the Bill because section 39 of the Mental Treatment Act 1961 already provides for the Central Criminal Lunatic Asylum established pursuant to the Central Criminal Lunatic Asylum Act 1845 to be styled and known as the Central Mental Hospital. Section 39 was preserved from the repeal of the 1961 Act by section 6 and the Schedule to the Mental Health Act 2001 so it is a redundant change which we can remove.
Amendment No. 15 arises out of committee proceedings, amendment No. 16 is an alternative, amendments Nos. 17, 28 and 40 are related and these amendments can be discussed together.
I move amendment No. 15:
In page 4, to delete lines 22 to 27 and substitute the following:
"(2) The Minister for Health and Children, after consultation with the Mental Health Commission established under section 32 of the Act of 2001 by order may—
(a) designate a psychiatric centre, or
(b) with the consent of the Minister, designate part of a prison,".
The issue of prisons or parts of prisons being designated as centres was the subject of much debate in the Seanad and has featured in the debates in this House on Second Stage and Committee Stage. I have made it clear why it is necessary for such places to be available for persons who are not suitable for detention either in the prison or in a designated centre. As I said on Committee Stage, the Henchy report recommended the establishment of special units for persons described as coming within a class referred to as psychopaths or sociopaths but who the committee considered it more proper to identify as persons suffering from a persistent order disability or personality which manifests itself in abnormally violent or aggressive conduct. The fact that such persons in these categories may not be amenable to treatment is also a factor.
I have taken into account the points made on Committee Stage and I am grateful to the Members here who made those points on that occasion. I have decided to provide for the designation only of a part of a prison rather than designating a whole prison as the Bill originally suggested, as a place of detention in what will hopefully be exceptional circumstances, where no other place would be suitable. In line with the recommendations in the Henchy report I am proposing an amendment which will allow the Minister for Health and Children, with the consent of the Minister for Justice, Equality and Law Reform, to designate a part of a prison as a designated centre. It will not be a matter for the Department of Justice, Equality and Law Reform but will have to be initiated by the Minister for Health and Children on the day, and consented to by the Minister for Justice, Equality and Law Reform.
I am also proposing a safeguard by giving the Mental Health Commission a role in that process. The Bill currently provides that the Mental Health Commission consultation procedure only applies in the case of designation of psychiatric centres. On Committee Stage I accepted it might be appropriate for an outside body to have some input into a decision made under the relevant paragraph to designate a part of a prison for detention purposes. My proposed amendment therefore provides for the extension of the Mental Health Commission's consultation procedure to the designation of part of a prison in these exceptional circumstances.
With reference to amendment No. 16 in my name, the Minister has gone some way towards addressing the concerns we raised on Committee Stage, but he has not gone far enough. I do not believe prison is at all an appropriate place in which to commit someone from the courts. I am not alone in this view. Among the UN principles for the protection of persons with mental illness and the improvement of mental health care, principle 1.1 states that all persons have a right to the best available mental health care, which shall be part of the health and social care system. The first UN congress on the prevention of crime and treatment of prisoners listed standard minimum rules for prisons which included the rule that prisoners found insane shall not be detained in prisons and shall be removed to mental institutions as soon as possible. It its submission, the National Disability Authority said it was not appropriate to designate any part of a prison for the assessment or treatment of persons with mental health or intellectual disability. The Mental Health Commission also said it was not appropriate, and that it appeared to be in contravention of the principle I outlined. The commission proposed that designated centres in addition to meeting the criteria specified for approved centres must also meet additional criteria, which arise later in the Bill.
Amendment No. 40 in my name addresses the fact that the powers of the prison governor are being extended if the eventuality of patients committed to the prisons is being covered. Under the Minister's amendment, a prison governor will have the additional role of a clinical director, without any additional training. That is odd, and at variance with normal practice. In its long submission, the Human Rights Commission outlined major concerns with this aspect. It said the use of prisons or sections of prisons is clearly prohibited by the UN principles. The commission says that any provision to allow the detention of mentally ill persons in prisons where adequate therapeutic services are not available, as is generally the case in Irish prisons, is wrong.
One could also consider aspects of the health services in prisons and the failure of our prison system to address the major problems we have in terms of people with mental or intellectual disabilities who are in prison, the major costs involved, and the fact that such people often emerge in worse shape than when they entered prison. Their disabilities are often exacerbated rather than addressed while in prison.
The Human Rights Commission also noted that the detention of mentally ill persons in prisons where staff are not equipped or trained to treat them appropriately is likely to have a detrimental effect on staff as well as on the detainees. The commission recommended that the term "designated centre" should not encompass any of the institutions not characterised as approved centres under the Mental Health Act 2001. It also recommended that reference to prisons should be removed and that a resource be made available to ensure adequate levels of accommodation in specialised, secure units in hospitals or clinics are put in place as a priority to accommodate any person committed to detention. That is the issue that needs to be addressed. If there is a need for specialised secure units, the State has a duty to begin putting those units in place so that they are not in prisons and are not required to be built in prisons. I hope they will never be used but given the nature of society and the illnesses from which people suffer, they probably will be used. If nobody is committed to them, that is all the better as it would show that some of our outpatient facilities are properly resourced to do that job.
