Joint Sub-Committee on Mental Health debate -
Tuesday, 6 Dec 2022

People Detained in Secure Forensic Mental Health Facilities: Discussion

Chairman

We will begin our consideration of the report by the Irish Penal Reform Trust, IPRT, on access to rights for people who are detained in secure forensic mental health facilities. The purpose of this meeting is for the sub-committee to discuss the report of the IPRT on access to rights for people who are detained in secure forensic mental health facilities. To enable to the sub-committee to consider this matter, I am pleased to welcome Ms Molly Joyce, legal and public affairs manager with the IPRT. I am also pleased to welcome Professor Eilionóir Flynn, director of the centre for disability law and policy, and Eilis Ní Chaoimh, who does research, both from the University of Galway and both of whom are joining us virtually via MS Teams. All those present in the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19.

I will read the note on privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that any such direction be complied with. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. Parliamentary privilege is considered to apply to the utterances of members participating online in a committee meeting when their participation is from within the precincts. There can be no assurances in relation to participation online from outside of the parliamentary precincts and members should be mindful of this when they are contributing.

Members are also reminded of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit a member to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask any members partaking via MS Teams to confirm that they are on the grounds of Leinster House campus prior to making a contribution to the meeting.

To commence our discussion, I will invite Ms Joyce to make her opening remarks on behalf of the IPRT. I sincerely welcome her on behalf of the sub-committee. I thank her for being so generous with her time and with her expertise.

The report is fascinating. We looked at it with great interest. I look forward to hearing the opening statements.

Ms Molly Joyce

I thank the Chair for the invitation and opportunity to meet with the subcommittee today to discuss our recently published report, Access to Rights for People Detained in Secure Forensic Mental Health Facilities in Ireland. We are delighted that two of the report authors, Professor Eilionóir Flynn and Eilís Ní Chaoimh, are also available to participate in today’s meeting. We will do our best to respond to any questions that committee members may have following our brief opening remarks.

By way of background, the Irish Penal Reform Trust, IPRT, is Ireland’s leading NGO campaigning for rights in the penal system and the progressive reform of Irish penal policy. Our core message is that a penal system that protects and promotes human rights, equality and social justice and relies upon prison only as a measure of last resort will contribute to safer communities for everyone.

I will outline the background to the report. In 2021, we commissioned the University of Galway’s centre for disability law and policy to carry out a scoping study to examine whether people currently detained in forensic mental health facilities in Ireland, namely the Central Mental Hospital, CMH, can access their rights. The research was funded by the Irish Human Rights and Equality Commission, IHREC, and the report builds on the gaps identified in our 2020 report, Making Rights Real for People with Disabilities in Prison. I have some copies of this report available if members would like to see it. It is important to note at the outset that this research was limited in scope. It involved a literature review mapping relevant Irish laws and policies as well as small-scale qualitative research involving interviews with key stakeholders within the forensic mental health system. Such stakeholders included staff at the National Forensic Mental Health Service, advocates working in the area of disability rights, a lawyer, and two organisations working in this area. This made up a total of ten interviewees. Regrettably, the limited scope of the project meant interviews with individuals actually detained in the CMH were not possible on this occasion.

The report ultimately aims to provide an overview of the issues arising around access to rights for people detained in the CMH, as well as an analysis of Ireland’s rights obligations under the UN Convention on the Rights of Persons with Disabilities, CRPD, and other human rights instruments. It was as much an educational experience and a knowledge-gathering experience for the IPRT as well as sharing that more widely.

With the findings of the report, what clearly emerges is that people with psychosocial disabilities who are currently detained in the CMH are not afforded their rights as enshrined in the CRPD and international human rights law. Examples of such rights breaches include issues around the process by which a person may come to be detained in the CMH. During the research, concerns were raised particularly as to the legal bases upon which people are detained, with the lawyer interviewed questioning whether there is any regular oversight of this. The report also notes concerns in respect of several of the pathways by which a person may come to be detained in the CMH. For example, it points out there is no limit on the length of time a person can be detained who is detained under a finding of unfitness to plead, with one staff member referring to a person in the CMH who appears to have been unfit to plead since the 1970s.

The second area of the findings concerned the breach of rights in daily life once a person is detained within the CMH. Concerns identified by the report included the fact that physical side effects of medications are not always fully explained to patients, the presence of an especially paternalistic culture within the CMH as compared with community-based services, and the ongoing use of seclusion and restraint within the CMH, with that hospital using such tools at a higher rate than other approved centres and failing to use alternatives where possible. The report argues that the latter in particular breaches Articles 15, 16 and 17 of CRPD that pertain to freedom from torture, freedom from violence and abuse, and the protection of the integrity of the person.

The third area of findings was around the review of detention and discharge from the CMH. Criticisms of the current structure and processes included no lay members or people with lived experience on the Mental Health (Criminal Law) Review Board; the minimum length of time of six months required between reviews, which was considered to be too long; decision-making being arguably paternalistic or overly concerned with risk; the process by which a person may be returned to the CMH following a conditional discharge, which is decided by one individual who is the CMH clinical director, although there is some oversight provided by the review board on those occasions; and the limited availability of placements and support within the community to which people can move on.

Throughout the report, the overarching point is made that the UN Committee on the Rights of Persons with Disabilities is clear that disability-specific forms of deprivation of liberty contravene the Convention on the Rights of Persons with Disabilities.

Furthermore, while in Ireland we often characterise our processes for referral to the CMH as a means of vindicating the rights of persons with disabilities, according to the committee’s interpretation of the convention, these processes in fact amount to a violation of rights under CRPD. The report accordingly recommends, as Ireland’s ultimate objective, the abolition of the current forensic mental health system. We, in the IPRT, recognise that this is very challenging and are realistic in our view that abolition of the current system is not going to happen overnight. The report, therefore, makes 17 more short-term recommendations that we hope would better align Ireland’s current system with the CRPD and bring us closer to a system that is ultimately CRPD-compliant.

These 17 recommendations are set out at pages 62 to 67 of the report. They include practical measures such as: increasing transparency by requiring the CMH to publish annual statistics on the legal basis for detention of all patients; starting to offer mental health treatment outside the CMH for those unfit to plead or found not guilty by reason of insanity or both; providing meaningful support to enable people to participate in the trial process rather than being deemed unfit to plead; ensuring access to independent advocacy within the CMH; mandating that all reported uses of seclusion and restraint include information on the alternatives attempted prior to the use of these practices; including people with lived experience on the Mental Health (Criminal Law) Review Board; and reviewing ongoing detention of individuals on a more frequent basis.

It is hoped that these suggested reforms, alongside the other recommendations in the report, will help work towards the overarching goal of ending involuntary treatment, and abolishing Ireland’s separate tracks of detention for all people with disabilities, including those labelled with a mental disorder. It is also hoped that the report's recommendations may lessen the harms caused to people currently detained in our forensic mental health system.

I wish to note, and emphasise, that this report was finalised before publication of the final report of the high-level taskfForce to consider the mental health and addiction challenges of those who come into contact with the criminal justice sector. This report was also finalised before the opening of the new CMH in Portrane earlier this month.

The IPRT welcomes both the high-level task force and the opening of the new CMH as progressive steps that will help address some of the current problems we see. In regards the task force, we particularly welcome the various recommendations made to better divert people from the criminal justice system wherever possible. However, we are disappointed that the proposed measures were not really costed within that report.

The opening of the new CMH has addressed some of the concerns raised in this report around the physical infrastructure of the old building in Dundrum. In particular, we welcome the fact that certain design features of the new CMH will address issues around patients' open access to the bathroom at night-time and better affords them privacy, which was a specific matter raised by interviewees for this report.

It is clear that both reforms will need to be met with adequate resourcing to ensure that the actions of the task force report can actually be implemented and that good practice can be maintained and progressed in the new CMH. It is also clear that while welcome, these steps alone will not be enough to address many of the issues identified in this report, and they will not in themselves create the broader cultural or paradigm shift towards CRPD recognition that is needed.

I thank the sub-committee for its invitation to attend and its attention to these important issues. I, and my colleagues from the University of Galway, are very happy to answer any questions that arise.

Chairman

I thank Ms Joyce and the first speaker is Deputy Ward from Sinn Féin.

Deputy Mark Ward

I thank the Chairman for allowing me to speak first. I apologise to the witnesses as I cannot stay for the entire meeting, and I usually do, as I must go somewhere else later.

I thank the IPRT and the University of Galway for carrying out this report. As Ms Joyce has said, the report highlights that individuals are being let down at each stage of being detained in the CMH. At the very start of the process there are questions about the oversight of the legal reasons, and why, persons are detained, as well as the unfitness to plead, which has led to one individual being detained in the Central Mental Hospital since 1970. I wonder how many other instances there are of people being detained for decades. If someone is deemed unfit to plead, what procedures or policies can be put in place to stop someone being detained for decades if he or she is unfit to plead, thus making this more humans rights-compliant?

