Mental Illness: Motion.

Mrs. Robinson

I move:

That Seanad Éireann notes to report on Treatment and Care Persons suffering from Mental Disorder who appear before the Courts on Criminal Charge published in January 1980, and came for the immediate introduction of the Criminal Justice (Mental Illness) Bill annexed thereto.

I am very glad to have the opportunity here in the Seanad to consider the recommendations of this report, and the urge the immediate introduction of the Criminal Justice (Mental Illness) Bill which is appended to it. I welcome the presence of the Minister of State in the House and look forward to his comments on the report and on the draft Bill.

This is a specific but complex are concerning the treatment of people which have some mental illness or handicape and who come before the criminal court because they are charged with criminal offences. It is one of the dark areas of the law which has been neglected for far too long. It is an area in which there are few votes. The people concerned are not articulate, are not able to speak out for their own rights and needs, and there is no strong lobby or no great pressure for reform.

I remember when I was Reid Professor of Criminal Law in Trinity College I lectured as part of the course on the rights and remedies of persons suffering from mental illness or handicap coming before the criminal courts. I was ashamed at the lack of reform down the years in the Irish court jurisdiction and procedure in this area and the absence of a humane and decent approach to this problem.

The reality was then, and still is, that a number of unfortunate people who come before the criminal courts and are not responsible for their actions are, nevertheless, treated as criminals and processed as criminals. In some cases a defence of insanity may be raised in relation to an indictable offence, and a verdict of not guilty because of insanity, sometimes miscalled guilty but insane, is given so that the person is detained indefinitely at the pleasure of the courts. Even when the defence of insanity has been raised, the whole approach and treatment are not satisfactory and require substantial amendment.

The first major reform needed—and it is basic to this report and to the draft Bill— is to transfer a substantial part of the jurisdiction in this area from the Minister for Justice to the Minister for Health, and to give the Minister for Health a major role in relation to regulations, treatment and care of persons suffering from mental illness who come before the criminal courts.

This is a report of a committee entitled the Interdepartmental Committee on Mentally Ill and Maladjusted Persons and they have issued two previous interim reports in related areas. The Committee is chaired by Mr. Justice Séamus Henchy of the Supreme Court and includes in its membership some very distinguished psychiatrists, the Director of Public Prosecutions, the Irish member of the Commission on Human Rights and senior officials from various Departments such as the Departments of Health, Justice, Labour and Education. The text of the report under discussion is concise and well reasoned and, as one Senator said to me downstairs, happily brief enough to be read and absorbed for the purposes of a discussion and debate of this sort. Not only is the report concise and to the point, but the committee have done a very considerable amount of homework. They have drafted not just the heads of the Bill, which is sometimes done by a committee who want to see particular legislation introduced, but they have annexed a full draft text of a proposed Criminal Justice (Mental Illness) Bill so that it could be introduced very rapidly if there were the political will to do it. There might be one or two minor amendments or adjustments but the Bill is relatively ready to be tabled.

I hope there will be broad agreement on both sides of the House today as to the importance and urgency of reform in this area. Although the report was published and circulated to Deputies and Senators only in January, I understand it was submitted to the Government about two years ago so I look forward to the response of the Minister in his contribution. I would hope that there has been adequate time for the Minister to consider both the problem identified in the report and the approach recommended by this very prestigious committee and that he will be in a position to give us a very specific indication of whether the Government accept the proposals and if so when they would intend to introduce the necessary Bill.

I would like to turn now to the problems identified by the committee which are well summarised in the paragraphs of the report. The committee point to the lack of proper and adequate jurisdiction in the existing criminal courts and lack of any jurisdiction at all in the District Court to assess the fitness or unfitness of a person to go on trial as an accused. I would like to turn to the way in which it is summarised in paragraph 4 of the report because this shows the present state of the law and I do not think any of us can be happy about that.

Paragraph 4 states:

As the law stands, for the purpose of determining guilt or innocence on a charge of having committed a crime, judges and juries are debarred from taking into account mental illness or personality disorder unless it is sufficiently serious to amount to insanity as that term is understood in the criminal law. For the test of insanity, see the judgment of the Supreme Court in Doyle v. Wicklow Co. Co. (1974) I.R. 55. Mental illness or personality disorder, as a general rule, is taken into account only for sentencing purposes, and even then it rarely becomes a factor in the judicial process unless it is raised by the defence. In the result, many persons are dealt with by the courts as "normal" offenders who are either not responsible (or not fully responsible) for the conduct charged against them or who, even if fully responsible for such conduct, are in need of psychiatric or other special treatment. The inability, or the restricted ability, of the courts to order that convicted persons receive appropriate psychiatric treatment is a grave defect in the present state of the criminal law. For example, the courts have no jurisdiction to order that a convicted person be sent direct to a psychiatric institution for treatment; they can but annex to a sentence of detention a recommendation for psychiatric treatment. The Committee is satisfied that a not inconsiderable number of persons, either before or after conviction, pass unnecessarily and undesirably into prisons or kindred places of detention. Because such places are of their nature not usually conducive to successful psychiatric therapy, the position is not remedied by court orders providing that prisoners be given suitable psychiatric treatment. The Committee is of the opinion that an appreciable number of accused persons who are in need of either in-patient or out-patient psychiatric treatment are dealt with by the courts without due regard to the need for such treatment.

The language is concise, perhaps rather dry, but the criticism comes forward very clearly. There are people being treated as criminals before our courts who ought to be patients. There are people being sent to prison who ought to be given psychiatric care, treatment and attention and that is the basic nature of the problem which this report highlights and it makes clear and specific recommendations as to what should be done.

A major purpose of the draft Bill attached is to ensure that where any court —including for the first time the District Court—has reason to believe that an accused person may be suffering from mental disorder the court will be empowered at the earliest possible opportunity to have the situation medically investigated and then, on the basis of a medical report, to make the appropriate order on that basis. That is a key provision of the Bill. It is part of the whole framework of the Bill.

Secondly, the committee propose a test of insanity which they incorporate in the draft Bill and this is set out in paragraph 7 of the report. They refer to the legal criterion for assessing insanity and they recommend a tripartite test:

(i) did the accused commit the act or commission charged? (ii) if so, was he suffering at the time from mental disorder (as defined)? and (iii) if so, was it such that he should not be found guilty of the offence? This test, which has not the detail or particularity of some of the other formulations, has the merit of concentrating the decision on whether, having regard to the nature and effect of the particular mental disorder, the accused should in the circumstances be held to be outside the range of legal responsibility.

The test as defined is structured in order to identify that vital question.

Thirdly, the Bill gives wide powers to the courts enabling them to refer, at a very preliminary stage, or commit a person in need of treatment to a designated centre. These centres are part of the framework envisaged in the Bill for the treatment of persons who need special care and in-patient treatment. I will refer later to the very strong points they make about out-patient non-institutional care and treatment.

The Minister for Health under the Bill would have jurisdiction to designate psychiatric centres and these are defined in the Bill as a hospital or other institution in which treatment is provided for patients suffering from mental disorder. It is provided that these centres can be either public designated centres or private designated centres, public if they are in the ownership or care of the health boards and private if they are private institutions. There is a provision in the Bill that the Minister would not designate a private institution without the prior consent of that institution.

Another very important recommendation of this report and provision of the Bill is that the Central Mental Hospital in Dundrum, which is governed by a statute placing it in the context of a criminal institution should be brought under the Health Act of 1970. There have been many improvements effected there but basically it is still a criminal lunatic asylum which has improved a bit in practice. What the Bill recommends is that the Central Mental Hospital be brought under the Health Act of 1970, be brought within the range of institutions which come under the jurisdiction of the Minister for Health and become a designated centre among other designated centres for the care and treatment of people who, on the basis of the medical assessment and orders, are sent to these centres. This is extremely valuable. One of the problems with the Central Mental Hospital in Dundrum is that it has an aura of an institution where people are sent if they are criminally insane. If there are various designated centres, then there are lots of advantages. People can be sent to a designated centre near where they live, in Letterkenny, or in Clonmel, or wherever it may be. They are the better able to come out into the community, out to their families, to have out-patient care wherever possible and also it breaks down this stigma, aura or barrier of having just one central institution for the care of people in those circumstances.