In the Johnson case, the European Court of Justice held that the lack of suitable alternative facilities could not be used to justify inappropriate detention. In the event of a person being committed to prison despite his or her mental disorder and despite the court finding that he or she was of unsound mind, the likelihood is that he or she could go to the European Court and win a case against the Government because he or she was being held in an unsuitable facility. That issue needs to be taken on board.
If the Minister were to say this was a temporary measure of five years until such time as the specialist psychiatric facilities were built and that it would lapse after five years, I might consider it. Other than that it is not appropriate. If a court finds that a person has a psychiatric illness and is likely to be a danger to himself or herself or others, or is insane, not liable to the courts for his or her deeds and should be committed to a designated centre, then a suitable centre should be built. If the Minister were to agree that this was a temporary clause, I might consider withdrawing my amendment. Otherwise I will press my amendments Nos. 16, 28 and 40.
This is a vexed issue. On Committee Stage we spent some time discussing the appropriateness of the designation of a prison or part thereof as a suitable designated centre. The recommendation in the Henchy report of almost 30 years ago was that special units would be established to provide for persons who needed some care and detention facilities. We do not have even one special unit. The medical profession and the Prison Service loathe the idea that prison would be a centre to detain people in need of treatment. Prison has been used in the past as a dumping ground for people with specific disabilities and problems. The danger is that once it or a part thereof is designated, it will continue to be used as an easy dumping ground for people who are primarily in need of treatment rather than detention.
While the Minister has at least moved to designating a part and not the entirety of a prison, which is some indication that he is moving forward on the matter, there is still a serious problem. I do not know why he needs to designate a part of a prison. The Central Mental Hospital is a designated centre and has secure facilities. Any replacement for the Central Mental Hospital will also have secure facilities. If we simply say "prison", we are bringing ourselves into a situation where the primary factor is secure detention rather than treatment. That will always create a major problem in terms of what we are trying to do in this Bill.
I hope the Minister is not doing what I fear he is, namely, looking at the proposal for Thornton Hall in north county Dublin. The Minister's colleague, the Minister of State at the Department of Health and Children, Deputy Tim O'Malley, has reserved his decision on whether he wants part of the site for the Central Mental Hospital. If the intention is to locate the Central Mental Hospital in Thornton Hall as part of the prison complex — to designate part of a prison, in other words — there is a danger that people could be interchanged between the Central Mental Hospital and the prison in Thornton Hall and we could end up with the worst of both worlds where there would be tremendous confusion between the categories of treatment and detention.
Can facilities required for a violent offender, psychopath, sociopath or a person with a persistent personality disorder or whatever not be provided within the designated centre, namely, the Central Mental Hospital? Are we talking about large numbers of people? We need some statistics on this matter. If we are talking about a very small number, do we need to go that step too far in designating a prison or part of a prison? Inevitably there will not be the same level of treatment because that is not the function of a prison or a part of a prison. One could not have such people in a part of the prison no more than in the prison itself because one could not afford it.
We have only to look at what is proposed for the National Children's Hospital. The best way to get the maximum facilities is to have a single world class facility where all the services, surgical practices and treatments take place together. If part of a prison is supposed to be a psychiatric institution or a place for the accommodation of those with mental illness, dementia or disabilities of that nature, the position will be compounded.
Deputy Ó Snodaigh is correct. If it is the case that 30 years ago we sought to have a special unit established as a designated centre and now, with all the money available and all the modern thinking, we must still resort to designating a prison, it would appear we are regressing rather than progressing. We need some light at the end of the tunnel on this matter. It would be somewhat irresponsible of this House to pass legislation on the assumption that patients, the people we are talking about, would be sent to a detention or custodial centre and that we would simply add theimprimatur of designated centre as though that was appropriate. Will the Minister rethink that aspect? I realise we are on Report Stage but is there any need for this provision given the purpose of section 2(1) is to designate the Central Mental Hospital a designated centre? Also, the Minister for Health and Children, in consultation with the Mental Health Commission and the Minister for Justice, Equality and Law Reform, will designate a psychiatric centre. Could we not just leave it at that? Is it necessary to include amendment No. 15 in subsection (2)(b)? Could we simply accept the first part of the Minister’s amendment and leave out the second part? Would we not have adequate facilities, certainly in the short term, to deal with it through the Central Mental Hospital and, in the long term, to come up with the actual recommendation, which was a special unit? That would allow us examine the possibility of a special unit and perhaps amend this legislation in the future when a unit would be in place.
The whole concept of mental illness and prisons does not sit well with the general public but to a certain extent we are talking in the dark in that, as Deputy Costello said, we do not have any projected figures on the number of secure places needed in such a facility. We do not know whether this facility should be located in Dublin, whether prevention facilities should be made available or if the figures would justify such provincial facilities. In that context, it is better to tread slowly and recognise that one facility is sufficient for now. If it is proven that facilities are needed throughout the country, proper facilities away from prisons should be provided in that context.
I examined it carefully, and Deputy Ó Snodaigh has acknowledged that I have moved considerably from the original text, but in the last analysis what we are faced with is what it is reasonable to do with somebody who is beyond treatment, for whom therapy is no longer an issue and who is simply psychopathic to such an extraordinary extent that he or she is dangerous to anybody who might come in contact with him or her. In that narrow set of circumstances, do we build a unit somewhere and leave it unoccupied, with no staff, while waiting for somebody to come along? We are talking about a place behind walls with immense security provision around it waiting for a Hannibal Lecter type person to be admitted who is beyond treatment and is not in receipt of drugs, psychotherapy or anything else. Do we build such a unit or in those extreme circumstances do we do what is provided for in this Bill?