Ms Molly Joyce

I will answer and then I will pass the question over to Professor Flynn, whom I know will wish to further comment on the matter.

In respect of what this report suggests, it is very clear that the current process of just deciding that someone is unfit to plead is not CRPD-compliant. We would look at decision-making supports for that person to actually enable him or her engage with the usual criminal justice process and, therefore, access his or her due process rights. As the Deputy has rightly identified, it is concerning to think that people who have not been convicted of a crime and who actually have only been accused of a crime could end up spending hugely long periods detained and most likely longer than people would have spent in prison if they had just gone through the process and been convicted.

Such situations can arise.

Regarding the figures available to identify how long people might be detained, there does not seem to be clear transparency, which is a real concern, to know how many people in the CMH might be in this position. Professor Flynn can elaborate on the supports and decision-making in more detail.

Professor Eilionóir Flynn

I thank the subcommittee for the invitation to present today and I thank the IPRT for a great partnership in this research report.

We do not have the data on how long individuals are detained currently in the CMH. We have called for that data in our report as a first step.

On what we could do differently with the unfitness to plead process, there are some interesting pilot projects. For example, colleagues of ours in the Melbourne Social Equity Institute have completed how exactly one would do this. For the project they worked with a number of marginalised groups where people were disproportionately found unfit to stand trial, including Aboriginal or indigenous people in Australia. They worked on alternatives to the current system that included support for the people to understand the trial proceedings and to communicate with their lawyer so that they could give their lawyer instructions and so that they could understand what was happening in the courtroom. They had the opportunity to try out the space, see how it would work and experience it before they were required to be present for the trial. They had support in police stations during questioning. A long-term process of support was put in place to not start from the assumption that the person would never be able to participate in the trial but support the person to fully participate and in a meaningful way take part in the trial procedure. This was found to be important for individuals not only because they deserve support to understand what is happening, which is something that many different communities and groups could benefit from and not just disabled people and those who have a label or diagnosis concerning their mental health. In fact, many different people who come into contact with the criminal justice system would benefit from this kind of support and accessibility in understanding how the system works and being able to navigate it better.

Deputy Mark Ward

I have two questions related to the Assisted Decision-Making (Capacity) (Amendment) Act and advance healthcare directives, AHDs. In terms of the new Act that went through the Seanad last week, how does it affect people detained in the CMH? Has the Act improved their basic human rights? I am interested in hearing what Professor Flynn thinks about the matter.

Professor Eilionóir Flynn

One of the compromises, which the Deputy will be aware, that was made by the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman, when he amended the Assisted Decision-Making (Capacity) Act was to extend some of the provisions around the applicability of AHDs to some people involuntarily detained under the Mental Health Act. That is on the civil side rather that the criminal detention side, which is what we are focusing on today. Directives were never on the table from the Minister, as far as I understand, regarding some people detained in the CMHl, for example, whether they are unfit to stand trial, not guilty by reason of insanity or been transferred from a prison environment to the CMH, nor any willingness to extend, legally binding advance healthcare directives to that particular group. Understandably, a lot of the focus has been on people involuntarily detained under the Mental Health Act on the civil side, and outside of the criminal justice system, needing to have their AHDs respected. That is really important and we fully support that. In fact, we are disappointed that that has not occurred in the amendments to the Act but this community was even more marginalised. People detained in the CMH were never really part of the discussion at all about having a legally binding AHD. They are also excluded under the Assisted Decision-Making (Capacity) Act 2015 from having their say, even if they make a perfectly valid AHD when they are well and setting out their wishes in terms of what treatments they would want to refuse if they were to subsequently lose capacity.

Those directives will not be followed or upheld and do not need to be respected under the law if those people are then found to be not guilty by reason of insanity or not fit to stand trial or if they are transferred out of a prison environment and into the CMH for some other reason. In such cases, they fall within the provisions of the Criminal Law (Insanity) Act 2006 and are specifically legally excluded from having legally binding AHDs. That is concerning. We understand why there might be a lack of willingness to extend legal rights to this group on the one hand but, on the other, this is a marginalised group of people who are already living in an extremely restrictive environment. As we know, having some measure of control over decisions made about their treatment is critical for people's recovery and may also help to address some of our ongoing concerns about the time people spend in these settings. If people had more control and choice with regard to their treatment options, they might not need to be detained in these settings for such long periods.

For all of those reasons, it is concerning that there has not been more advancement in respect of what the Assisted Decision-Making (Capacity) Act can offer to people in these settings in terms of decision-making supports. That is specifically on the AHD side. There is nothing to prevent people from using the other support options under the Act, including decision-making assistants or co-decision-makers with regard to the support they would like for making decisions in general. However, it is important to acknowledge than any AHDs made by individuals detained in the CMH will not be legally binding. My colleague, Ms Ní Chaoimh, would also like to come in on this.

Ms Eilís Ní Chaoimh

In response to an earlier point, I will give Deputies a sense of the number of people we are talking about. At any one time, there is usually 90 or so people detained in the Central Mental Hospital. In 2020-21, there were 24 review hearings for people who were detained having been found unfit to plead. If we assume there was a review hearing every six months or so, these 24 hearings probably account for 12 people. However, this is again unclear. There are no transparent data as to how many people are detained or the length of time for which they are detained. As I have said, we found out about that one instance of a person being detained for an extraordinarily long period through the interview process we engaged in. That is definitely one issue.

I also want to echo the point that the focus at the moment is on the idea that people would not be able to participate in a trial process. However, there is some great evidence that if people are given support to engage with the trial process, their rights are vindicated in the sense that they are given the choice to engage. As it stands at the moment, if people are found unfit to plead, they are essentially denied the right to engage in the trial process at all because it has been determined that they cannot understand what is happening. They end up in a situation where they are essentially in limbo and go to the CMH for extended periods.

Deputy Mark Ward

That seems odd. We live in a society in which data is key. Most of our policies are based on evidence, which is the best way to do things. I find it bizarre that no data on people detained in the CMH are obtainable. Is there any reason for that? It is the first I have heard of it. Is there any rationale behind it?

Ms Molly Joyce

I will jump in with a general point on the data and then pass over to the others to move into the expertise of the CMH. This is a significant issue across the entire criminal justice sector so I was not so surprised. For example, we do not have any up-to-date figures on the rate of disability within prisons or the rate of mental illness within prisons. The IPRT will often cite figures but some of the figures that we cite as to the levels are from a study carried out by Professor Harry Kennedy back in 2005. We are still using that study. There are some more recent figures that we use.

Deputy Mark Ward

I am sorry to cut across Ms Joyce but is her point on prisons in general, the Central Mental Hospital or the entire judicial system?

Ms Molly Joyce

I am talking about prisons specifically and about knowing, for example, how many people have an intellectual disability or are suffering from mental illness within prisons. It is very hard for us to know accurately. We know it is a big issue because we get a lot of communications about it and because it keeps being identified as an issue by all of the various monitoring bodies but access to clear figures and actual research is very limited. I am sure my colleagues can talk about the specific issues in the CMH.

Professor Eilionóir Flynn

I suppose one of the issues could be the sensitivity of the potential for identifying, because this is a very small group of people. Sometimes people who are in the CMH are there are as a result of high-profile cases, sensitive situations or tragic circumstances. Obviously, there needs to be respect for the data protection rights of people detained in the CMH, but that would not completely explain away why we do not know the breakdown for those 60 to 90 detained at any one time of the legal grounds for their detention or the length of their detention. That would not necessarily risk identifying anybody. It should be possible to provide that. It is not currently being provided. That is correct. I do not know if Ms Ní Chaoimh wanted to add any explanation there.

Ms Eilís Ní Chaoimh

No. I would only say that the figures that we get come from the Mental Health (Criminal Law) Review Board. Even looking at the figures, as I said, they state there were 24 hears. I can look at that and assume that it is two hearings a year per person, but I cannot say that for definite. They are concerned by how many hearings they have rather than the numbers of people who they are referring to and I could not say for certain that there were 12 people detained. Maybe a person was detained for a shorter period and did not get a review. It is unclear.

Deputy Mark Ward

I thank the Chair and thank all the witnesses as well for that report.

Chairman

I thank Deputy Ward. The next speaker is Deputy Hourigan from the Green Party.

Deputy Neasa Hourigan

I might stick to that topic for a moment in order to get some clarity. Is it that the academics have some sense that the data exists but not in a disaggregated version that would be available to researchers or NGOs - in other words, the data exists but it is just not made available - or is it that we are not collecting it? The reason I ask is because this comes up at the Joint Committee on Health all the time. There is a big difference between having the data and not making it available, and simply not collecting the data. Does Professor Flynn have a sense of whether the data is being collected and is simply not available or it is not being collected at all?