Another important technical recommendation of the Bill is for the introduction of the defence of diminished responsibility in cases of charges of treason, though I suppose that is almost out of date now—we very rarely have charges of treason—but also on charges of either capital murder, which still carries the death penalty here, and murder. This defence of diminished responsibility has been recognised in other jurisdictions. It has, for example, existed in the UK since 1957 and it would mean that a person would effectively be treated on a charge of manslaughter rather than for capital murder or murder. There would be a greater possibility of a discretionary sentencing afterwards and not the mandatory life sentence or, worse still, the potential capital sentence for capital murder.

The report deals with probably the most difficult area of all and that is the need for a recognition of a special category of persons. These are the aggressive psychopaths, the really difficult cases, and the report recommends the need for a special unit. In paragraph 12 of the report they say it would be necessary to identify persons suffering from a persistent disorder or disability of personality which manifests itself in abnormally violent or aggressive conduct and they make it clear that a designated centre under the Bill would not be a suitable place for the few extremely difficult cases where a special unit would be required. They suggest that this should be under the jurisdiction of the Minister for Justice.

Another very important and basic recommendation of this report which is also contained in the draft Bill is the provision for a mental care review body. This is governed by paragraph 14 of the report of the committee. It proposes the establishment of a permanent body to be known as the Mental Care Review Body. Paragraph 14 sets out who they consider should be the members of it, a chairman and deputy chairman appointed by the Minister for Health, a member or substitute member appointed by the Minister for Health, a member or substitute member appointed by the Minister for Justice and two members appointed by the Minister for Health from a panel of five psychiatrists nominated by the executive council of the Royal College of Psychiatrists (Irish Division).

The powers and responsibility of that mental care review body are most important. A person detained in a designated centre or in a special unit would have a right to apply to the review body for review of his detention and this right could be exercised at specified intervals. It would not be just a review perhaps at the beginning of people being sent there but at regular intervals. The review body would know of every case of a person sent to a designated centre and would have a role of scrutinising and of monitoring the position of such. people and would be able to get regular appeals for assessment of their position from the individuals concerned.

This seems to me an extremely important recommendation. It is the kind of review body we ought to have in our general prison system. We ought to have a parole board so that when a prisoner is sent to prison for a seven or nine year sentence the board can assess the individual and can see whether in the interests of rehabilitation, and because it would benefit the person, it would be possible to make a recommendation for a review of the original sentence and for consideration of the individual factors in each case. I have never yet met a judge who was happy with the sentencing system and they carry out a responsibility in that area. We ought to have a general parole board but in particular this Mental Care Review Body is a very important institution, a very important aspect of the Bill which I would strongly support.

The committee make it clear in their report, and this is spelt out in paragraph 15, that they are very much in favour of out-patient, non-institutional care, wherever possible. Having specified various centres and designated them the committee are concerned to emphasise that this does not mean they are recommending that institutional care in a designated centre is necessarily the right approach. In paragraph 15 of the report the committee say:

The Bill makes clear that the courts are to have jurisdiction to ensure that in an appropriate case a person shall, in lieu of being sent to an institution for treatment, be required to undergo out-patient treatment. It is envisaged that those undergoing such out-patient treatment and those released from a designated centre or special unit will have the full benefit of appropriate community services.

The committee leave the details of that for regulations to be made by the Minister for Health under the Bill.

Another important safeguard contained in the Bill is the provision for legal representation by a solicitor or a barrister where appropriate, when somebody is before the courts and important decisions as to what is to happen to him or her are taken. There might be an important decision about their fitness to be processed by the court or, if there is a finding that they were suffering from the kind of mental illness which relieves them of responsibility for their acts, a decision about what will happen to them afterwards, whether they will be sent to a designated centre or required to have out-patient treatment. It is important to ensure that persons in that situation have a right to legal representation because it would be a mistake to move from the criminal courts processing these individuals as criminals but with the possible safeguard, such as it is, of legal representation to an approach that was entirely treatment, treatment perhaps intended to be in the best interests of the individual but without the concern for such basic things as the liberty and civil rights of the individual. Although it is appropriate and right that the emphasis be moved to the jurisdiction of the Minister for Health and that instead of convicting criminals and sending them to prisons we are treating patients and sending them to designated centres, nevertheless it is important when these vital decisions are being taken that people, particularly with this kind of handicap who are not able to argue their own case and speak for themselves, be legally represented.

They are the main recommendations of this report and the key provisions of the Bill which is tabled and annexed to it. I would like to make a few general comments on the report and the draft Bill. First of all, if the step is taken, as I sincerely hope it will in the very near future, to accept the recommendations of the report and to implement this Bill, then if it is to work it will be important that judges are educated to avail of the emphasis in the Bill and to discharge their responsibilities in the matter. A great deal will depend on the ability of a district justice or Circuit Court judge to identify, looking at the person before him, that the person has a problem and that a medical report ought to be sought in order to ascertain whether he or she is a fit person to come before the court as an accused or should receive immediate care or be dealt with in such a way that he or she would be sent to a designated centre or recommended to have out-patient treatment.

The whole Bill depends on sensitivity, understanding and training in our district justices and Circuit Court judges and, indeed, in High Court judges in so far as they would be in the Central Criminal Court dealing with more serious criminal charges. One thing that would have to be envisaged would be specialist seminars for district justices or Circuit Court judges to ensure that they knew the symptoms and the attitudinal behaviour of persons coming before them who had mental problems; to ensure that they were sensitive in their own questioning and alert to what they should be looking for; to ensure that they knew the kind of report they should seek in relation to individuals and, perhaps just as important, that they understood the report submitted to them by medical experts, either reporting in a written form or appearing in court as witnesses giving expert evidence about the mental health or stability of an individual.

That is a very important point. It is a point that could be made in relation to other areas of our law. Our judges could benefit from going back to school in a number of areas but specifically in this one. Specialist seminars ought to be, organised and it is my understanding that in the United Kingdom they have regular specialist seminars. There are people with expertise in this area and I am sure they would be willing to assist in organising similar seminars with the Irish medical profession.

One vital lack in this area, as in so many other areas of law whether it is criminal law or civil law, is the lack of adequate statistical information, lack of information on the numbers involved, on the kind of problems that arise, on what happens to people when they are found unfit at the moment if they are charged with an indictable offence or when they are simply ordered to be detained. If we are to introduce a Bill in this area shifting the emphasis to care and treatment, to the concept of a patient in need of particular attention, then, from the very beginning, it would be desirable that the Minister would establish a system of very close statistical monitoring and accounting so that there is a centralised place where we know what is happening. Perhaps one of the functions of the mental care review body would be to take upon themselves a particular responsibility in this area.

Another point I would make is that although this afternoon we are considering this report which is narrow, specialist, complex and I believe very urgent, and the Bill that is annexed to it, we are considering a general area that needs radical reform, the whole area of treatment of mental illness. It would be appropriate for the Minister to give some indication of what is happening in a more general way in this area. As I understood it there was to be a Bill. I thought that there would be by now a text of a Bill on the reform of the general area of mental illness and the treatment of persons who are mentally ill and the approach under our statute to that. I know it is straying slightly outside the strict terms of this motion, but I do not think we can examine in detail this facet of the problem of mental illness, that is, the mental illness of persons who come before our courts charged with offences, without having concern for the need which has been reported on, which has been argued and stated many times over, for a general reform in the whole area of mental health. I understood that legislation was to be drafted and I would welcome an indication from the Minister as to what the position is.

I would be very grateful to the Minister if he would in his contribution to this debate give us an indication of the thinking of the Government and of the Departments concerned on the recommendations of this report. An interdepartmental committee with some very reputable outsiders to the Departments must have more influence than a totally independent body. I do not think anybody could describe the members of this committee as radical outside independent persons who might take a completely different line from departmental thinking within the two relevant Departments, the Department of Health and the Department of Justice. The report has been with the Government for something like two years and, since we now have it published and have an opportunity here to debate it, it would be helpful to have on the record a very specific indication of Government thinking and a specific time scale if the Government intend to introduce the legislation and the kind of institutional reform and amendment of treatment in this area.

Finally, I would also be grateful if the Minister would indicate in a more general sense the proposals which the Government intend to make in the area of mental health. I hope that there will be general support in the Seanad for this motion and I would remind Senators that it is not just a motion noting; it is a motion seeking the tabling of the Bill appended to this important report.