I take the point Deputy Ó Snodaigh made about the UN general principles but I remind him that those principles are stated to apply to the fullest extent possible with only such limited modifications and exceptions as are necessary in the circumstances. Under the European Convention on Human Rights Act, any decision to put a prisoner into one of these institutions would have to be taken, first, in accordance with the European Convention on Human Rights and, second, would have to be constitutional. We are talking about an exceptional case here. Deputy Costello mentioned figures but I am not in a position to predict the number of people with this condition that would come about but it could only be a handful.
Do we know the current figure?
If an order of this kind were made, the Mental Health Commission would have to be involved in the process. It would not be the Minister for Justice, Equality and Law Reform conveniencing himself. It would be the Minister for Health and Children of the day saying the facilities at the Central Mental Hospital were not appropriate for the person and that the person was effectively so dangerous that the CMH, or any other designated centre for the time being, was not an appropriate place for that person to be detained. From that point of view this is a measure of ultimate resort. I accept the point that we had more resources than we did when Judge Henchy drafted his report but on the other hand we are talking about resources. Members know that although we have resources there are other areas in which to use them. If the Minister for Health and Children were to come into the House and announce she proposed spending €15 million, €20 million or €30 million to put in place a secure unit on a greenfield site somewhere and she was asked by a Member — I presume this is a question she would answer rather than Professor Drumm — how she could justify spending €15 million or €30 million having watchmen and maintenance craftsmen keeping this unit going when there was nobody in it, would we say that was a sensible way to apply resources?
On the points Deputy Costello made, this is not a back-door method by me to get the CMH out to the Thornton site. If that decision is made it will have nothing to do with this provision. On the contrary, if it were located on a portion of the Thornton site it would be less reason for an order of this kind to be made because there would be no particular advantage one way or the other to making an order of this kind.
I probably put a bad thought in the Minister's head.
I am resisting all bad thoughts at the moment.
To reply to Deputy Ó Snodaigh, this is an exceptional power. There are designated centres in place. The Mental Health Commission would have to express a view on this and it is extremely unlikely, therefore, that it would be used in an abusive way because the Mental Health Commission would say we are going down the wrong track in this particular case. It is not as if a Minister for Health and Children could do this overnight in consort with me and get away with it. If that were to happen the Mental Health Commission would have to be involved in the plan. I want to quote from the Mental Health Commission's submission to the Department on the Bill as passed by the Seanad. It states:
The consultation by the Minister for Health and Children with the Mental Health Commission in relation to the designation of psychiatric centres, apart from the Central Mental Hospital, as designated centres is welcome. [That is section 2(2)(a)]. However, it is the view of the Mental Health Commission that the designated centre should also meet the criteria for registration as an approved centre as per the Mental Health Act 2001 and be so registered. The Mental Health Commission also wishes to highlight that if part of a prison is deemed to be a designated centre, then the mental health services provided in the prison will come within the remit of the Inspector of Mental Health Services and the Mental Health Commission.
The Mental Health Commission has examined this provision and it is saying this cannot be used to put it off campus, so to speak. If it is used for that purpose, it will have a function in regard to it.
I realise it is probably an extreme case and that this may only happen on a handful of occasions but if we are dealing with somebody who is beyond therapy, who cannot benefit from drugs or therapy of a counselling kind or whatever, a psychopathic, highly dangerous person who cannot be accommodated in anything approaching a normal mental health institution, there should be some means of dealing with those very rare cases. The safeguards being put in the Bill to the effect that the initiative must come from the Minister for Health and Children, that it must be done with the consent of the Minister for Justice, Equality and Law Reform and that the Mental Health Commission must be involved in the whole process and take on a supervisory role, means it is not likely to widen out into some abusive arrangement. In those circumstances, I ask the Deputies to accept the amendments.
I acknowledge that the Minister has moved on this issue and I did not suggest that it would be used in an abusive way. I do not believe prison is an appropriate place for such people and that has been borne out by others. The commission also believes that if this Bill is passed it would have to have a role and nobody would suggest otherwise. The commission and others stated that the Central Mental Hospital is the only facility that can meet the needs of those patients requiring medium or high levels of security. If a unit needs to be built for a Hannibal Lecter type individual, the grounds of the Central Mental Hospital might be the appropriate place. The Minister referred to cases where there would be no appropriate medication or therapy, but the very fact of committing someone to such an institution would oblige that institution to use every available therapy to alleviate the person's problems. Otherwise, we are giving up hope on someone and we must always hope to help persons with a mental disorder, even if it is as severe as the example provided by the Minister.
The Minister stated that the commission and the inspectorate would have a role in viewing and visiting a designated part of a prison. However, the prison officers and the prison governor are not qualified, so a huge level of resources would have to be diverted from somewhere else to address one person within the prison system. At least within the grounds of the Central Mental Hospital, such staff would be available and would have the appropriate specialist training, facilities and medication to deal with the person. My amendment should be accepted.
Deputies have two minutes to reply to the Minister on Report Stage amendments. We allow some latitude but we would like Deputies to be brief.