Professor Eilionóir Flynn

It is hard to identify what exactly is happening. Obviously, upon admission to CMH, there must be a record of the basis on which the person is being admitted. A record must exist at some point in that process but, as far as we could make out during this limited scoping review of the research, that is certainly not publicly-available data or data that could be easily extracted from internal records. The data that are made public are, as Ms Ní Chaoimh stated, the number of review hearings, for example. That is publicly available data that is not disaggregated or broken down in a way that it would be most useful to us to understand how many individuals it relates to, but the actual numbers and the grounds on which each of those numbers is based must exist at some level but are certainly not being made publicly available.

Deputy Neasa Hourigan

It sounds like the raw files are there but it is not being collated in any way that makes it accessible.

Professor Eilionóir Flynn

Correct.

Ms Eilís Ní Chaoimh

I will jump in and say that one of the lawyers we interviewed raised specific concerns and questioned whether that information is actually held. I would add that proviso. As already stated, in the context of that particular case of someone who had been found to be unfit to plead since the 1970s, among some of the interviewees there was a feeling that the person had been found. Perhaps "found" is not the right word, but there was a sense people were detained there for long periods historically and that there was maybe a lack of clarity around why they were being detained.

Deputy Neasa Hourigan

If we dig down into that, it was implied that the data was never collected to begin with and that there is not a complete file in respect of that individual in question's pathway through the system.

Ms Eilís Ní Chaoimh

That is correct, for historic reasons. If you are talking about people who are detained over long periods, the law changed. Currently, we are looking at the Criminal Law (Insanity) Act 2006. It was sort of a legacy issue. Because there are different pathways in, for most people who are in the CMH, it is to do with the Criminal Law (Insanity) Act. It will be a finding of not guilty by reason of insanity or unfitness to plead, but there is a possibility of transfer under the 2001 Act as well. There is also a possibility that someone could be made a ward and would then remain in the CMH under wardship.

There is a lack of clarity as to which of those processes is the reason the person is in the CMH.

Deputy Neasa Hourigan

That brings me to recommendation 15 and the review. I hope and presume that the example of somebody being detained since the 1970s is probably the worst-case scenario or the longest detention of which we are aware. I have a few questions about circumstances where somebody has been detained since the 1970s or 1980s. What is the best practice in terms of timely reviews? What happens on the ground? Who has access to those kind of reviews? What is the cost of a review? Is it more costly to consistently review somebody, say, every three or six months, than it is to formalise their detention in some other way or remove them from the CMH and put them in a community setting? I ask because I want to understand how long-term detention would interact with a more workable review system.

Ms Molly Joyce

The report says more than six months for a regular review and points to the 2001 Act, which is, I think, a review after an initial period of 21 days, and refers to the disparity between that. I will leave it to my colleagues from Galway to talk about best international practice in terms of what might be a better approach.

The IPRT is in a unique position because, as I said, this is information gathering for us. From our perspective what is really aligning, and really stood out to me from this report, was that we often are looking at the lengths of time people spend in prison obviously but hat is very definite. People know when they are going to get out most of the time, unless they are under a life sentence. Even then, there is a very clear process that they are going to follow. What struck from the report is that it does not appear that there is any kind of clear pathway. There is a pathway that people are told that they need to work through in order to come out and they have this review board. I am concerned that the there is no indication whether an ongoing continuous review will take place every four, eight, 12 or 25 years.

I wish to flag one thing that one of the lawyers commented on in the report - this is something I know from my background as a lawyer - namely, that clients will often say that they do not want to plead not guilty by reason of insanity because they know they could end up spending a lot longer in the CMH than would be the case if they were sent to prison. That is a real concern, and it is a very good question to be asked about what is a better approach. My colleagues may have examples of international best practice.

Professor Eilionóir Flynn

We agree in terms of the length of the review. Six months is a long time to go without a review in this kind of setting. Even to shorten the period for a review would not address some of the substantive and structural concerns that are leading to people spending long periods in the CMH overall. One of the findings of our research was that people could not progress as they would wish along the pathway that would eventually lead to release because the resources were not there to support them to spend short periods in the community supervised or to have temporary leave because the supports were not there outside of the CMH for them to do that or there were not sufficient resources in the CMH to support people to do those things that they needed to do. People who had tried really hard and had followed all the steps in a pathway, and had done everything they could do, were still not able to access things like leave because the support was no there on the other side. I certainly cannot say how much it costs to conduct a review. That information was not part of the research. I can say what certainly is needed is more resourcing or, indeed, a redistribution of existing resourcing to ensure that there is greater opportunity for people currently in the system to leave it. People need practical support in order to access community and access support in the community to ensure that they do not return to the CMH again. Those are the pieces that are missing. Even if we speed up the review process we still need to address those structural concerns because otherwise people are going to be reviewed more frequently but with the same outcome because they cannot progress to any other option. I am sure my colleague, Ms Ní Chaoimh, has more to say about the review process.

Ms Eilís Ní Chaoimh

I echo what has been said. The aim is to assist people to reach a point where they can go back into the community and then the question is what are we doing to achieve that.

After we conducted our interviews, the individual in question who had been there since the 1970s was moved on to a different placement. That is positive. It is hard to tell for how long people are in the CMH because it is not clear. However the latest report from the Mental Health (Criminal Law) Review Board noted it had done a 36th and a 37th review for someone. Assuming there is a review twice a year, that points to almost 20 years in the CMH. I do not know on what basis that person is currently detained. That is unclear. The review process in question is the 2006 review which falls under the Act of 2006. It is possible that person was there even before that. That is a big concern that emerges. This is not only the case in Ireland with the CMH. It prevails across forensic mental health detention facilities. That is the point made by the CRPD committee - that a person will be detained significantly longer than would be the case in a prison setting.

Deputy Neasa Hourigan

I have two follow-up questions. Is Ms Ní Chaoimh confident every person there receives two reviews a year? Is she confident that is happening or is it yearly in some cases? How do care plans interact with that? Ms Ní Chaoimh talked about moving people into the community in what she describes as a phased manner and making sure they have access. How do care plans interact? In this committee we have dealt with how care plans are resourced and how to ensure people are involved in creating their own care plans and that other factors such as capital spending do not interact negatively with them. I presume there is a natural tension in this scenario with penal law and care plans. Will the witnesses speak about that?

Ms Molly Joyce

I will pass over to Dr. Flynn and Ms Ní Chaoimh

Dr. Eilionóir Flynn

The care planning process is very different in a context where a person is engaged through the criminal justice process. The level of control and choice the individual has in regard to the care plan is quite different in this context. We can question that. We can say that should not necessarily be the case, but due to the way the legislation is set up, this is how it operates. Patients in the CMH are supported in their care through the six pillars of care through which they have to progress to access release or ultimately be discharged. Those are predetermined. The person can be involuntarily subject to specific kinds of mental health treatment, as happens also outside of the criminal justice setting and outside the forensic setting, but here there is a much greater degree of clinical control and a far lesser degree of patient choice. At least that is what we heard in the interviews we conducted with key stakeholders in the area.

Our concern would be that there is an overarching concern with risk in a very different way when it comes to these forensic settings. The way in which risk is evaluated is very different from what happens on the civil side under the Mental Health Act. This is all-encompassing in regard to what care the person is offered, receives or engages with. The big concern is the risk person poses to the community is considered in a way that is different from how it is considered under the Mental Health Act although some of the same issues crop up there as well. In the research we argue that we need to think about risk differently if we are serious about compliance with human rights standards. The way in which it has been so all-encompassing in its level of control over individuals is not productive to recovery or to people being reintegrated into communities and having support to live good lives after spending time in the CMH. We need to redesign all of that completely and move away from that. Ideally, according to the what the UNCRPD is saying, we should not have these separate forensic settings in which people can be detained for these periods of time and with this level of coercion in regard to the treatment they can be forced to accept.

Those are the bigger structural issues when you think about care planning that need a fundamental shift in order to meet Ireland's human rights standards under the UN convention. Ms Ní Chaoimh might have more to add on the care planning side.

Ms Eilís Ní Chaoimh

I had thoughts about reviews and making sure people are getting them. The legislation requires a review at least every six months. People can request one before that and the clinical director of the CMH can request one before that time period. One thing that did emerge in our research concerns the degree to which people are involved in these review processes. There is legal aid for legal representation but it was more the degree to which people's voices are heard as part of this process and a concern that after a certain period of time, it almost becomes something that gets done and is not engaged in wholeheartedly as a new process and really looking at supporting people throughout that not just in terms of providing legal advice but making sure people are real participants in the review of their detention.

Deputy Gino Kenny

I thank the witnesses for appearing before us. My questions are mainly directed to Ms Joyce. What is the definition of a forensic mental facility because I have never heard it called "forensic"?