Mr. Harte

I should like publicly to congratulate the Minister on his appointment. I know he is not unenlightened in the application of justice and I am sure he will bring his experience to bear through the office.

No matter how long this report took to come to light, it can be described as a report that brings great relief to the families, the guardians, the parents of the mentally ill and persons generally in that category, particularly those who have been unfortunate enough to become victims of the present legal system. The Bill is very welcome in a special way to those of us who are committed to the Labour Party because in Labour Party policy over a long period of time, even though this constitutes only one aspect of it, we have been advocating many changes in the area of health. In this particular area we have been advocating not exactly the recommendations made in the report but something along those lines. Consequently the report satisfies our appetite for the changes we feel are necessary to deal with the mentally ill and the maladjusted when they appear before the courts.

The report seems to carry its weight in four main areas. First, the duty is now clearly placed on the court to investigate or inquire into the alleged offender and whether he is responsible or not responsible for the conduct charged against him. This is a wonderful step forward because at present there is no way for this question to be raised by the court. As Senator Robinson said, the onus is on the defence to make the case that the person before the court is deranged or is irrational to a large degree. The position is that the courts, as the law stands, must in the first instance on behalf of the State exact a pound of flesh in the way they would take it from a normal person. This recommended change consequently appeals to justice and humanity and to a great extent relieves the judge of the embarrassment he may suffer, because many judges know under the present system that in fact people who are before them are really mentally ill or maladjusted. The position is that all they can do is recommend that they see a psychiatrist but that the sentence be carried out, and exact the pound of flesh on behalf of the State. While doing this they know that in fact the person should be sent to another place where he would get proper care and attention and would be under constant supervision in a proper type of institution.

The second point about the report is that it is a further step forward towards enabling the court to send people suffering from mental disorders to properly designated institutions instead of jail. This is a very, very significant development. It is important because while the judge at present passes the sentence, as I have said earlier, he can only recommend that the person go to a psychiatrist, but he can in fact be ignored. If the judge's recommendation can be ignored the whole thing can be counterproductive and in the long run no treatment is effective enough to cure the person or make his problem less acute. This is not just because of being ignored but because there is constant supervision in the properly designated institutions with a greater chance that the problem of the patient, as he should be so described now under this recommendation, would be remedied. He would receive the necessary treatment and supervision rather than being left in the position where the judge sentences him to jail, recommends psychiatric treatment and that recommendation is either ignored or attended to. One way or another he languishes in prison for a long time and in the final analysis he gets so bad that the warders just want to get rid of him. He is a burden to them; he is a burden to everyone in the jail and consequently he may finish up by being put into some sort of geriatric unit if he is old enough or just off to a mental institution because he has not had any effective treatment before that which might have allowed him to go back to the community. There is that danger in the present system where the person is allowed to languish and I think there is plenty of evidence of it.

The third point, the setting up of the review body for all patients under psychiatric care, is a very, very welcome one indeed and it is long overdue. It would impede my progress towards the other points I want to make if I dwelt too much on that but I would like to note how welcome and desirable it is.

The fourth point is, I think, the main point in the report as I see it. It does clear up the legal wrangling. The district justice at the moment cannot take the decision that the person is insane and because of that, the person can end up before a judge and jury. The Minister may correct me here but if I am not mistaken it would not be beyond the range of possibility that this person could end up before a jury for loitering with intent or something like that, not even a greater crime than that. It is rather disturbing that the present system can operate in that way and therefore the point made by the review in this particular area is a very, very desirable advance.

I do not know the law too well but my colleague is a lawyer. I am trying to argue from the layman's point of view. As I see it, from the little bit of reading I have done and the few appearances I have had in court—not on trial I might say, but as an observer—I felt that the argument even when made by the defence is so restricted that it does not achieve anything at all for the person. As a layman that means to me in effect that to argue mental disturbance is not in fact a defence as the law stands at the moment. Consequently, because both the report and the Bill will actually remedy this it is more welcome than ever.

I do not know if any Senators have had experience of the pink form but at present the system is that one or two doctors with a pink form can sign you into a mental institution. There are some arguments as to whether the assessment unit can hold you only for 48 hours or not, but because it is possible for a couple of medical practitioners to sign the pink form it means that geriatrics finish up in mental hospitals. That may not be relevant to the report but it is relevant to the fact that there is a review body for all psychiatric patients and it is the context in which I make the point. Therefore, the Bill itself and the report give scope for tackling this malpractice.

I think it is a very sensible arrangement that where somebody is coming before the court there can in fact be a diagnosis in advance to say that the person can be put in proper custody in a Garda barracks or elsewhere. The fact that you may have to amend other criminal laws, as the report says, should not stop us from going ahead with this Bill because if you create a cause you create an effect, and I do not always approve of dealing with the effects, but inevitably under our type of system and the way we do our business, if we create a cause we obviously create an effect and consequently we have to deal with the effect. The effect of bringing in this Bill is that we will have to alter some other Acts, but that is what we are here for, we are here to do that on behalf of the people.

Because of this report the duty is falling on us now to let the community at large know that people who come before the courts do suffer from mental illnesses and it is not just a matter of the judge saying so. There is now evidence of the fact that the person is mentally disordered and it is not proved after he is sentenced but it is proved beforehand and this is a very, very encouraging development also. Again, I might say in a very general way that we have campaigns to cure heart problems, campaigns to cure cancer by prevention and treatment and the Bill in its tone, I would say rather than its written word, suggests that similar efforts might be made in this particular area of mental health. Therefore, I see the introduction of the Bill as being of paramount importance.

In this whole area of people who are maladjusted or mentally ill or irrational or deranged—whatever way you want to describe it—appearing before the court the reason we have not changed the law and why the commission was necessary is that we have been preoccupied with caring for the defence of the State, or the national defence. Because of that, we tied the hands of the courts and we did not produce any enabling legislation to help the judges. I am sure the judges, who are very experienced people, have solved the problem about this themselves. We were unable to raise any particular issues about it in any effective way. It is a good sign now that the judge could be in a position, if this Bill is introduced quickly, where he will not have to look on the person before him just as an ordinary criminal but as somebody who was not in fact responsible for his actions at the time the crime was committed. We may argue or hear arguments from outside minority groups and others that it is incumbent on society to protect the lives and the property of innocent law abiding citizens, but the onus is also on us to protect all our citizens, particularly those who cannot protect themselves. That is why this report is very important. I do not mind the argument about inadequate deterrents to prevent crime; I do not think the Bill will affect that particular concept. That is probably right. At least it will check up on detention in suitable places and that is very important.

I wonder how much money is allocated to this whole question of mental illness. It must have some relevance to this question of people appearing before the courts. We should consider that area as quickly as possible. Here we have a report whereby there could be better assessment, better screening and treatment of maladjusted people, more mental institutions capable of offering appropriate treatment. Finally, may I say that the Minister should consider incorporating the whole prison medical service into the national health service rather than leave the services as they are at present.

Professor Conroy

I would like to join in welcoming the Minister and in congratulating him and I would also like to congratulate the members of this interdepartmental committee on the excellent work they have done. They are a very distinguished, able and knowledgeable group of people and they have presented an excellent report and made some very worthwhile suggestions in what is an extremely difficult area in relation to legislation, in relation to medicine and in relation to society as a whole. I must say I greatly sympathise with the sentiments expressed by Senator Harte and the general tenor of Senator Robinson's remarks.

It is indeed a sad situation where people who are mentally ill are before the courts. It is quite evident to everyone concerned—the legal people, the court itself, the guards, the medical people involved, probation officers—that it is really a mental problem, one requiring treatment, rather than a criminal or other offence. This is a very sad situation and it does indeed require reform and many of the Acts that were quoted here in relation to this report—in fact the majority of them, I think—date back to the early years of the last century.

I particularly welcome certain specific aspects of the report, the reference, for example, to infanticide, a very difficult, a very heart-rending situation, the references to diminished responsibility and the extremely difficult position in which the courts might find themselves in relation to mandatory sentences.

Having said that, I have to express certain reservations. This is an extremely difficult area indeed. Although agreeing wholeheartedly that reform is needed I am not just entirely convinced as yet I should fully agree with the detailed recommendations in this report and unfortunately when one does begin to look into it one does begin to realise that the problems are very grave and very difficult.