The thorny question is whether we need to go down the road outlined by the Minister. We need some clarification. What happens at the moment? Is there any statutory underpinning of the transfer system between the Central Mental Hospital and Mountjoy for exceptional cases? How often has this happened? What is the best medical advice on this? What are the numbers involved? Do we need a unit at all? Are the security measures in the Central Mental Hospital adequate to deal with the situation? It seems that the Central Mental Hospital is the place to deal with the situation envisaged here, if that situation is of any significance. We are in the dark on these issues to some extent.
The Minister indicated that the type of person to which he refers is beyond the possibility of care or treatment, that is, a person who is a complete psychopath and is not responsive to any treatment. Immediately after the Minister's amendment, the legislation states:
The Minister for Health and Children may by order designate a psychiatric centre or, with the consent of the Minister, a prison or any part thereof as a centre (and any psychiatric centre, prison or any part thereof so designated is in this Act referred to as "a designated centre") for the reception, detention and, where appropriate, care or treatment of persons or classes of persons committed or transferred.
It seems it is not appropriate to treat or care for the person to whom the Minister refers as that person has gone beyond such a stage. How many people are at that stage at the moment? We have not yet legislated for this, so there has not yet been any great outcry about such a situation envisaged by the Minister. We would have known all about characters like Hannibal Lecter for whom the Minister is making provision. Did the medical profession come to him about such people? How many of them are out there and how have they been treated thus far? If there is a major security problem, we should hear about it.
We should take on board the principle of the Henchy commission recommendations, namely, that a special unit be provided for seriously ill people who need treatment and secure detention. The cheapest and most pertinent place to do this is in the Central Mental Hospital, which is already a designated centre. Our past experience is that people have been transferred higgledy-piggledy from Mountjoy to the Central Mental Hospital without any great medical criteria. Once prison exists for these issues, the temptation is that it will be used and abused.
The policy behind this dates back to 1996. This provision may cause more trouble than it is worth. In those circumstances, the appropriate thing to do would be to accept Deputy Ó Snódaigh's amendment and to withdraw my own.
Is the Minister withdrawing amendment No. 15?
I presume it is the case that all the paragraphs collapse into one if Deputy Ó Snódaigh's amendment is accepted. We do not have paragraph (a) sitting in the middle of nowhere. I believe that to be the case.
I move amendmentNo. 16:
In page 4, lines 25 to 27, to delete all words from and including "or" in line 25, down to and including "thereof," in line 27.
Amendment No. 20 is in the name of the Minister. Amendment No. 21 is an alternative to Amendment No. 20, and Amendment No. 24 is an alternative to Amendment No. 23. Amendments Nos. 20, 21, 23 to 27, inclusive, 30, 31 and 39 are related and may be discussed together.
I move amendment No. 20:
In page 5, to delete lines 14 to 25 and substitute the following:
"(b) Subject to subsections (7) and (8), in a case to which paragraph (a) relates, the Court determines that an accused person is unfit to be tried, that Court shall adjourn the proceedings until further order, and may—
(i) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant tosubsection (6) and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, commit him or her to a specified designated centre until an order is made under section 12, or
(ii) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant tosubsection (6) and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001) and is in need of out-patient care or treatment in a designated centre, make such order as it thinks proper in relation to the accused person for out-patient treatment in a designated centre.”.
I stated on Committee Stage that I would re-examine the provisions of section 3. What I had in mind was that, as drafted, the provisions of the section did not go far enough to give the courts discretion to deal with a person on the basis that the degree of mental illness might not be serious enough to warrant inpatient care or treatment at a designated centre. Generally speaking, the criminal justice system is concerned with protecting the public, punishing criminals and administering the law in a fair and just manner.
However, the police and prosecutors in the courts should strive to conduct their business in a way that protects the rights not only of victims of crime but of particularly vulnerable persons, including those unfortunate enough to suffer from mental disorders. An important consideration in all this is that no one with a mental disorder should be inappropriately held in police custody or in prison. I am aware that there is concern that people with mental illnesses are prosecuted and imprisoned, often for relatively minor offences, and I think here of recent research by the national forensic science mental health service at the Central Mental Hospital in Dundrum, which was carried out for the Prison Service.
The Henchy report, on which much of this Bill is based, referred to the need to ensure that persons who under the existing law would pass, at least in the first instance, into a prison or other place of detention, should instead go to a designated centre to become a patient rather than a prisoner, generally under ultimate control of the courts. Section 3 has been drafted with that objective clearly in mind. The report, however, also envisages that the courts have the power, based on expert psychiatric opinion, to decree that outpatient treatment and community care should be the primary consideration, so that only those whose condition required it would be detained for inpatient services. It is that possibility that my amendment seeks to address, allowing a court to decide on the basis of expert opinion whether a person charged, whose fitness to stand trial is an issue, could be referred for treatment or care on an outpatient basis. The Mental Health Commission also wrote to me on this point, suggesting that I provide for this additional form of court diversion.
Overall, the section as amended will bring us more into line with the relevant 1991 UN principles referred to by Deputy Ó Snodaigh. In the circumstances, the amendments also meet concerns expressed by the Department of Health and Children, particularly concerning the Bill's implications for the provision of mental health services. Such conclusions could only be reached by the court on the basis of evidence provided by an appropriate medical officer that the accused person is suitable for outpatient treatment. We must protect the public too; we cannot have people put out of the courts who clearly should not be. There is an evidential basis.