Ms Molly Joyce

My colleagues could give the exact legal definition but I think of it as almost meaning criminal. It means someone who has got caught up in the criminal justice system and is now in the mental health sphere. A distinction is made between mental health services for someone who has not apparently committed a crime and people who because of their mental health or what is thought to be due to their mental health have a committed a crime and who we place within a separate group within the forensic mental health facility. We talk about forensic mental health facilities but the only one is the CMH. It is the only designated centre under the legislation but it is also an approved centre similar to other centres throughout the country. My understanding is that the CMH has that higher degree of security and control.

As we said in the foreword to our report, it is not surprising that this report is quite challenging and complex because it is sitting at the direct intersection of two very complex systems - the penal system and the mental health system, which is essentially why we wanted to do this report. We get asked a lot about mental health and, to date, we have focused in our advocacy and commentary around the waiting list for people awaiting transfer from prison to the CMH but we had not really engaged deeply on what actually happens in the next stage even though that is part of the prisoner's journey. If we are concerned with people in prison, we should probably be concerned with the forensic journey as well.

Deputy Gino Kenny

What would be the definition of somebody who is deemed unfit to plead?

Ms Molly Joyce

I understand there is a legal definition about which I am sure Ms Ní Chaoimh can speak. That is probably the best approach rather than me giving anecdotal evidence.

Ms Eilís Ní Chaoimh

It is in the Criminal Law (Insanity) Act, which sets out a number of criteria. Essentially, it is where the court, the judge, the person's solicitor or the prosecuting team determine that the person cannot understand the process due to a mental disorder or is not in a position where he or she can instruct his or her solicitor. Essentially, it is where the fair trial rights of the person would not be vindicated due to the fact that he or she cannot fully participate. In this situation, we are assuming the person has no agency because it is not something the person raises themselves. It is something that is raised by other people. It means that the degree to which the person has a choice in this process is incredibly limited.

Deputy Gino Kenny

I am guessing that in certain circumstances, the person has committed some pretty horrendous crimes.

Ms Molly Joyce

Yes, sometimes that is the case. I emphasise that because of media reporting and what most of us would hear day to day, we are very aware of the most serious crimes but there are a lot of people who get caught up in this system for very minor offences. It is concerning for everyone but it is perhaps even more concerning when you think about the fact that some of those individuals may end up in the CMH for very long periods of time when the actual sentence they would have received is less than 12 months based on the law under which they were convicted.

Deputy Gino Kenny

So if people convicted of minor crimes were in Mountjoy or Wheatfield, they might spend a small amount of time there but if they are in the CMH, they will spend multiples of that time period there.

Ms Molly Joyce

They could.

Deputy Gino Kenny

On the judgment of the courts that they are not fit to plead?

Ms Molly Joyce

Yes. There is a lack of transparency. You cannot point to figures or the numbers of people who are caught up in this. This is a slightly different issue but there were media reports about 18 months or two years ago about how an individual caught up in prison who was very unwell but on remand ended up spending such a long period on the waiting list for the CMH that they were in prison for longer than they would have been if they had just been processed and convicted of the crime of which they were accused. That is a slightly different issue but all these slightly strange things can happen whereby someone can end up being detained for much longer than any of us would think is possible.

Ms Eilís Ní Chaoimh

There were 24 hearings in 2020 and 2021. Seven of those related to people who were facing charges in the District Court while it just said "other courts" for the other 17 so, again, it is unclear whether it is the Circuit Court or the Central Criminal Court. While we are talking about crimes ranging from the minor up to the most serious, there are people who are facing charges for what it would be possible to plead as a misdemeanour in the District Court but, because they are deemed unfit to plead, end up being deemed unable to decide to have it tried at the District Court level. This then elevates it to Circuit Court level. A case involving such a scenario is cited in the report so it is not hypothetical. It creates these odd legal scenarios.

Dr. Eilionóir Flynn

I was going to mention that case as well. The person was being charged with theft. Again, not all of these cases involve very serious or the most serious crimes such as violent crimes even though they might be what comes to mind when we talk about forensic settings. It is important for us to remember that this is not the experience of everyone who is detained in that setting.

Deputy Gino Kenny

So there are situations where somebody who has committed a relatively minor crime could be in a facility such as this for years because their capacity is compromised in some way and that the State feels that because they do not have capacity, they will be incarcerated indefinitely. There are cases where this has happened.

Dr. Eilionóir Flynn

That can happen. The rationale for detaining people while they are unfit to stand trial is treating them to make them fit to stand trial. That is theory of what should happen but as we can see from the length of time people might spend there and what stakeholders told us during the research for this project, it may be a long time with people still being found unfit to stand trial despite undergoing treatment and being in the CMH for long periods. The goal of the system is to treat the person so he or she can stand trial but, again, the treatment does not always have that effect and may have other effects. That is the problem.

The rationale for keeping them there is that we will provide this treatment and once they have had it, they will be in a better position to understand what is going on and be able to participate in the trial. However, we do not even have data on how many people are not fit to stand trial and go ahead into a trial process after being treated at the CMH. We do not have that information.

Deputy Gino Kenny

My final question is on recovery. Obviously, if people are in this institute or facility, recovery and rehabilitation is key to reform. There is a gravity to why people are incarcerated in the first place. I presume there is a full spectrum of that from relatively minor crimes to crimes that would be of a very serious nature.

On recovery, if somebody commits the most serious crimes of murder and so forth, what are the terms of recovery? If somebody commits a murder, they spend at least ten to 15 years in prison or are in jail forever. In situations where somebody is deemed unfit for trial, what is the recovery basis? Does that person then realise that were not of sound mind when they committed that crime but they are now complete compos mentis? Where does that paradigm end and begin in relation to that person who may not have been of sound mind when they committed that crime but now with doctors and so forth they have been deemed relatively fully recovered and of sound mind? I know everybody is different.

Ms Molly Joyce

My colleague may have more insight into the specifics on mental health. It is a good and a big question. Some of the things that have come from this report made me think and it kind of challenges how we think about punishment and what we are doing. I imagine there are situations, and it can arise, where someone has perhaps committed a crime when they were not, by legal definitions, of sound mind, or whatever phraseology one wants to use for that, and then even by the time that they get to the trial and perhaps are found not guilty by reason of insanity, they are of sound mind. I am using that term because it is how we might describe it in the law. Yet, we still will end up in a situation where those people might end up being sent to the CMH even though they may have recovered. There are examples within the report, and Ms Ní Chaoimh might be drawn on those a bit more, of some people commenting on situations where someone may have been on bail on the offence, they go to court and are then sent to the CMH. However, they have been on bail and completely fine for two years and getting help and treatment in the community and then sent to the CMH. It is a bit of a question mark - if they have already recovered, why are they being sent to the CMH? That is what I mean about the questions around punishment. Are we actually doing it because we have to do something if someone has committed a very serious crime and we cannot possibly just let them out into the community? Okay, that is fine, but that is something quite different from saying that we are doing it for their benefit and to treat them. That is a big question.

On recovery and rehabilitation, an issue that has come out in the report and that we would definitely be aware of, and Ms Flynn pointed to it, is the lack of resources within the community for that kind of support. Specifically, one can talk about step-down facilities from the CMH. From my understanding, that is a big issue with the capacity to date. The new CMH has a new intensive care rehabilitation unit with 30 spaces, which is welcome. That is all a coercive system, but is a more welcome system in that it would get people out of that very confined situation and back into the community. However, again, that only has 30 spaces. That is welcome, but probably will not address those capacity issues and provide the kind of support that is needed within the community to properly get people living freely within the community with those supports.

It is a bigger question, and what the report kind of points to as well, is this idea that if we keep focusing on the institutional responses, prison and the CMH, we will never redistribute those resources to the community, which is where they could possibly be more effective. It is quite a big thing to achieve, but that is kind of where the report is in terms of recommending where we go.

Dr. Eilionóir Flynn

To add to that, the term “recovery” is not used in the Criminal Law (Insanity) Act, so it does not form part of the decision about whether someone will be released from the CMH. We might talk about that colloquially and we might kind of have this understanding that people should be released if they are at the point in their recovery where that would make sense. However, that is not the legal standard that justifies whether they will be released or not. As we have spoken about in this session and as we have read in the report as well, the view of the clinical director is very critical to any release, including leave and other kinds of temporary release from the CMH. It is not as straightforward as “that person recovers and they are then released”. That is certainly not the experience that we have seen through the stakeholders that we have interviewed from this research. However, it raises those broader questions as well about accountability and responsibility in terms of how we want to address what we do when people may come into contact with the criminal justice system at times when they may be in a mental health crisis or for other reasons related to their health and well-being and are not in a great place in their lives.