One must be very careful here that we are effectively reforming the legislation, that we are effectively reforming the criminal code, that we are effectively providing for a situation where those who are mentally ill will get treatment. We must be very careful that we do not in any way set up a situation in which mental illness could become either a cover for an acquittal where it is inappropriate or where the situation could become so abused that the public at large instead of welcoming legislation, which I think they should, and I think the legislation is needed, might end up feeling that some of the legislation which had been introduced had had quite the contrary effect to what was intended and thus bring what are really much needed reforms into disrepute. There is a very considerable danger of this. It is one, I am sure, of which the committee are aware and they have made a very excellent effort to deal with some of the problems involved.

But there are difficulties and I suppose the difficulties, although they arise particularly in a minority of cases, can nonetheless be very grave. I refer to the report where they talk about psycopaths, in other words persons with mental disorders who are violent, who are dangerous to themselves and to others. Indeed, there is a sort of omnibus section here in relation to such persons. If we take definitions, page 14 of the report, there is an explanatory note on mental disorders and violent personality disorders, trying to put forward definitions, distinguishing between mental disorder which is an illness or a defect of the mind and violent personality disorder which, as its name implies, is a disorder or a disability of personality persistent in its character and manifesting itself in abnormally violent or aggressive conduct. There could be some slight argument there about such a definition. There will be those who will consider that both such categories are forms very definitely of mental disorder. I can see great difficulties here and arguments arising, certainly from the medical point of view, and no doubt in turn from the legal point of view.

Psychiatrists are in a very difficult position here. It is exceptionally difficult to classify or distinguish various types of mental illness. In turn, to make that a matter of legal definition will, I think, bring about very grave problems, problems which I hope will be solved and legislation brought in to deal with them. I am not just happy that the proposed legislation here or some parts of it, is really sufficient or adequate in this respect.

Senator Robinson, in her very interesting introductory remarks to her motion, referred to the brevity of the introduction to the report itself. Here again, although in many ways welcoming this brevity, it may perhaps give a slight impression that the matter is, or can be, fully covered in slightly less than six pages. The terms of reference of the committee were to examine and report on the provisions, legislative, administrative and otherwise, which the committee consider to be necessary or desirable in relation to persons, including drug abusers, psychopaths and emotionally disturbed, maladjusted children and adolescents who have come, or appear likely to come, in conflict with the law and who may be in need of psychiatric treatment. I would think that certain persons referred to there—drug abusers or the psychopaths—could merit and take a full report for themselves.

I hope the committee will forgive me but I think there is a slight danger in the brevity with which they have introduced their report. I am sure all the members themselves are aware of the extremely difficult problems that they are referring to. I am not so sure the people reading this report will quite realise the depths which will have to be plumbed in order to bring forth really suitable legislation. I think it is very important that when we do bring in reform legislation, reform legislation which is very badly needed, that that reform legislation should stand the test of time, be found to be appropriate both by the legal people involved and the medical people—and, as Senator Robinson has indicated, a very considerable trend in this report is to shifting the onus on to the medical people—and at the same time carry public confidence with it because without that I fear we may end up with an even worse situation than we have already. That has been indicated by the proposer and seconder of the report. There is a very definite need here which I would hope we would support on both sides of the House.

Mr. Howard

I would like, first of all, to join with the other Senators in extending congratulations to the Minister on his first visit to the Seanad and to wish him well in his appointment. I welcome the opportunity of making a few general observations on the report on the treatment and care of persons suffering from mental disorders who appear before the courts on criminal charges. I feel that as a society there is a responsibility and duty on us in any area where people such as those referred to, to whom the report applies, are involved and who may in some way be at a disadvantage, to ensure that if there is a disadvantage that disadvantage is removed.

I believe that people with mental deficiencies coming before the courts on criminal charges are certainly at a disadvantage as the law stands. Reform is needed in this area and the report that we are discussing is worthwhile in the sense that it makes recommendations as to how these disadvantages could be removed, how reform could be introduced in a positive way. Therefore, I believe that the report is worthwhile, that it is practical and that it has merit.

As matters now stand, I am satisfied that persons with a mental disorder or handicap who appear before our courts are in many cases at a great disadvantage. There are, of course, the very obvious ones, that in the majority of cases or in very many cases the people concerned lack the capacity or ability to explain adequately their involvement or non-involvement in the case to which the charge relates. They often lack the capacity to defend themselves as effectively as a normal person would.

There is the question of the duty of the courts to establish the sanity or the insanity of a person on a criminal charge. That duty has been non-existent up to now in so far as the determining of the guilt or the innocence of the person involved is concerned. I understand that the question of the sanity of the person, and through that the person's responsibility in relation to the crime, is taken into account only when the offence has been proved or otherwise and relates only to the measure of sentence that may be imposed in relation to the offence that has taken place.

I support fully the recommendation in the report that courts should have the power to send persons with a mental handicap to designated centres of training. I believe that it is very clear that justice requires that the courts would have the responsibility and the obligation of ensuring and establishing the mental condition of a person where there is any doubt that a disorder or a handicap may exist in that person.

I have read the recommendations as to how the test of insanity should be carried out and again I feel that there is merit there and it is something that I would strongly support. I also accept—because there is merit in it—that the responsibility for persons with a mental disorder coming before the courts on criminal charges should, where it is established that a disorder does exist, become the responsibility of the Minister for Health rather than of the Minister for Justice. I strongly support the concept that is in the report that the focus should be on the care, treatment and attention given to people who are so affected.

I am conscious of a point made by Senator Conroy. I believe there is need to exercise care that while on the one hand we want to ensure that no person will be at a disadvantage or will suffer a handicap before our courts or in society because that person may have a mental handicap or a mental disorder, at the same time we also want to ensure on the other hand that the door is not opened where the plea of insanity is availed of by many people before our courts whose mental condition would not be such that they could be described as suffering from mental disorder or handicap. That is a point that has to be taken into consideration. It is something that requires to be fully appreciated, that when the reforms are brought in—I hope in the not too distant future—we shall ensure that there are safeguards there that the plea of insanity is not opened to people to whom in justice and honesty it should not apply.

I hope the Minister and the Government will give very serious consideration to the early introduction of the Bill with which the report is concerned. Perhaps, they may feel, in their wisdom, that there is need to improve, to amend it in some way, but basically it is well equipped to meet this situation with which we are confronted and are attempting to deal. I hope that no undue delay will take place in presenting legislation to deal with the matter under discussion.

I conclude by saying that, while we have an obligation to persons with mental handicap, we must also recognise, as another Senator said, the suffering and the embarrassment which their situation often causes to their parents, their relatives and others. I believe that these relatives would welcome the improvements and the measures that are proposed in that report.

Mrs. Cassidy

It gives me, also, great pleasure to welcome the Minister to the House on his first visit, to listen to and take part in this debate on a most important report. I should like to make a few very general comments on certain issues that were raised in the report.

First of all, the verdict "guilty but insane" is both an unreal and an unjust one. It is unreal because it fails to take into account the legal criterion for the definition of "insanity", which is still basically that contained in the M'Naghten Rules. The rules very clearly set out this criterion and I quote:

Every man is to be presumed sane until the contrary is proved. To establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature or the quality of the act he was doing, or if he did know it, that he did not know that he was doing wrong.

That is very clear. How can anyone be held to be guilty of a criminal act if he was incapable of knowing he was doing wrong at the time he committed it? It is not only an unreal verdict, it is a very unjust verdict, because it confers on the person convicted and on his family a terrible stigma. This contradiction was created by the Trial of Lunatics Act of 1883 and it is high time we got rid of it.

Section 13 of the proposed Draft Bill proposes to do just this. It would give to a justice of the District Court jurisdiction to find, instead, a verdict of "Not guilty by reason of mental disorder". This is a very much more just and humane verdict. We might ask ourselves are the criteria set out in the M'Naghten Rules adequate today. These rules are, after all, the replies of a panel of judges to questions raised by Members of the House of Lords after a debate in the House of Lords following the trial of Daniel M'Naghten in 1843. So, perhaps, it is time we changed the criteria.