I draw Deputies' attention to the terms of the amendments that provide for the outpatient option. There are references in the relevant subparagraphs that the accused person is suffering from a mental disorder or a mental disorder within the meaning of the 2001 Act. That is to ensure that in this context the court will be able to consider the widest possible range of mental illnesses, and not simply the narrow definition for insanity purposes.
The difference with the inpatient option is that, by confining the definition to a mental disorder within the meaning of the 2001 Act, the court would consider only the more serious cases of mental illness, which are not suitable for outpatient treatment or care. That is because mental disorder, as the term is defined in the 2001 Act, refers to the possibility of the person concerned causing immediate and serious harm to himself or other persons. There are references to aggressive behavioural symptoms or seriously irresponsible conduct. Clearly, in such cases, outpatient treatment or care should not be an option, and the relevant provisions have been drafted accordingly.
Amendment No. 25 is a consequential amendment arising from the amendment providing for a court to refer a person to outpatient treatment. In those circumstances, the reference to committal, which was originally framed in the context of sending someone for inpatient care or treatment, is inappropriate.
Regarding Amendments Nos. 21, 24, 26, 31 and 39, the revision of section 3 already allows a court to send a person to a designated centre, which includes a local psychiatric centre, for care or treatment. My earlier amendments also allow for that referral option. In the circumstances, the other amendments are unnecessary if the official ones are accepted by the House.
Is iad na leasuithe a chuir mé síos ná Uimh. 21, 24, 26, 30, 31 agus 39. Tá sé seo clúdaithe ag an Aire anois, agus glacaim lena bhfuil ráite aige maidir leis na leasuithe lena bhfuil muid ag déileáil faoi láthair. Is lá maith é, ós rud é go bhfuil an t-athrú sin luaite ag an Aire ionas gur féidir an cinneadh sin a dhéanamh maidir leo siúd a thagann os comhair na cúirte a bhfuil fadhbanna intinne acu. I welcome the Minister's decision, and I will not press the amendments.
Tá mé buíoch den Teachta.
I move amendment No. 22:
In page 5, to delete lines 41 to 48, and substitute the following:
"(c) If the determination under paragraph (b) is that the accused person is fit to be tried, the person shall be sent back by the court of trial to the District Court to enable that court to exercise its functions under the Criminal Procedure Act 1967.”.
I tabled this amendment on Committee Stage, and I do not intend to dwell on it. In normal circumstances, when someone comes before the District Court, the case's merits are debated, whereas the only question to be answered regarding someone in this case is whether the person is deemed fit to plead. He or she will be sent forward without any examination of the case's merits, which would be the normal procedure if someone were before the court for another offence. Effectively, we are bypassing one of the major functions of the initial court hearing. It goes straight to a higher court, and here I propose, if the determination under paragraph (b) is that the accused is fit to be tried, that the person be sent back by the court of trial to the District Court to enable it to exercise its functions under the Criminal Procedure Act 1967.
I considered this amendment, which the Deputy tendered previously. Senator Tuffy, on behalf of the Labour Party, tabled a similar amendment in the Seanad. I have accommodated it as far as I can. I went back, through my officials, to the Parliamentary Counsel, who felt that if we took the route suggested by the amendment, a game of ping-pong would start that would prove unsatisfactory. Having given it very careful consideration as promised, we are satisfied that the draftsman's wording is best.
I move amendment No. 23:
In page 6, to delete lines 13 to 23 and substitute the following:
"(c) Subject to subsections (7) and (8), if the judge determines that the accused person is unfit to be tried, he or she shall adjourn the proceedings until further order, and may—
(i) if he or she is satisfied, having considered the evidence of an approved medical officer adduced pursuant tosubsection (6) and any other evidence that may be adduced before him or her that the accused person is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, commit him or her to a specified designated centre until an order is made under section 12, or
(ii) if he or she is satisfied, having considered the evidence of an approved medical officer adduced pursuant tosubsection (6) and any other evidence that may be adduced before him or her that the accused person is suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001) and is in need of out-patient care or treatment in a designated centre, make such order as he or she thinks proper in relation to the accused person for out-patient treatment in a designated centre.”.
I move amendment No. 25:
In page 6, line 27, to delete "of committal".
I move amendment No. 27:
In page 6, to delete lines 35 to 41 and substitute the following:
"(b) Within the period of committal authorised by the court under this subsection, the approved medical officer concerned shall report to the court on whether in his or her opinion the accused person committed under paragraph (a) is
(i) suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, or
(ii) suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001) and is in need of out-patient care or treatment in a designated centre.".
I move amendment No. 29:
In page 7, between lines 33 and 34, to insert the following:
"(2) Where a person has been found guilty of an offence, but prior to passing sentence the court becomes of opinion that the person is suffering from a mental disorder, the court having imposed a sentence may recommend that the sentence shall be served in a specified designated centre until such time as the person is no longer in need of in-patient care and treatment and shall thereafter be served in a prison or place of detention, and the Minister shall have regard to such a recommendation.".