I want to be clear. We are talking about people, again, colloquially in this context, having committed crimes. If someone is deemed unfit to stand trial, there is no finding that they have committed a crime. By its very nature, they are unfit to stand trial. They have been charged with a crime for sure, but they were never convicted of that crime. They were just found unfit to stand trial. It is important for us to be clear and accurate. If that trial proceeded, perhaps that person would be found not guilty. We do not know. We need to be careful that we do not assume that finding of a person being unfit to stand trial means that there is a finding that the person has committed a crime. Legally speaking, that is not accurate. It is very important that we are clear on that.

Does Ms Ní Caoimh wish to add more on recover or what happens based on capacity?

Ms Eilís Ní Chaoimh

This idea goes to the heart of the issue. For people who are found not guilty by reason of insanity, that first bit there of “not guilty” is the recognition. The law is trying to recognise that due to a mental illness at the time, the law has determined that a person should not be held fully responsible. That is due to the Criminal Law (Insanity) Act, which sets out that the person did not know the nature or quality of the act, they did not know what they were doing was wrong or they could not stop themselves from doing it. The idea is that what we are doing is not about punishment. It is to essentially-----

(Interruptions).

Ms Eilís Ní Chaoimh

It is to do with helping people recover in the sense that they would not go on to commit further crimes or that they would be in a position where they could live in the community with whatever support they need. I just wanted to make that point.

Senator Annie Hoey

Apologies as I am Zooming in from the office between multiple places. I thank our witnesses for their presentation. It has been interesting and has uncovered many things that I would not have known about, even though being on this committee I am very interested in the topic of mental health.

I wish to circle back. I am in interested in what was mentioned in the opening statement and the terms of the breach of rights once a person is detained within the CMH. Can the witnesses elaborate a little more on that?

Has there been any international or global analysis as to where we stand in comparison with other countries around this? I know there are differing ways that people are treated, different systems and different methodologies. I am asking about the international perspective on how we do things and a comparison perspective on how we do things. I am not sure whether we want to look at our nearest neighbours in the UK.

It was further mentioned that the ideal would be to not have this particular system. Is there an example, a best practice globally or a pathway of how we would achieve this?

Is everywhere in a similar state?

Ms Molly Joyce

I will elaborate on some of the rights concerns identified in the report and Dr. Flynn and Ms Ní Chaoimh will speak about the international perspective and best practice examples. It is a very good question and something we discussed a lot when preparing the report. With regard to some of the other daily life findings, the report looked at access to healthcare, access to the community, access to advocacy, complaint systems, seclusion and restraint issues and the gender implications of detention and whether there is a difference between how men and women are treated in the system.

Other issues were identified with regard to the visiting system. Some good practices were identified. During Covid there was expanded access to technology that allowed people to have visits from families who may not have been able to visit as easily. Recommendation No. 6 is on expanding the use of technology and providing longer visits. It noted the length of visit has increased from 45 minutes to an hour and a half. This could go even further and people could be given half a day for their family visits.

With regard to access to the community the report discusses leave as something that could be given to people other than just those who are on the pathway out of the Central Mental Hospital. This appears to be the situation at present. Perhaps we should ensure everyone gets an opportunity to access leave, even on a temporary basis. With regard to access to healthcare the report looks in more detail at physical health care and mental health care and makes some recommendations on how it can be improved, particularly with regard to consent to treatment for mental health care. Many interviewees said people are involved in mental healthcare decision-making and are asked about it. Some of the staff who were interviewed said people are asked but questioned how much it was taken into account. If the doctor disagrees that is the overriding decision.

With regard to medication some of the advocacy organisations mentioned that sometimes people are not really told about the impact and physical side effects of medications. They should be told so they can make an informed choice on whether they want to take the medication. Seclusion and restraint were identified as very big issues. I had a look this morning at the report of the Inspector of Mental Health Services on the Central Mental Hospital. This is the most recent report and was not published at the time of the report we are discussing. There are real concerns about the lengths of time people can end up spending in seclusion. It seemed to have increased in 2021 from what it was in 2020. This is a concern. We saw it during Covid. I do not think it is part of the reason but I am trying to find whether there is some reason for it. It is concerning to say the least.

Dr. Flynn and Ms Ní Chaoimh will be able to expand on international best practice. My understanding is there are some very good examples we can take from abroad. We have tried to include these in the report wherever we can. It is fair to say this is a challenge for many countries and no country has managed to get a best practice example. It is difficult because we are speaking about a fundamental shift in how we think about this. As I said at the outset we are speaking about all of this. Many of us in the human rights sphere who are not experts in disability rights think of it as vindicating the rights of people. It takes a big paradigm shift for us to think that perhaps that is not what we are doing at all and that there is a much better way.

With regard to a better system we agree with some of the recommendations that have been made by the high-level task force on diversion of people with mental health and addiction issues. I can also see that it is not UNCRPD compliant. It does tie into a bigger point, which is the Irish Penal Reform Trust tries to promote the idea that many people should be diverted and not only people with mental health illness or addiction. Many people who are in prison probably should not be there and there are other ways to respond. Reform of the forensic mental health system goes hand-in-hand with reform of our criminal justice system, how we think about crime and how we respond to crime. It is a very big thing to do, which is why we have tried to break it down into more specific recommendations in the report.

Dr. Eilionóir Flynn

I thank Ms Joyce for setting out all of these issues. From an international and comparative perspective, the UN Committee on the Right of Persons with Disabilities has been very clear on this point. Even though many countries are struggling to put into practice what the UN committee has asked for, it consistently asks for a dismantling of all coercive psychiatric treatment systems, including forensic systems but also on the civil side.

The perspective of the UN committee is that no one should undergo forced mental health treatment. Everyone who wants mental health treatment should have access to it but nobody should be forced to accept a treatment to which they do not consent. We do not force anyone to accept a physical treatment to which they do not consent. We need to achieve parity between physical and mental health care. If we are serious about parity this is what is required. It would require a massive structural change in how our mental health laws and the criminal justice system operate. Keeping this in mind, and acknowledging the scale of the challenge, it is nonetheless the goal we need to work towards.

There are plenty of examples we can draw on, particularly on tackling issues when they first emerge. There are examples of not only restorative justice projects but also transformative justice, where communities come together to figure out collectively how they want to tackle issues of interpersonal violence or other issues that arise in communities. Often communities create their own solutions because they are frustrated by the way in which law enforcement deals with these issues and the way in which it further marginalises, medicalises and creates more distress for people who are already in very difficult situations. We looked at examples of transformative justice work, such as Mia Mingus's project in California, which we mention in the research report. It is very positive. It has been informed and designed by disabled people and people with experience of emotional distress or mental health crisis. It is about coming up with a different way to respond when issues emerge that does not involve getting in contact with the criminal justice system in the beginning. This would solve many issues.

It is about an alternative way to look at things. Rather than diverting people out when they have already come in contact, if we could tackle the issues as they emerge and avoid this contact in the first place it might give a much better experience, not only for the person caught up in the centre of the situation but everyone impacted by it. People and families often call law enforcement where they have no alternative. They do not know what else to do in the situation. If we create alternatives that work and in which people have confidence, and if people can see the alternatives working and can see better outcomes, they will use them. This is what the international and comparative literature shows us.

The UN committee has made findings against other states, such as Australia. In a very famous case an indigenous man, Marlon Noble, was detained in a forensic setting and eventually released into the community but with conditions that were so restrictive the UN committee said they continued to amount to a deprivation of his liberty. This was all because he was unfit to stand trial. He never got to clear his name. He maintained his innocence throughout. He said it was something he had not been involved in. He was accused and got caught up in the system. We need to take seriously the mandate of the UN committee and the challenge it has set before all countries.

We can learn from our colleagues. In Australia the response was to have a number of very interesting pilot projects working with people, including indigenous people, who tend to get disproportionately caught up in the criminal justice system. This is also the case for people who have had various labels attached, such as a mental health diagnosis or foetal alcohol spectrum disorders, and the various experiences people have. It is about responding to these situations so that people do not end up coming into contact with the criminal justice system in the first place. This would be the best port of call for restructuring our entire system which, of course, is a huge challenge.

Senator Aisling Dolan

I welcome Ms Joyce who is representing the Irish Penal Reform Trust, which is about being progressive on reform. I also welcome Dr. Flynn and Ms Ní Chaoimh from the University of Galway. I am curious about the timing of this. There seems to be a lot of activity. The report being reviewed analyses certain areas. The witnesses are looking to ensure that the rights of people with disabilities are protected in the justice system. The submission document refers to some of the changes that have come through from the report that was issued in September. The Ministers, Deputies McEntee and Donnelly were involved. This report was on how people with mental health and addiction issues are managed in our Prison Service and how we should manage it.