As a logical development of this new verdict, the Bill also proposes, for the first time, to empower the District Court to consider the mental condition of persons charged before it and to make orders for their treatment and care. It is a very good thing that such persons should be dealt with properly as people in need of care rather than as prisoners at District Court level. The District Court is already overburdened with work. It deals, for example, with consumer cases that should more properly be dealt with by another system of small claims courts. It is also bogged down in family law matters. There might be a long delay before the person would be examined.

Section 10 (1) of the proposed Bill at paragraph (b) provides that if the justice remands the accused in custody, he may direct that he be examined while in custody by a registered medical practitioner nominated by the court. The question arises, while in custody to where is he to be remanded? The possibilities of delay are numerous and many who are in need of treatment and who are arraigned before the District Court are young people. Are they to be held in custody in an institution like St. Patrick's, for example? I do not think that is a suitable environment for persons in need of medical treatment. Delay may also arise while the court is waiting for a medical consensus on the condition of the accused. Delay in this area is certainly undesirable and the first thing that we would have to ensure is that the procedures in the District Court are streamlined so that there is no undue delay.

The report also recommends the setting up of a mental care review body, one of whose functions will be to consider the welfare of prisoners in custody. This is needed, because 120 prisoners were sent to mental institutions in 1975 and, while the number had fallen to 92 in 1978, the fact that they have to be sent at all from prison shows the very great need in this area. The report is the work of an interdepartmental committee of experts specially set up. We also had, some time ago, a specially set up committee on the Pringle Report, to report on the need for a free civil legal aid system. Also in the pipeline is the report of a committee of the Department of Health, which will put forward certain proposals to reform the law in so far as it relates to children. All these are separately set up committees. Should this not be the work of the Law Reform Commission?

The Law Reform Commission was set up by Law Reform Commission Act of 1975. Its function is to keep the law under review and, in accordance with the provisions of this Act, it "shall undertake examinations and conduct research with a view to reforming the law and formulate proposals for law reform." In its first programme, the commission said that while it was not the intention of the commission to undertake study in the whole field of family law, it would be concerned with the adequacy of the existing law for the protection of the family. It also said in its first programme that it proposed to examine various aspects of the criminal law, including the mental element in crime and the legal force required to constitute a crime.

So far, we have had from the Law Reform Commission proposals in relation to civil liability for animals, liability for builders, criminal conversation and breach of promise. Do we have to wait for the reports of specially set up committees and hope that we get the report on the Order Paper of this House, before any meaningful law reform takes place, at the same time as the Law Reform Commission is merely nibbling around the edges of the whole area? The thrust of this report and of the annexed Bill is to ensure that people who are mentally and physically in need of treatment may be treated as patients rather than as potential prisoners. It deals with an area of the law that has been neglected—neglected, I feel, because of our ambivalent attitude to mental disorder. We give very fully and willingly of our time and our money to help the mentally handicapped but mental illness and its associated problems are swept under the carpet. We fear what we do not understand. While most of us can cope, eventually, with the problems of physical illness we are unable to cope with the destructive effect, mainly on family life, of mental illness. We have not faced up to it.

There is also the difficulty that while the legal criteria for defining insanity can be very clear-cut and very easy to understand, the medical definition of insanity may, indeed, vary from doctor to doctor. If I might take a rather extreme example, if somebody steals a motor car, goes for a joyride and ends up wrapping the car around a lamppost, at the same time ramming a few patrol cars on the way, I do not think it would be difficult to find many medical experts who would say that he was insane at the time he did it. So, it is very difficult to put across to the man in the street what we are to do with a person like that. Are we to consider him a suitable case for treatment or should he be behind bars? I know where the majority of public opinion would put him. Senator Conroy has referred also to the difficulties in this area. It is, as the proposer of the motion said, a very dark area and I hope that the debate on the report will help to throw very much needed light on it.

Mr. Cooney

I should like to join in the welcome to the Minister of State. I gathered from something I read at the time of his appointment that he would have responsibility in the law reform area and perhaps the lack of action by his Ministers to introduce reforming measures throughout the last two and three-quarter years will now be rectified. I do not know that I would altogether recommend him to use the draft Bill attached to this report for his maiden journey.

This Bill, as I see it, sets out to do very commendable things, to improve the lot of mentally disturbed people who come in conflict with the criminal law, to improve their position before the courts and, more importantly, to make provision for adequate treatment for them afterwards. But in doing that, it impinges on a constitutional principle that is basic to the whole legal standard of this Bill. We have the division of powers enshrined in our Constitution, divided between the judicial, legislative and executive areas. One area in which the borderline between the judicial and executive has been very clearly marked up to now has been in the area of sentencing and subsequent dealing with a prisoner. It has been well settled that up to now the courts have discharged their judicial function in applying the law in relation to the person before them and if a sentence is imposed then it is a matter for the executive to regulate the carrying out of that sentence and any matters arising from it, or ancillary to it. I read the proposals in this report and the import of the draft Bill attached to it as going henceforth to involve the courts, the judicial arm of the State, in the executive area of the State, in so far as it would give the courts power to follow into the area which up to now has exclusively belonged to the executive the person who has come before them after his business with the courts has ended. I do not know if I altogether approve of that principle.

The strength of our Constitution is that the division of powers has been rigid. The strength of the Constitution is that if that rigidity is maintained, each arm of the State is a check on the other. If we now find that one arm of the State, the judicial, is being given power to interfere with what was hitherto the executive area, what check is there on the judicial area when it becomes involved in what has hitherto not been its scene? This basic constitutional principle is infringed by the recommendations of this report and I would be unhappy about it. I readily conceive the motives behind the report in proposing what is proposed—it is to improve the lot of the prisoner who is suffering from mental disorder—but some other administrative system could be devised to achieve that end without infringing what I consider to be a very basic and valuable principle.

The recommendations of the report are humane and are common sense. I welcome the new powers to the District Court. Quite recently I had occasion to defend a person who was unfit to plead charged with a summary offence and, technically speaking, there should have been a finding, the rather contradictory finding that Senator Cassidy has pointed out, of guilty but insane, but that was not open to the court. Rather rough justice had to be done in fairness to the person and through the humanity of the court but the procedure might not have been strictly in accordance with the law. So I welcome that change to remove any such anomalous positions.

I would be worried by the definition sections in the draft Bill. I do not know that they are altogether adequate. A definition which defines mental disorder as meaning mental illness or mental handicap seems to me to be a classic example of a circular definition and does not lead anywhere. The M'Naghten Rules, old and all as they are, have stood the test of time.

There should have been an attempt, in the drafting of this Bill, to be more precise as to what is meant by mental disorder. It excludes violent personality disorder. This is getting into an extremely difficult area of psychiatric medicine. I presume that the type of person intended to be covered by the term as suffering from violent personality disorder is that person we commonly called the psychopath. Undoubtedly, dealing with that particular person has posed immense problems for the State up to now, because psychiatric medicine has not recognised that the psychopath is a person who comes within their province. Up to now, we have had the situation where people suffering from that condition—if it can be described as a condition in a medical or clinical sense—have been imprisoned and have been extremely difficult prisoners to contend with because of their personalities. It was my experience that society dumps them, so to speak, into the prison service and the prison service did not have the resources, being essentially custodial in the first instance, though not exclusively so, to deal with these difficult personalities. Again, it was my experience that, when we asked the psychiatric services to deal with them, the answer, very frequently, was "These people are not psychiatric cases and consequently have no place in our hospitals or institutions".

I welcome the way in which the Bill proposes to deal with that major difficulty. The Bill proposes to set up a special institute, under the aegis of the Minister for Justice, to which these people will be committed. That is the perfect theoretical answer but I am afraid that, in terms of the financial and other resources necessary to provide it, having regard to the unfortunate way in which the country's finances have been run down, it will be a long time before the answer can be provided as suggested by the Bill. Certainly, an institution of that type is necessary to deal with these persons who are categorised as persons suffering from violent personality disorder.

I am worried about the quality of the definition when it comes to being applied in court. That a person suffering from violent personality disorder can stand trial and can be convicted is implicit in the section setting up the designated centres. What will be the position of persons of that type who come before a justice and the justice is not sure, nor is the medical practitioner sure, whether the particular ailment or disability constitutes mental disorder or constitutes violent personality disorder? If he proceeds to trial and conviction, various unfavourable legal consequences could result. The Bill suffers from a certain looseness in this regard. I make this point not to criticise the idea behind the report or the thinking behind the report but to criticise the way the report seeks to bring its ideas into reality.