This amendment is to give the Minister some options in sentencing a person who "has been found guilty of an offence, but prior to passing sentence, the court becomes of the opinion that the person is suffering from mental disorder, the court, having imposed a sentence may recommend that the sentence shall be served in a specified designated centre until such times as the person is no longer in need of in-patient care and treatment and shall thereafter be served in a prison or place of detention". It is to give some further options in sentencing and to recognise that, primarily, people in designated centres are there for care and treatment. If such treatment is successful, the sentence can be dealt with in a normal custodial fashion.
There is nothing to prevent a judge who is passing sentence from expressing an opinion of this kind. Hence, making a formal statutory provision for it would elevate it to an unnecessary degree of importance. While I have an enormous respect for the Judiciary, sometimes the opinions of its members on the question of mental treatment may or may not be correct. It is more appropriate that the opinion of skilled professionals employed by the State to come to considered opinion in such matters receives primary attention.
One cannot stop a judge from making such a recommendation if he or she so wishes. However, if this provision were to be included in the statute, judges would almost certainly be asked to begin making recommendations. They would then ask on what basis should they make such recommendations and evidence would be brought before them, going this way and that. Time would be wasted by having a formal debate because there would be a statutory jurisdiction for the court to do so.
Hence, I would prefer if matters remained as they are. A judge who really believes something like this should be able to make a recommendation. It can then be left to the authorities to decide whether the judge's opinion is correct without having an adversarial debate with barristers on both sides calling evidence to get a recommendation. As the Deputy's amendment makes clear, such a recommendation would not be binding in any event. Hence, we would be better off if we left it without law attached to it.
I move amendment No. 32:
In page 8, between lines 40 and 41, to insert the following:
"(3) A woman found guilty of infanticide may be dealt with in accordance withsubsection (1).”.
I move amendmentNo. 33:
In page 11, lines 39 to 41, to delete all words from and including "shall" in line 39 down to and including "interest" in line 41 and substitute the following:
"shall ensure that the best interests of the person whose detention it reviews under this Act shall be the principle consideration with due regard being given to the interests of other persons who may be at risk of serious harm".
This amendment arises from the criticism of a number of groups of the Bill on the grounds that aspects of it are inconsistent with the Mental Health Act 2001. A number of areas will require amendment to be compliant with the provisions of the Mental Health Act. One such example is the operations of the proposed mental health (criminal law) review board, an bord athbhreithnithe meabhair-shláinte (an dlí coiriúl), which as the Bill is currently drafted "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 with the formulation adopted by the 2001 Act, so that there would be continuity between Acts. That Act states "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 the decision is not made". Basically, this amendment gives effect to that practical recommendation from the Human Rights Commission.
I have shown in this debate that I am quite prepared to accept views from Deputies Ó Snodaigh, Costello, Murphy and others. However, in this case, I do not agree with the Human Rights Commission. The existing wording strikes the balance properly between the welfare and safety of a detained person and that of the public. This amendment would attach more weight to the interests of the person detained and diminish the public interest or confine the public interest issue. The balance is properly struck at present.
While I do not wish to delay the proceedings of the House, at present I discharge some of these functions. Files appear on my desk almost daily containing recommendations from the relevant authorities that I should allow a person who was involved in one of these situations out of the Central Mental Hospital on day leave and so on. As one does so, one is struck by the likely consequences if such a person did something appalling. One must be careful with those powers.
Although I nearly always accept the recommendations of the professionals who deal with the individual in question, sometimes I add small restrictions because I am mindful of what would happen in terms of how any Minister would appear if he or she made such an order and the person went off the rails while availing of liberty. Consequently, the public good must be considered. The public also has rights in these matters and I prefer to leave the phraseology as it is.
Amendment No. 34 is cognate on amendment No. 37 and both will be discussed together.
I move amendment No. 34:
In page 12, line 41, after "oath" to insert "or affirmation".
This pertains to the question of having the choice of oath or affirmation. The Minister has stated that this is covered in the Interpretation Act. However, that Act merely states that the oaths and truths affirmation is for people who are entitled to affirm. That is not the same as including a general affirmation. While people who are entitled to affirm is one matter, a general entitlement to affirm is another. The oath refers to people who are entitled to affirm. However, it does not give a general right of affirmation and while the Minister has stated that it is covered by the Interpretation Act, I do not believe it is covered in a general fashion. If it is, perhaps the Minister will tell the House exactly where this is set out in the Act.
The Interpretation Act 2005 has since come into force and repeals the 1937 Act. The Parliamentary Counsel advises that it is unnecessary to make provision in this Bill for the inclusion of the word "affirmation". Section 21(1) of the 2005 Act states:
In an enactment, a word or expression to which a particular meaning, construction or effect is assigned byPart 1 of the Schedule has the meaning, construction or effect so assigned to it.
Part 1 of the Schedule defines "oath" as follows:
"oath", in the case of a person for the time being allowed by law to affirm or declare instead of swearing, includes affirmation or declaration.
It is therefore unnecessary to include the word "affirmation" in the Bill. That is really the same issue to which the Deputy referred.