I ask for the witnesses' feedback on that group. I know the group engaged with staff from the Departments of Justice and Health about the report. It had representatives from the HSE, the Central Mental Hospital, the Irish Prison Service, the Probation Service, An Garda Síochána, the Department of Children, Equality, Disability, Integration and Youth, the Judiciary and the Department of Housing, Local Government and Heritage. Quite a wide range of people and groups came together. I believe there were three subgroups. More than 60 recommendations were put forward. A number of those are legislative. What is the witnesses' understanding? This task force's studies started in 2021 when it came together, with three subgroups. There has also been a €200 million investment in the facility in Portrane, with more than 170 beds, to move the Central Mental Hospital from Dundrum to Portrane. This opened in September. There is consideration of development of other areas there too.

There has been much Government activity on this in the last while. The recommendations coming from this task force address some, but not all, of what the witnesses put in their report. Will they comment on some areas where they see progress in what the task force has come up with by way of recommendations? I was looking at the subgroup on diversion. The second subgroup relates to capacity, which is what the beds in the new hospital will address. We always talk about access to beds. The other matter is community issues and throughcare upon release from custody.

One other comment I would make is that we just went through the legislation on assisted decision-making and the decision support service in the Seanad. I know Senator Frances Black, the Chair here, was involved in it. When we did our research on that, it opened to me the number of people who, at every stage of their life, may have challenges with mental health. That could be because of us having an ageing population. At different times in our life, we may need assisted decision-making or the decision support service. We may be dealing with more people who are developing neurocognitive challenges at older ages. We have to be conscious of that. Will the witnesses comment on the assisted decision-making legislation and decision support service? I have a couple of questions. What is the witnesses' opinion on the recommendations, of which more than 60 have come from the task force? Will they mention the new facility which is tackling bed capacity and other points which they raised in the submission to us? Finally, there is the Assisted Decision-Making (Capacity) (Amendment) Bill 2022, the brand new legislation that has come into place in the past week or two.

Ms Molly Joyce

I will take some of those questions on behalf of the Irish Penal Reform Trust, IPRT. I know we might have slightly different approaches to the high-level task force in particular. I want to address the point about timing because it is a keen observation. Much is happening in this space. In some ways, the timing of how everything has worked out is a bit unfortunate. IPRT made submissions to both the Committee on Children, Equality, Disability, Integration and Youth and this committee about the reform of both Acts. Both our submissions highlighted that we were doing this report but that it was not ready yet. It would have been great if we had done it a year earlier and could have fed that in, but we are where we are. Much more attention is being given to the issue, which is probably why we have much happening simultaneously. It would have been great to have this report this time last year, because we could then have fed in some of its findings, but we did not have it. Things that happened at the Central Mental Hospital, CMH, and concerns identified by this report are not our area of expertise or knowledge that we would have had to hand.

IPRT welcomes the high-level task force and the new opening of the CMH. We called for the task force. It is one of our five recommendations for the programme for Government. We were pleased to see that progress at the cross-agency, interdepartmental level and to see that commitment from the Minister. It was brilliant. It was published in a relatively short space of time. We acknowledge that it is a huge report. As the Senator noted, the report engaged with many actors across all of the systems, which is key to trying to resolve some of the issues. To date, people have been operating in silos, so seeing that inter-agency interaction is brilliant.

We welcome many of the recommendations of the high-level task force.

There are many recommendations so trying to get our heads around every one has been challenging. We also need to see how they will play out and interact with each other. We have often made the point about diversion. IPRT receives many communications and we are told about people ending up in prison and, in the worst case scenario, dying by suicide in the prison environment when they should not have been there in the first place. That is our primary concern. Having had this report, I am conscious that one is potentially diverting someone into a system that is coercive. As I said earlier, this involves the diversion of many people. The high-level task force looked at mental illness and addiction. Many people end up in prison because of drugs and should not be there. We welcome much of that.

On capacity issues, the task force did good work. That was partly led by the Irish Prison Service and written by that subgroup. There was good work on how to address this issue. The new Central Mental Hospital has been acknowledged by everyone. It is welcome and it is a much better facility than the old one in Dundrum, but it will not address the capacity issue in the long term. It has been accepted that capacity is around 102 or 103 and will increase to 170, which includes the intensive care rehabilitation unit and a forensic child and adolescent mental health service too. It will not address the capacity issue. IPRT has collected much data about waiting lists in the Prison Service over the past few years and people getting transferred to the CMH. It may address it to a certain extent but it will not be fully addressed.

Senator Aisling Dolan

When people are treated, they probably need to be able to move to regional step-down or rehabilitative services. I think that has been highlighted. An acute service is available within the 170-bed unit. Maybe our committee could review that new facility in a year. It was only opened a month ago. Maybe this time next year would be a good time for us to invite people from the hospital to come into us. Capacity has to be looked at. This brings together the Departments of Justice and Health. We need to focus on this. The Minister of State, Deputy Butler, has responsibility for mental health. Like Ms Joyce said, this brings together justice and health and looks at how we can support people who are in a situation and are vulnerable. It is about protecting those rights too. Sorry. I did not mean to interrupt Ms Joyce.

Ms Molly Joyce

I thank Senator Dolan. Our concern is that we have been told that prisons are effectively being left to pick up all the pieces. That is a quote that has been used by people within the Prison Service about the mental health community. People get to a point where they end up in prison. The best approach would be an early intervention system so that people never come to the point of interacting with the criminal justice system in the first place.

Senator Aisling Dolan

What is Ms Joyce's opinion on the decision support service? How does this work for someone who does not have the capacity to make decisions? How could the people who support them make decisions on their behalf? What are Ms Joyce's opinions on that legislation?

Ms Molly Joyce

I am not an expert on decision support or assisted decision-making so I will pass over to my colleague. From our position, we are clear about reminding people that assisted decision-making will apply to people within prisons too and not to forget that cohort of individuals. I have one point before I pass over to Professor Flynn and my colleagues. People are transferred out in cases involving acute need. I highlight the lack of resources in the Prison Service to help people to get the mental health support that they need.

If we had better supports within the prison system we could hope to not have as many people being deemed as requiring to be moved out of that system. In that regard, a 2015 IPRT report recommended there be one psychologist to 150 prisoners and we have never gotten anywhere close to that. This time last year the figure was around one to 257 beds.

Senator Aisling Dolan

I suppose this is a question for the researchers. Were there psychiatrists involved in the study? Ms Joyce has highlighted the trust's report has been limited in scope. It was a literature review. Then there was engagement with a number of staff. I am curious about the type of staff. Were they medical staff or prison staff?

Ms Molly Joyce

I will pass that to my colleagues and perhaps come back in if there is anything else to pick up on.

Senator Aisling Dolan

Also, was there any feedback on the adult caution scheme? It has been recommended as one of the elements under the heading of diversion and how we ensure people are not ending up in the prison system. What are people's opinions on that? I thank Ms Joyce and Dr. Flynn.

Dr. Eilionóir Flynn

I thank the Senator. To start with the task force, as Ms Joyce has already alluded to, we have a slightly different position from the IPRT on the task force recommendations. There are some we think have much potential. An example is the recommendation research be commissioned to establish the extent of the numbers of persons with mental health difficulties appearing before the courts and the broader needs of that cohort with respect to accommodation and so on. We completely support that and think it is absolutely necessary. There is another recommendation around the creation of assertive outreach teams to make mental health care and housing supports available to people in distress and especially to ensure people to do not enter the criminal justice system in the first place. As we have been talking about, we completely support that as well, so long as it with the person's informed consent where the decision of whether they access the outreach services offered to them or not is concerned.

As for our concerns about our human rights obligations and how they relate to the findings and recommendations of the high-level task force, the international evidence and the UN committee's position on this are very clear that systems of diversion based on impairment and diagnoses related to mental health are themselves inherently problematic in terms of human rights obligations under the UNCRPD. A fundamental transformation of the criminal justice system is certainly welcome in order to ensure many people caught up in it who should not be there are not there. However, separating people out on the basis of a diagnosis is inherently discriminatory on the basis of disability according to the UN Committee on the Rights of Persons with Disabilities and we really need to acknowledge that. It is certainly an issue when it comes to the high-level task force findings.

Another issue we are concerned about, again based on our obligations under the UNCRPD, is the recommendation from the task force on consideration of community treatment orders. This is a practice that has been heavily criticised by the UN committee as imposing a kind of deprivation of liberty in the community on people. We have talked about community support as being vital for recovery. Part and parcel of that fundamentally must be that the person wants to engage in that. Otherwise it is not going to have the same effect. It is not going to be valuable or meaningful for the person; it is just another form of coercion that is being imposed on them. Again, while we understand the impetus to try to keep as many people out of the criminal justice as possible, we think those ideas are quite problematic in the context of Ireland's human rights obligations. We therefore query some of those recommendations and would like to see greater scrutiny of the recommendations in light of Ireland's obligations under the UNCRPD.

Senator Aisling Dolan

On the centre's studies, was there a psychiatrist involved in the report it put together?