The main difficulty at the moment is dealing with the type of person known as the psychopath. The prisons are not suitable institutions for dealing with them. They are very often disturbing and violent people within the prison system. There have been notorious instances where these people have been not just violent to others but have done immense damage to themselves. Yet, it is not possible to have them transferred to psychiatric institutions because the view is that they do not properly belong there. If some solution can be found, I will certainly welcome it.

It would be no harm to put on record that people who are suffering from psychiatrically recognised disability at the moment who are in custody are subject to the care of the medical services of the health board in whose area the prison is situated. When I was in office—and I have no doubt it is still the position—the range of medical services available for such persons were whatever services the health board's psychiatrists recommended and implemented. Neither the Department of Justice nor the prison service determined the range, quality or extent, of psychiatric services. There is widespread belief that they were fewer than those available to the members of the general public but that is not so. The services that were available for psychiatric cases were those deemed adequate and suitable by the professional psychiatrists of the health board in question. There were adequate clinics, both within the prison and to which outpatients who need treatment are taken regularly. There was then the closed institution in Dundrum for prisoners who needed institutional care for psychiatric reasons.

The Bill is a little vague and unduly hopeful when it speaks of remanding persons suffering from mental disorder which does not include violent personality disorder to what will essentially be open institutions. I have not read the Bill as closely as I should have liked, and may be wrong in my criticism but it seems that the Bill gives power, or proposes to take power, to confine persons after the end of their sentence, if they are certified to be suffering from mental disorder, without making any provision for them being kept in secure places. I have read the Bill rather quickly and I am subject to correction on this. The secure places are confined to persons who are suffering from violent personality disorder and that is a totally different category of person according to the definition section in the Bill. I am sure that is not intended but if it is a consequence it gets back to the rather imprecise drafting of the Bill.

I welcome the motivation behind the report. I welcome many of its recommendations but I must confess that I am less than happy with the Bill as drafted.

Minister of State at the Department of Justice (Mr. Doherty)

I wish to express my thanks to all the Senators for the words of welcome expressed to me on my first occasion here. I hope that I shall be here for a considerable time to listen to equally constructive remarks as have been made by the various speakers to this debate today.

The Minister and I are as anxious as anybody else, including the Senators who have spoken, to have firm decisions made on the implementation, or otherwise, of the proposed Criminal Justice (Mental Illness) Bill. However, the changes recommended by the committee and contained in the draft Bill are fundamental changes in the law relating to mentally ill or maladjusted persons who appear before the courts on criminal charges. The recommendations require careful consideration.

The draft Bill proposes to establish a review body and would also involve the setting up of a new psychiatric centre and units, or at least the adaptation of existing ones, to cater for the proposed new procedures. The financial implications are serious. There would also be the problem of finding suitable staff for the new institutions. Apart from these practical considerations, there are, as many Senators will have noticed, some changes proposed in what might be described as basic principles of our existing law. These changes, too, must be carefully studied. Even though the committee incorporated a draft Bill in the report which they felt would give effect to the recommendations, they made it clear at paragraph 3 of the report that their intention was not to give definite form to their recommendations but rather to enable the scope and effect of those recommendations to be viewed and appraised as components of a legislative pattern.

The report was published on 25 January 1980 and copies of it may be obtained from the Government Publications Sales Office, GPO Arcade, at £1.20.

Mrs. Robinson

Could the Minister give an indication of when it was presented to the Government?

Mr. Doherty

An indication of when it was published?

Mrs. Robinson

When it was submitted to the Government?

Mr. Doherty

I am not in a position to make that information available at present.

The Minister and I are concerned that any person or organisation that may be interested should have ample opportunity to submit observations or recommendations in relation to the report before putting definite proposals to the Government. I think that the answer to the Senator is in that.

It is also clear from where the report is obtainable that we would like all the vested interests and all the interested parties outside this House and outside Departments to indicate to the Government their observations. In fact, no observations have yet been received by my Department, other than from other Departments and from some members of the Judiciary who were expressly consulted.

The Minister and I welcome this opportunity for Senators to give their views on the proposals. I assure the House that any views put forward here will be taken into account by the Minister and myself in relation to submissions made to the Government. This is a very important matter which affects one of the less fortunate sections of our community, and it deserves our full and sympathetic consideration. It is important that any proposed legislation must, in so far as is humanly possible, provide for the greatest possible protections in this area. Senator Robinson asked what was the position in relation to mental treatment generally. The fact is that the Minister for Health and his predecessor. The Taoiseach, announced that it is hoped to circulate a Bill dealing with this matter in this session.

Professor Keating

I should like to add my voice to the voices of other Senators who have already welcomed the Minister of State. I was extremely interested, just now, when the Minister said the report was published on 25 January 1980. He was reading from a prepared text. Senator Robinson asked him when did the Government receive the report and he said he was not in a position to provide that information. He has two advisers sitting very close to him and apparently they have still not provided him with the information.

I want to repeat the question. I also want to make some observations about this date obscurity because, putting it bluntly, it has rather a bad smell. The publication date is 25 January 1980. The copy I have of this report bears no letter which would be normal when presenting it to the Minister or Ministers—it is inter-departmental—and bears no date. It is a parliamentary paper with a number giving it the official status of a parliamentary paper, but no date. I wonder if it is legal to produce a paper like that without a date. Senator Robinson's copy has a little piece of paper stuck on to the same page where the members of the committee are listed, and what was originally typed and then xeroxed saying November 1978 has been stuck on.

Mrs. Robinson

I hasten to add, I did not stick it on. It came that way.

Professor Keating

Some of them have a date; some do not have a date. The Minister now has a little warning, and he may have an opportunity to clarify the position or his advisers may be able to tell him. My suspicion is that, because of the very oddness of the lack of a covering letter being published, and the lack of a date, the Government have been in possession of this for a considerable time. Perhaps the failure to provide us with a date, not of publication, but of receipt by the relevant Minister, or by the Government, or whatever date the Minister chose to furnish us with when the document was transmitted from the committee shows it would be a useful date to have.

It is also a third interim report. Some comment was made on the fact that it is brief, but it is a third interim report from a very distinguished committee, very widely representative indeed. At least one member of the Minister's own Department is a participant in it. I heard the Minister say the matter needs careful consideration, that the financial implications are serious, that changes in the basic principles of our existing law must be carefully studied. All true, all laudable sentiments, but how long does careful study take? There is a very interesting—and to me as a layman and someone who does not admire the law or the legal professions very much—a very shocking second schedule on page 63 of the report which lists the enactments which would be repealed if this draft Bill were to become law.

Under the heading "Short Title or Subject" we see "Criminal Lunatics (1880)", "Lunacy (Ireland) Act, 1821", "Lunacy (Ireland) Act, 1837", "Central Criminal Lunatic Asylums (Ireland) Act, 1845", "Lunatic Asylums (Ireland) Act, 1875", "Criminal Lunatics Act, 18-84", "Lunacy (Ireland) Act, 1901". The reason I read out those dates is to indicate that we have a serious situation which is really long overdue for fundamental reform. This is not a trivial corner of the law, and, indeed, it is expensive in relation to what is happening currently.

Of course, the financial implications of what is suggested in this draft Bill are serious. It seems to me that, at this moment, the cost of institutionalisation on the level that it exists without treatment is absolutely enormous. I do not now propose to go into the matter of prison reform, but it seems to me that putting into prisons persons who are not insane, but who are mentally disturbed, is, firstly, a very awful thing but, secondly, a very expensive thing because, if they are not seriously disturbed when they go in, they will be when they come out.

Mrs. Robinson

If they come out.

Professor Keating

So it is already expensive. The way our economists and politicians and others function is to look at things on the basis of departmental Estimates. The total cost of the existing situation in our society is enormous. The cost for an institution to make some bit of progress is quantifiable and therefore terrifying, but what about the total cost of what is currently happening? Someone mentioned the ramming of patrol cars—£30,000 in one street in one night; that is enormous too. It is not a situation we can brush away.