That is my point. There is a precondition for someone——
However, the Deputy's point is that people should have an option not to take an oath even if they have a religious belief that would permit them to so do. It is much of a muchness. Does the Deputy want a person to opt for what, in his or her mind, is a second class declaration and to state that he or she believes in the oath but will only give an affirmation on this occasion? That is the issue. Somebody who does not believe in the oath and has a reasonable ground for not taking it is entitled to affirm. However, if somebody who does believe in it states that he or she will not supply it, then one must ask oneself what is going on here. Such a person believes he or she is entitled to take an oath, believes in the validity and the effect of an oath, and decides subjectively not to give it. The idea of all of this law is that people, in so far as their own beliefs permit, do what is as solemn as they can within their own belief structure to say that they are committing themselves to the truth of what they are saying. Deputy Costello is asking me, in this context, to state that people who believe in the oath should be excused the obligation to take it for no good reason, except that they want to give what in their own view is a second class statement to the same effect. I would prefer to deal with this as a broader issue, in criminal trials, etc. If there is some human rights or dignity issue or it is embarrassing for people to have to identify themselves one way or the other, then so be it. However, that would be an argument for getting rid of the oath for everybody and having an affirmation by everybody which had the same effect, regardless of whether one had a belief of what one was saying in a divine context or otherwise.
I take Deputy Costello's point. I am not oblivious to it. The new Act does not really change the point substantially. I do not want to start a legal revolution here today and state that the oath is becoming optional for people who believe in it.
The Minister will not start a legal revolution in the matter. My point is, where are the criteria for use of oath or affirmation? In fact, people take the oath or they affirm. Does a judge ask them their beliefs? This does not really happen in practice. In practice, they state that they wish to affirm. As it stands, a person is entitled to affirm if he or she is allowed by law to do so. That is all. What does that mean in practice? It does not refer to a person's beliefs. It is a mess. There is nothing clear about when one is entitled——
We could spend a day trying to research the law on this matter.
We could spend a day on it but the point is that my amendment is the correct one. The Minister is telling me that he does not want to get into that business because it is a bit of a morass.
That may well be the case. He is the Minister for Justice, Equality and Law Reform and he will be the one who will sort this out. There are no criteria, as I understand it, other than what is stated, which the Minister read out to me, to which nobody pays a blind bit of heed in any case. Will we give the general entitlement to people to affirm or to take an oath?
I agree that is the question but today is not the day to make that decision.
Then where do we stand on the matter? Perhaps the Minister would clarify it——
At the next Private Members' time Deputy Costello can introduce a Bill.
——for the Judiciary all over the country and for every citizen who may or may not have the beliefs of their childhood or do not understand exactly what the law states about this. They still will not understand and if the judge states in court that if a person is entitled by law he or she can affirm, the person will ask how he or she is entitled by law to affirm. The judge would answer that the Minister stated in the Dáil that it is one's beliefs that count. What if the person states his or her belief and that the law states something different,——
On one occasion a judge was trying to find out whether a child understood the meaning of the oath. He asked what was an oath and the child replied that it was a promise to God to tell the truth. The judge then asked what happens if one tells a lie having taken the oath and the child's reply was that one wins the case.
While I will not press the Minister unduly on the matter at this time, it seems that the Interpretation Act leaves the question of oath and affirmation in something of a limbo. Certainly, it is unsatisfactory. Perhaps we might return to the matter.
Limbo was abolished recently.
I move amendment No. 35:
In page 13, line 14, after "determined" to insert "by regulations made".
This relates to where the review board reviews its functions under the Act. My amendment provides that its determinations will be "by regulations made" so that we will have something clear on paper. The Minister has already agreed to take on board my proposal that all the orders made under the legislation will at least be presented to this House. This is an eminently desirable amendment, that all the procedures of the review board would be subject to regulations made so that we know exactly what is happening and these matters can be pursued and changed, as necessary, from time to time.
I carefully considered this amendment but I am still against it. It would hidebound the review board too much if it had to proceed by way of regulation the way Deputy Costello suggests. The board's procedures should be flexible and they should not be required to make regulations every time they lay down a procedure.
If there is nothing specific in terms of their procedures, can we be clear on the criteria under which decisions are made? My amendment proposed that a review by the review board, subject to the provisions of this Act, would be such as shall be determined "by regulations made". Will the review board make this up as it goes along without us having any opportunity of seeing the criteria?
There is no provision as to what would happen to the regulations anyway. There are no supporting amendments. There are only orders at present and, therefore, there would be a technical problem with it in any event.
As I stated on Committee Stage, I do not want to make the system difficult and have statutory instruments every time there is a small change in procedures operated by the review board. The board will be independent in the exercise of its functions. It will have a statutory duty, as we have just decided, to have regard to the welfare and safety of its clients and to the public interest. Unlike the position of the tribunals which do not require the consent of the Minister for Health and Children, I possess a role in that my consent is required for these rules to be drawn up by the review board. That is entirely appropriate in the light of my ministerial responsibility to the persons concerned and the public interest.
I am not disposed to accept the amendment but even if it were otherwise, we would have to state who would make these regulations, where were they to be laid, etc., and that is not needed.
I move amendment No. 38:
In page 14, to delete lines 30 to 32.
I move amendment No. 42:
In page 14, line 46, to delete "indictable".
The amendment only occurred to us following Committee Stage. The amendment seeks to remove the term "indictable" from section 12(3)(a). The reference should be to an offence because section 3 deals with summary offences, indictable offences triable summarily and indictable offences.
I move amendment No. 44:
In page 19, lines 30 and 31, to delete "Mental Health Act 2001" and substitute "Act of 2001".
This is a technical drafting amendment.
I move amendment No. 45:
In page 20, line 21, before "The" where it firstly occurs to insert "Notwithstanding subsection (1),".