Dr. Eilionóir Flynn

We have to be very careful because we only interviewed a very small group of people. Everyone participated on the grounds of confidentiality. It was only staff from the Central Mental Hospital, as it is the only designated forensic setting. Accordingly, we agreed with our participants we would not reveal their disciplinary background, so I am afraid I cannot give the Senator a straightforward answer to that question.

Senator Aisling Dolan

Okay. Dr. Flynn has indicated there is further research but is the centre looking at further research following on from what has come out of the task force? It has roughly 60 recommendations, I think. In the IPRT report there are around 17. How does she propose to engage in further research?

I am curious about how the groups might work together to feed into each other, especially when I see the breadth of groups that have come together around the task force report. There seem to be quite a lot of different agencies and groups that have fed into that, including societal ones.

Dr. Eilionóir Flynn

Yes, and that is very valuable. I am actually referring to recommendation 3.6 of the task force, which was a recommendation for further research. That is a recommendation we are anxious to see carried out in a way that brings together some of these core concerns we have identified in our research as well. We absolutely see it as an area for potential future collaboration.

Senator Aisling Dolan

That is really positive.

Chairman

Does Ms Ní Chaoimh want to come in there? Is there anything she wants to follow up on?

Ms Eilís Ní Chaoimh

I will just mention it is interesting that under the fitness to plead section in the high-level task force report there is reference to assisted decision-making and possible law reforms to integrate it into the fitness to be tried process. That is definitely positive and it would be great to see further development of that recommendation. That was just one extra thing to add.

Senator Aisling Dolan

Very good. I am not sure whether there are any other points we wanted to go through.

Ms Molly Joyce

There was mention of the adult caution scheme. We support the recommendations on the scheme from the high-level task force and in particular its extension to cover simple possession of other drugs. That would have the benefit of preventing people who may be in crisis from entering the criminal justice system. There is also some welcome language within the task force about some of these, such as the adult caution scheme but also addiction and mental health awareness training in an Garda Síochána and talking about evidence of crisis, mental illness, addiction or situational trauma. The task force also talks about training gardaí on diversionary approaches in appropriate cases with regard to mental health, addiction, homelessness, lack of maturity and other circumstances. There is some language there that is good and which we can draw on to expand that approach so it is not just about someone with a mental illness, necessarily, but someone who is young or homeless or there are situational reasons for them acting the way they are and that perhaps having a more empathetic approach to the which does not result in the person ending up in a police cell and then prison.

Senator Aisling Dolan

Okay. That is really positive. I am not sure whether there are any other final comments. All of it seems to have come together in the past six months or so. There seems to have been a lot of activity here and it is perhaps a case of looking at what has come out of the task force.

Our guests have spoken about what they have been reviewing in their research and the further research element there. I am curious about the new hospital. After giving it a number of months to let it get up and going properly, we as a committee might look at the outcomes from that.

Something else coming out of the task force that I liked was it has given the short-term, medium-term and long-term forecasts against a number of those recommendations. I assume a number of those will have to prioritised within the capacity of the Departments of Justice and Health. Public health is very important. There are so many different areas that come together in this. It is about community health, Sláintecare, the pilot programmes we have around addictions and so many other supports. In Ballinasloe, for example, if you have a primary diagnosis in mental health, you can then get support for addiction but if you do not then that may not be available in the local area. There is also very much a lack of access to those types of supports for people with mental health difficulties. I hope the IPRT is looking at those elements within the community as well because to some extent the GP is the first port of call for families dealing with people with mental health challenges. It is about how we support our GPs in rural areas and networks in those areas to deliver care at an early intervention stage. That is crucial, as is working with gardaí around that.

Ms Molly Joyce

That is absolutely something the IPRT will continue supporting and collaborating on with others that have expertise in mental health.

I will quickly mention two things the committee might also examine. Looking at the CMH to see how it is operating in future is a great idea.

Regarding the high-level task force, the resourcing point again arises. It is great to see the timing of the recommendations, which include proposals for the short, medium and long term, but there was not really any information given on resourcing. The report was released around the same time as the announcement of budget 2023. That was a little concerning because if the resources are not put into these proposals, a lot of them will not happen. There is also the question of monitoring. I understand there are plans in place for cross-departmental monitoring. That is something we will try to keep on top of in terms of how the monitoring is being done and who is keep an eye on whether the actions are being implemented.

Senator Aisling Dolan

The Minister, Deputy McEntee, has shown a lot of interest in this issue. I understand the €200 million investment in the Cental Mental Hospital is the largest investment outside of the acute hospital sector. As we know, we are in dire need of beds in the mental health area. There has been joined-up thinking on this issue to date at Government level, between the Departments of Health and Justice. We would like to see that continue into the future.

Professor Eilionóir Flynn

It is really valuable to see inter-agency co-operation in the task force and in other processes to try to resolve some of the fundamental structural barriers to how our criminal justice system and mental health services are currently operating. The one thing I would encourage us to do more of in future processes, including in the resourcing, prioritisation, implementation and monitoring of the task force recommendations, is ensure we listen to the voices of people who have experienced the system at first hand, particularly those who have had various mental health labels applied to them. It is important not to undermine the views of family members, but we should note that they may have a different perspective on what happened to the person from the perspective the person has, having lived through the system. There were opportunities for people to be consulted in that process, and they were consulted, but in terms of having an equal seat at the table and equal partnership, we are still a long way from that in most of our processes. We must continue to strive to achieve it in all the future implementation of the planned reforms that are ongoing within the criminal justice and mental health services. It would be remiss of me not to make that point, emphasising particularly the importance of the voice of people with experience of the system and the need to make their voice central to decision-making. That is an area in which we need to make a lot more progress.

Chairman

As no other witnesses wish to respond, I will put a few questions. First, I thank them for their phenomenal work on human rights and for being a voice for the people concerned. It is quite moving that they are giving a voice to those who have none. I thank them sincerely for that.

What legal aid provision are CMH residents entitled to and how does it compare with what is available to people in prison, who can avail of the custody issues scheme?

Ms Molly Joyce

My colleagues will know more about the specifics of this issue. There is a scheme available whereby people can get legal representation for their appearance before the Mental Health (Criminal Law) Review Board. The IPRT is keenly following the consultation that has just opened on the review of civil legal aid. The review is chaired by a former Chief Justice and the deadline for its completion has just been extended to February. We will be involved in that process because access to legal aid is an issue for people in prison. There is a need to address gaps that may exist, particularly in respect of civil legal aid. Arising out of the review report, we can identify what gaps there may be. This is an area of future work and I will be happy to keep the sub-committee updated in that regard and to pass on our submission when we complete it. My colleagues might be able to offer more detail on the legal aid provision that is currently available.

Professor Eilionóir Flynn

Ms Ní Chaoimh, if she will, is best placed to deal with the Chairman's question.

Ms Eilís Ní Chaoimh

It is a legal requirement that people have a legal representative provided to them at their review board hearing. The board has put together a panel made up of 20 or so solicitors. People can avail of legal aid to enable them to have a legal representative at their board hearing.

Chairman

We hear a lot at this sub-committee and at the health committee about staffing issues. Do the witnesses have any information on staffing levels at the Central Mental Hospital and whether they are adequate?

Ms Molly Joyce

My understanding is that there are some issues around staffing at the CMH. They are potentially ongoing issues that are tied into some of the issues relating to the delays in transferral to the new building. My colleagues will have more detail on the specific issues in that regard.

Within the Prison Service, the staffing of mental health positions is also an ongoing issue. The Prison Service has been engaged in recruitment of psychology staff, with eight psychologists hired since May who, it is hoped, will start in 2023 at different levels. I understand the service will run a new campaign to hire psychologists in May or June next year. There are attempts to address the problems in the Prison Service in recruiting and retaining staff across all areas of healthcare. As I said, that ties into the availability of mental healthcare support within the service.

Another issue I am aware of from speaking to people within the Prison Service is that there are issues with staffing levels in the prison inreach and court liaison service. As I understand, that service is really only operating in Dublin at the moment. The staff involved are staff from the National Forensic Mental Health Service Hospital who work within the prisons. It is a very difficult job and retention of staff is likewise difficult. There is a problem in keeping people with sufficient experience and expertise working in that area. There are recommendations from the high-level task force to roll out the prison inreach and court liaison service. It will require a lot more qualified and experienced staff to do that. As I understand, it is not an area in which very junior or new staff would be engaged. People can be trained up to do it but there is a level of expertise required.

Professor Eilionóir Flynn

The staffing within the CMH is directed very much towards providing care within that setting. We have identified a need for more resourcing in terms of staff and other kinds of supports to get people out into the community, whether on supervised access, for short periods of leave or, ultimately, on discharge. We see a real need for staffing and resources to be directed towards that. There is also a need to offer people greater choice in the activities in which they might want to engage while they are in the CMH. There has been a lot of focus on the provision of physical and mental healthcare treatment specifically but other supports are often comparatively under-resourced, such as access to education or pathways to improving employability while people are in the CMH, with a view to reintegration afterwards. These are areas in which we see a need for greater staffing.