Basically the situation we are facing is that the law is the law going back to 1800, and to phrases like "criminal lunatics". I am not a lawyer but to me that is a contradiction in terms. If you are a criminal you cannot be a lunatic. If you are a lunatic you cannot be a criminal. It is as dotty as that, and that sort of terminology goes on for a long time afterwards. The law has not progressed, while knowledge and science have progressed immensely. Now they are out of step, very seriously out of step and it is very expensive. I am not suggesting that there is a science of mind yet. I think there will be soon because there are computers.

We must not brush away as nothing the vast advances both in knowledge and in humane attitudes of the past, say, 140 years. Our law does not reflect them, and yet what is happening now is wasteful of money. Who puts in the charges if you are making a balance sheet? What is it costing the courts to do things that they should not be seized of in the first place? They are taking up a lot of the time of the courts. In one way or another we are all involved in society around us. Some of us are involved as ex-Deputies with our constituencies, and so on.

We all have a great deal of contact with society at large. Do we not know the number of persons committing crimes, either to get themselves their next fix because they are hooked on drugs or because they are alcoholics? Any real quantification of this suggests that this is not a matter that can be put off. It is very urgent, and it is quite a large issue.

That is why I must say I was shattered by what Senator Conroy said. A lawyer, a psychiatrist, a philosopher or, indeed, the one I would pick out as best equipped, a neuro-physiologist, who sets out to provide you with a good definition of "mind" is in desperate difficulties. Insanity is the reverse of sanity. If we try to define sanity we are into a very difficult area. I hope I misunderstood what Senator Conroy was saying but it sounded to me as if he were saying it is desperately difficult and imprecise and therefore you do not legislate.

The M'Naghten Rules, now nearly 140 years old, were rough justice at the time. To suggest that they have stood the test and that we cannot do better is a piece of dottiness in my layman's view. I understand that, whatever the law says, enlightened and humane and compassionate judges have, in fact, moved those definitions forward enormously. I do not pretend this is an easy area. The people who drafted this do not themselves say that this is a final definitive text, though we ought to be extremely glad that that sort of spectrum of people are available to offer a draft. Who is a more astute person to draw up a draft than Vincent Grogan? Who is more experienced and compassionate to judge than the judge of the Supreme Court, Mr. Justice Henchy? These are distinguished persons in psychiatry in the Government service, even though the draft Bill may not be the final, definitive, perfect draft. The job of the Oireachtas ultimately is to tease these things out.

We are not now debating the Bill and I do not propose to get into the small print of it. It is for the Oireachtas to put a final imprimatur on it, or to amend it if weaknesses are revealed. Sometimes in our wisdom here—our wisdom being our lack of wisdom, our wisdom being our commonsense, our wisdom being our wide experience of ordinary life—we can see something these great experts do not see, but that is a very distinguished committee.

One of the nice things about the Seanad is that I heard two people from Fianna Fáil in almost diametric disagreement with each other and, of the two, it was Senator Cassidy I agreed with and not Senator Conroy. Then I heard very substantial agreement between Senator Cooney and Senator Conroy on opposite sides. It is a plus for the Seanad that we are not breaking up on party lines but, please let us not plead difficulty as a basis for inactivity.

No one denies the difficulty. First, the situation is awful. Secondly, it is unjust. Thirdly, it is wildly expensive and, fourthly, it is important not because the total numbers involved are so great but because of our whole attitude to ancient, archaic and cruel laws full of the ideas of retribution and punishment which are irrelevant in the present day. All we want and, indeed, all any law can be is a best approximation in the light of current knowledge. That is difficult to achieve on the frontier between mental disturbance and mental normality. No one denies for a moment—we would have consensus on all sides on this—that that difficulty has never been a valid reason for failure to act. The need to act is overwhelming and the penalty we pay for non-activity is very large. It would be cheaper to act resolutely, though not in terms of the Estimates for the Department of Justice or the Department of Health but in terms of total social cost.

There is one point which appeals to my particular hang-ups to which I want to make reference. I refer to page 7 of the report, paragraph 15. We are concerned with persons like addicts to alcohol or other drugs who need a fix and who do various things in pursuit of their fix. Some of them are not criminals but may easily become criminals. It seems to me that many Senators made assumptions about institutionalisation, whether it was in a place for psychopaths, or in a special institution to contain the extremely violent personality, or whether it was for treatment of the mildly disturbed and rehabilitated person. Paragraph 15 on page 7 reads:

The elaboration in the Bill of the functions of the specified institutions for those suffering from mental disorder or violent personality disorder is not intended to imply that noninstitutional treatment may not in many cases be the better or the proper way of dealing with an offender's condition.

I want to make a plea in terms of good results, cost and, indeed, compassion and, in so far as I understand them, the thoughts of persons deeply involved professionally in treatment, its effectiveness and its cost-effectiveness. Non-institutionalisation may be the best way possible. I thought the debate was making assumptions about different sorts of institutions.

We ought to have some clarification about dates. We are entitled to that. I want to repeat a plea for prompt action. If this draft report from these very expert people is not perfect, surely it does 90 per cent of the work on a Bill which would commend itself to all sides of the House? Difficulties are not sufficient reasons for inactivity.

Mícheál Cranitch

Is é an chéad dualgas atá orm inniú ná fáilte a chur roimh an Aire Stáit, Seán Doherty. Tá árd-áthas orainn é a fheicsint anseo. Beidh ana-chuid cúram air san Roinn ina bhfuil sé agus is é a deirimíd ná, is maith ann é agus tiocfaidh toradh maith air a chuid oibre.

I should like to make a few remarks on this report, interim though it may be. It is about the best laid out report on any subject that I have come across. In Part I we have five pages of very readable and very clear narrative. In Part II we have the Bill they propose, with excellent footnotes and explanatory notes. It makes very easy reading for those of us who are not blessed with a legal training or a legal education.

Those who framed the report deserve very great credit. They took a very compassionate view of the whole problem. That is what we would expect in a Christian country. As I was reading the report my mind went straight to our own language where we have such very sympathetic Christian, loving phrases to describe persons who are suffering from any form of mental illness. We refer to such a person always as "duine le Dia"—one of God's own people. We try to make an excuse for persons who, as a result of their mental failings, speak what ordinarily would be called nonsense. We simply say "Ciall agus míchiall dís nach ngabhann le chéile. Is dóigh leis an bhfear gan chiall gurb é féin fear na céille". There is a wealth of wisdom there.

On page 14 of the report in the explanatory note we read:

The definitions distinguish between mental disorder, which is an illness or defect of the mind, and violent personality disorder, which, as its name implies, is disorder or disability of personality, persistent in its character and manifesting itself in abnormally violent or aggressive conduct.

Psychiatrists distinguish between mental disorder and personality disorder. The latter, of itself, will not exonerate a person from criminal responsibility, if he is shown to have the guilty intent mens rea of which he is capable. If his condition is persistently violent, his own safety and the safety of society require that special measures be taken for his custody and care.

I am afraid that a person not versed in these things, or not having experience of them, would be inclined to think that most mental disorders or illnesses can be put into two categories, one of mental disorder and the other of violent personality disorder.

All through my life I have been teaching, educating boys and girls, young men and young women. I have put thousands of them through my hands. It was inevitable, indeed, that I would come up against many cases where there was a problem of mental illness in some shape or form. One of the things I learned from experience was that there are so many varying degrees of illnesses that, in our present state of knowledge of both disease and language, it would be impossible to define these degrees. Another thing I learned was that you just cannot measure mental disorder or mental illness.

Physical illness? Yes, you can do that. A person is taken to hospital. All the doctors must agree, if they take his temperature, that his temperature is at such a point. The same thing applies to his blood pressure and his heart beat. You can measure all these things. What about mental illnesses? It is very hard for psychiatrists to say that a person is at a certain point. Few of them will agree on these matters.

My own method of dealing with such disorders was to bring experience, patience, the love of the parents and the family, and the love we had for the children ourselves, to bear on the problem, to try to isolate and identify the cause of the problem. By that means we solved most of the problems. We did not solve them all because, coming back to the question of measuring mental illness, very often it was very difficult, in fact impossible, for us in our present state of knowledge to be able to say when the mental illness ended and the mens rea began. That is fundamental to the problem we have here.

I have commended those who framed this report. It is a splendid report. It is an excellent jumping-off ground. Their explanatory notes, and so on, are excellent. We must acquire a great deal of knowledge before we decide on what the best way of treating these problems is. It is an extremely difficult area. I should like to see an expanded report and I should like every person who is interested in the question of mental illness to read it. There is more mental illness now than we ever had before as a result of the opulent society we are lining in.