This is another technical drafting amendment proposed by the Parliamentary Counsel. Its purpose is to make it clear that the review board is not reliant on the initiative of the Minister in regard to reviewing detentions pursuant to certification under section 14(2) or section 14(5)(a) so that it can act on its own initiative in reviewing detentions under section 14 generally.
I move amendment No. 46:
In page 20, between lines 30 and 31, to insert the following:
17.—Where the clinical director of a designated centre forms the opinion in relation to a prisoner detained in the centre pursuant to section 14 that he or she is no longer in need of in-patient care or treatment he or she shall, after consultation with the Minister, direct in writing—
(a) the transfer of the prisoner back to the prison from which he or she was transferred to the centre, or
(b) the transfer of the prisoner to such other prison as the Minister considers appropriate in all the circumstances of the case.
The amendment will permit the clinical director of a designated centre to order the transfer of a prisoner no longer in need of inpatient treatment at the centre back to the prison from which he or she was originally referred. The matter was drawn to the Department's attention by Dr. Harry Kennedy, the clinical director of the Central Mental Hospital. The lacuna in the Bill in this regard is at odds with the procedure in place whereby two doctors in the Central Mental Hospital can decertify a ministerial order patient, which has the effect of returning the prisoner to the prison from which he or she was originally transferred. Clearly, it is important for the treating consultant psychiatrist to be able to discharge a patient when he or she no longer needs care or treatment. Given these factors, I propose to deal with the matter by inserting a new section 17. Consultation with the Minister is required before a transfer back to a prison can be effected. This will ensure the prison from which the prisoner was originally transferred is the most suitable location at the time of transfer for him or her to be sent. In other words, if the prisoner came from Mountjoy Prison, the Minister might say he should be sent to Loughan House as it is more suitable orvice versa.
I move amendment No. 48:
In page 21, line 49, after "2006" to insert ", unless the context otherwise requires".
This is a technical drafting amendment, the purpose of which is to make it clear in the context of courts martial under the Defence Act 1954 that the two definitions of "mental disorder" must be borne in mind and that their application is dependent on the context in which they arise.
I move amendment No. 49:
In page 22, between lines 41 and 42, to insert the following:
20.—Section 1(3) of the Infanticide Act 1949 is hereby amended——
(a) in subsection (3)(c), by the substitution of “by reason of a mental disorder (within the meaning of the Criminal Law (Insanity) Act 2006)” for “by reason of the effect of lactation”, and
(b) by the substitution of “as for manslaughter and, on conviction may be dealt with under section 5(3) of the Criminal Law (Insanity) Act 2006 as if she had been found guilty of manslaughter on the grounds of diminished responsibility” for “and punished as for manslaughter.”
I move amendment No. 50:
In page 23, between lines 4 and 5, to insert the following:
23.—The Freedom of Information Act 1997, is amended in paragraph 1(5) of the First Schedule, by the insertion of the following:
"(b) the Mental Health Review Board,”.
I fully appreciate what the Deputy is driving at but it is possible to add bodies by statutory instrument under the Freedom of Information Act 1997. Given the sensitive remit and functions of the new review board, I am not disposed to bringing it under the Act on a statutory basis. There is no suggestion that the mental health commission or the mental health tribunal operating under its jurisdiction should come under the scope of the Act. It is provided that bodies can be added to the list of FOI bodies. I do not want to burden this body with a statutory obligation, which could not be amended subsequently, without legislation, particularly as it takes up its new functions and bearing in mind its sensitive remit, without giving it adequate consideration.
I appreciate the amendment. It is worthwhile to highlight that the legislation is outside the scope of the FOI Act but it may come under it. Could the Parliamentary Counsel's office consider rephrasing this provision in legislation so every Bill presented to the House would be presumed to come within the remit of the FOI Act, unless specifically excluded? This would be proactive, given that is why the legislation was introduced. However, each Bill must be examined separately now and sometime in future it may be included under the Act's remit. In the meantime, no opportunity is afforded to people to avail of the Act. Will the Parliamentary Counsel's office consider changing the mechanism it uses?
I will bring the Deputy's suggestion to the attention of the Parliamentary Counsel but I will not attach a recommendation.
I thank my officials for the work they have put into this. A quarter of a century has passed since this matter was first dealt with by Judge Henchy. He is one of our great judges and he is still alive and well. It would be churlish not to thank him for all the work he and his committee put into the original document.
Judge Henchy reported in 1978. It has taken us a while to get around to this but I compliment the Minister on addressing the issue and on his willingness to listen to our contributions. Sometimes we complain that Ministers do not listen to us but, on this occasion, the Minister has listened carefully and I thank him.
I would like to be associated with Deputy Costello's remarks. I thank the Minister and his officials for their time.
Fáiltím roimh an Bhille seo. Is gné an-chasta é, agus tá súil agam go mbainfidh an tír ar fad tairbhe as. Tá sé thar am againn déileáil leis seo, agus fáiltím roimh an deis a thug an tAire agus a chuid oifigeach dúinn. D'éist siad linn, agus ghlac siad leis na leasuithe a chuir muid síos. Tá Bille i bhfad níos foirfe againn anois.
The Bill, which is considered to be a Dáil initiated Bill in accordance with Article 22.2 of the Constitution, will be sent to the Seanad.