Ms Ní Chaoimh might comment on the gaps that have been identified by specific stakeholders.

Ms Eilís Ní Chaoimh

There is the issue of advocacy, which we have not really discussed. At the moment, the way it operates is that the advocacy is done by staff of the CMH. There were concerns raised in the report about the independence of the advocacy provided. Advocacy is important for people living in that setting day to day. One of the things that matters to them is having advocacy support. That was one issue that emerged. There is possibly a need for a greater focus on independent advocacy services.

Chairman

I thank the witnesses. What role do they think ratification of the Optional Protocol to the Convention Against Torture, OPCAT, could play in the oversight of the CMH?

Ms Molly Joyce

The IPRT has been involved in looking at the new general scheme of the inspection of places of detention Bill. We have focused a lot on the justice sector and the functioning of the new inspectorate of places of detention.

My understanding is that it has not been put into the legislation in terms of who exactly or which organisation would be designated as the national preventative mechanism in the mental health sphere for institutions such as the Central Mental Hospital, CMH. However, our expectation would be that it will likely be the Mental Health Commission and the Inspector of Mental Health Services because, clearly, they already have a role inspecting the Central Mental Hospital. It would, therefore, be a natural fit. From reading the legislation, that seems to be the intention of what will happen.

Our view, and this is for all sectors, is that it is really important that there is an understanding of the Optional Protocol to the Convention Against Torture, OPCAT, and what it is about. It is about the preventative function. It is about trying to prevent torture from happening. It is not a complaints or investigation body. If we are going to designate existing bodies such as the Inspector of Mental Health Services as the new national preventative mechanism, there will need to be a very clear delineation between their different functions and then perhaps better resourcing, with delineation of resourcing in order that they have the national preventative mechanism under OPCAT and all the other functions that currently exist. That is our position based on what looks will be the likely approach taken.

Of course, there are other ways it could be done. We could set up a brand new national preventative mechanism for Ireland. My understanding is that this is not the approach that is going to be taken. In those circumstances, we are very clear that as it stands, we can see the logic in keeping that kind of inspection or monitoring with the existing body that has expertise in the area. However, much work needs to be done across all sectors around understanding OPCAT and what it will mean, what the actual function of it is and how that perhaps differs from existing functions.

Professor Eilionóir Flynn

I will add one thing on OPCAT. I appreciate this is probably not the approach that is planned to be taken but again, that could be a crucial role for giving a really important part of the decision-making and that monitoring process to people with lived experience of these systems. That is not necessarily foreseen but international best practice shows how that has been done quite successfully in other jurisdictions, including monitoring these kinds of places of detention like forensic settings but also, let us say, those that would be monitored by HIQA such as residential settings for disabled people, which could also come within the remit of OPCAT. Again, the involvement of disabled people themselves in the monitoring process could be really valuable in terms of getting an insight into what the applicable human rights standards should be and whether they are, in fact, being met in these settings. That could be really essential.

We saw recently, for example, a problem in implementing OPCAT in forensic settings in Australia a few months ago. We want to make sure we are not going to set ourselves up for some of the same mistakes other jurisdictions have made. We need to ensure all of the legislation is in place to make sure there will be full access to all the settings that should be monitored by OPCAT by the national preventative mechanism.

Chairman

Can the Ms Joyce give us an outline on the additional research she would like to see conducted in this area?

Ms Molly Joyce

Yes, absolutely. As a starting point, this is recommendation 2.2 of the high-level task force report on further research on the prevalence and impact of mental health conditions and addiction across the prison estate. I said at the outset that the Irish Penal Reform Trust, IPRT, does not even have up-to-date data on the rates of addiction and mental health needs within the prison estate. That would, therefore, be a really useful starting point. Professor Flynn already flagged some of the broader points in terms of broader research around the mental health and addiction side, which is in subgroup 3. She can pick up that point in terms of the mental health needs across the forensic system.

In terms of additional research identified by this report, as I said earlier, there was some identification of the issue around gender and the treatment of female patients within the CMH. There were particular concerns that there is no stratification in that male patients are stratified according to their needs but that does not happen for females because there are so few of them. Then, they are all in one unit together. That may be addressed to a certain extent by the new CMH because it will provide more female spaces. Equally, however, it creates a potential concern that the more spaces are created, the more likely they are to be filled. Therefore, we may end up seeing more women being detained in the CMH. In terms of gender, the report says this is a potential issue but there is definitely room to do some further research around whether there are particular issues for gender minorities within the CMH and forensic mental health settings.

I would just flag in this regard that the Irish Penal Reform Trust focuses a lot on women in prison as well. There are certainly some indications that there are particular needs there in terms of addiction, higher addiction needs, potentially higher levels of experienced trauma, and physical and sexual abuse of the women who end up in the prison system. From that, there may be scope to try to look further into the National Forensic Mental Health Service. As far as I am aware I do not believe that this has really ever been done.

With regard to further research, for us this was a scoping study. It was a small scale research study funded by the Irish Human Rights and Equality Commission, IHREC. Part of what we were trying to do with this was to identify the gaps that potentially affect patients within the National Forensic Mental Health Service Hospital, and to forward them in terms of the advocacy organisations. There is the Irish Penal Reform Trust working on behalf of people in prison. There are also organisations such as Mental Health Reform and others working on behalf of people with mental health needs. I do not know of anyone looking specifically at this particular cohort. That is why we did the research. The scoping study is great in that it identified issues but there is further work to be done around asking if someone or some organisation need to be actually taking a handle on this and saying "This is what we do now". Obviously, that is for every organisation to decide for themselves, but there is further research to be done. This was initially about identifying some of the concerns. Further work needs to be done between ourselves and others in the sector to identify how we might best address some of those needs, along with our colleagues in academia and across all key decision-making bodies.

Professor Eilionóir Flynn

I reiterate all of the areas that Ms Joyce has identified for further research. They are very important and we would definitely support all of that and - I may sound like a broken record - especially the research around the lived experience of people within the Central Mental Hospital, or those who have spent time there. That would be very valuable. In the short timeframe of this research we were not able to include them in the research. It would certainly be challenging to access that population, but that research is really needed to understand the full spectrum of the experiences. We are gathering this from outside stakeholders from stakeholders who work within the setting. This is not the same as the issues that are a identified from people who are living in the setting, which may be very different from what we have identified through this research so far. That is certainly an area to look at. The people who have experienced the system are best placed to really come up with the solutions that would avoid others having to go through what they have gone through. We really need to put that front and centre of further research into this area. It is a voice and perspective that has been missing so far.

Chairman

I have a final question. Resources have been mentioned a few times or the possible redistribution of the existing resources. If the witnesses had a magic wand, and in the context of resources, what would they like to be the final outcome where they would be absolutely 100% happy?

Ms Molly Joyce

That is a real question.

Chairman

It is.

Ms Molly Joyce

From our perspective, it would be a complete redistribution of existing resources into providing proper mental health and addiction supports, in particular in the community. We have presented to the high-level task force. It is difficult for us because we are a penal reform organisation and we are looking at prison. We end up talking about prison all of the time when we really want to say that people should never get to the stage where they end up in prison, but so many of them do because of circumstances.

If we could, we should put the resources into the communities where we know there are high levels of people ending up in prison because of poverty and addiction and mental health, which is all related to socioeconomic disadvantages as well. With all of the services in those communities and generally with mental health and addiction, we would try to address the root causes so that people do not end up in a position where they end up in contact with the criminal justice system in the first place. If we were waving a magic wand that is where we would want to end up, focused on trying to address those issues at the very outset and actually seeing why people end up committing the offences; we would like to end up where we are not always just putting our resources into the reaction and the response.

Professor Eilionóir Flynn

We fully support that. We would like to see the resources in the community for support based on informed consent. That is what is really critical.

Chairman

There is no doubt that the opening of the new site for the Central Mental Hospital is good news.

I am hopeful that the more modern and spacious facilities there will improve the lives of residents and staff. However, I note the section of the report where one of the research participants stated they felt the planned move served as an excuse for not acting to rectify issues. I hope the move will provide a fresh start and that the new Central Mental Hospital will be adequately resourced and will be held accountable in upholding its human rights obligations through a robust combination of independent advocacy services, legal oversight, familial input and regular inspections from the national preventative mechanism once Ireland ratifies Optional Protocol to the Convention Against Torture, OPCAT. Now is the perfect time to start thinking of a programme of reform for Ireland's forensic mental health service.

I thank sincerely all our guests for their work, expertise and passion in this area. We will stay connected, from the committee's point of view. They will keep us in the loop as to what is happening. That will be important going forward.

I thank all our guests. I hope they all have a lovely Christmas.

The joint committee adjourned at 12.51 p.m. sine die.