It is a huge problem and there is the great danger that, in our present distressed state, socially and otherwise, if we ease off too much on these things, we will have highly intelligent criminals, criminals with a very high intelligence quotient, with no sense of responsibility, no conscience, who will use every trick they can think of to defy the law and who have mens rea while acting as if they had some sort of mental disorder. That could be the great problem before us. I commend our Roman friends of long ago who gave us the best advice of all, mens sana in corpore sano.

Mrs. Robinson

Before I conclude by replying to the debate, would the Minister of State like to avail of this opportunity to tell us when the report was received by the Government?

Mr. Doherty

It was received by the Government in November of 1978. There was never any obligation or undertaking to publish the report but it was published at the express wish of the chairman.

Mrs. Robinson

Thank you.

Mr. Doherty

I would also like to add that whatever was stuck on should have been stuck on.

Mrs. Robinson

I should like to thank the Minister of State for putting the information on the record that the report was received by the Government in November 1978. I certainly—and I am sure all other Senators do—welcome the fact that it was published, even if there was a certain delay in publication. The Minister made the point that it is important to receive reactions, not only when a motion is tabled and debated in this House, but also from people in the community, from lawyers, from doctors and also from lay people who are concerned. That sense of concern was present in each of the contributions here this afternoon. The debate has been a useful one because the motion refers to the report and urges the tabling of the draft Bill which was annexed to it.

We have spent time discussing the recommendations of the report and, in some instances, referring to specific provisions of the Bill. At one point Senator Keating made the point that we were not discussing the Bill, that the report was not intended to be a final blueprint but rather a helpful aid to lessen the time which would elapse before the Government would introduce legislation. I had a regret that we were not discussing the text of a Bill because I believe—and I sensed this was felt by Senators on both sides of the House—that the matter is an extremely urgent one, that as a society we cannot tolerate the idea of persons being abused by our own procedures and coming wrongly before the criminal courts because we have not devised the proper method and approach to help them, and being treated as prisoners rather than as patients because we tolerate that in our institutional system and laws.

I was asked whether it is proposed to put this motion to a vote since it calls for the tabling of the Criminal Justice (Mental Illness) Bill. It is not proposed to put it to a vote. We hope the motion may be agreed by the Seanad as a method of increasing the urgency at Government level. It would be regrettable after the kind of debate we have had, where there has been a good deal of open-mindedness and commitment by the Seantors who participated, to put it to a vote and therefore risk a hardening of attitudes and a polarisation of political approaches to the subject. That certainly is not the intent of the Labour Senators who tabled the motion. It was rather to highlight this urgent and important area, to highlight the need for a change of approach, the long overdue need for a change of approach.

Senator Keating referred to the list of statutes which are still part of Irish law which would be repealed, or very substantially modified, by the proposals in the draft Bill attached to the report.

I agree with the Senators who emphasised the complexity of some of the issues involved. We are concerned about a most difficult area where persons come before the criminal courts charged with offences, and the responsibility then is: how are they to be dealt with? What is to happen? Personally I would like to re-emphasise the importance of not focusing totally or even primarily on institutional treatment but on having the resources in the community and putting the emphasis on non-institutional treatment and care. I do not diminish the complexity or the difficulty of definition and of the actual process of follow-up when a person has been assessed from a medical point of view and found to be unfit to stand trial or somebody who should not be treated as a prisoner but should be categorised as a patient and given medical treatment.

This is a very complex area but in my view we cannot postpone introducing legislation to bring about basic reforms because of the difficulty and it was put very eloquently by Senator Keating when he said: "Please let us not plead difficulty as a basis for inactivity". That was, regretfully, a substantial part of the contributions of both Senator Conroy, who has a very considerable medical expertise in this area, and Senator Cooney, who has a considerable legal expertise. Perhaps we want less expertise and more commitment to the need to offer a help and a support from our society to the human beings concerned. Sometimes it is the non-expert who gets to the heart of the matter.

Senator Harte and one or two other Senators described being in court when somebody comes before the criminal court who should not be there and they know that this is not only degrading and oppressive of the person who comes before the court, it is degrading of all of us. It is degrading of the judge who is in a position where under the present situation he cannot call for a medical report and have the person assessed professionally and given the follow-up of care and the appropriate order in the circumstances.

Once this problem has been identified as it has been identified in this report, once recommendations have been made as to a way to deal with it, then if there is any sense of priorities in a society which claims to be civilised and humane, this should be top of the order of priorities. We are depriving persons of the most basic needs and rights as individuals. We are doing it because of the system we have created and because that system does not conform to modern science, modern knowledge and modern approach which is more enlightened than the old days when you could have Criminal Lunatic Acts and a criminal lunatic asylum as part of the defensive reaction of a society which did not understand the motivation and was not in the position that we are in to provide for care, treatment and identification.

Senator Cassidy in the course of her very interesting contribution referred to the fact that a number of young people who come before the courts may have problems of mental illness or handicap. That is a very important part of the problem. It is a very grave situation at the moment that because of the lack of the appropriate framework for treatment there is a very real danger, which is of great concern to lawyers who are involved or who have seen what has happened, that, for example, children sent to Loughan House in Cavan may have very serious mental disorder problems. It is quite wrong that those individual children be sent to Loughan House as a place to cope with that and it is very wrong for the other children who are there and, indeed, for the prison officers into whose care they are placed. It should be a top priority to ensure that we do not have blunt and crude methods of dealing with persons who are involved in anti-social behaviour so that we can identify very precisely and very specifically the needs of those persons.

We are not just talking about a need for particular care in dealing with young people. When we are talking about persons who come before the criminal courts, whether or not they are persons with mental illness or disorder problems, we can be sure that the vast majority of them will be in a low socio-economic group. They will be from poor and deprived backgrounds. It is that deprivation combined with the handicap of mental illness or disorder which demands from us as a society that we treat with the utmost priority the way in which the courts assert their jurisdiction and that our society provides centres and expert medical care in cases where persons should be treated as patients rather than as prisoners.

I failed to follow the line of argument put forward by Senator Cooney when he tried to suggest that there was somehow a basic departure from fundamental constitutional principles. I find it difficult to believe that Mr. Justice Séamus Henchy, who has a considerable reputation as a constitutional lawyer and judge of the Supreme Court, would embark on proposals which were somehow fundamentally undermining the checks and balances in our Constitution. Senator Cooney seemed to be missing the basic point behind most of the proposals in this report that there would be a distinction drawn between those who were appropriately prisoners, to be dealt with in the normal way by the courts, and those who would be patients, to be dealt with no longer in the same way within the jurisdiction of the criminal courts but, rather, to be placed in appropriate care in designated psychiatric centres, under the monitoring and review of the mental care review body. This thrust is well summed up at paragraph 11 of the report where it states:

The implementation of the terms of the Bill will mean that many persons who would otherwise be detained in, or passed through, a prison or other place of detention under the control of the Department of Justice will in future be detained in a designated centre approved by the Minister for Health.

It is that thrust which we are very anxious to see implemented. Although I join with the other Senators who welcomed the Minister of State on his first visit as a Minister to this House, I felt a certain regret when I saw him sitting in that seat that it was not either the Minister for Health or the Minister of State at the Department of Health because I believe this would indicate a genuine psychological commitment on the part of the Government to move the main emphasis away from justice, the criminal law and the criminal process and in the direction of the focus of this Bill so that it be mainly in the jurisdiction of the Minister for Health. A special category person with psychopathic aggressive disorders and the need for special units would rightly remain within the jurisdiction of the Minister for Justice. The Minister would certainly have a role to play and a voice in appointing to the mental care review body.

A great deal of the jurisdiction and responsibility for the care of persons who because of their mental disorder need treatment, either of an institutional sort in the designated centres or outpatient treatment, is properly—and in other countries is already—within the jurisdiction and competence of the Minister for Health. That is not to try to avoid or in any way disregard the points made by a number of Senators about ensuring that the terms and intent of the Bill would not be so construed as to give a loophole or some escape to persons who ought not come within the terms of that Bill.

If there is a system established which requires medical advice at a very early stage on the fitness of persons to be before the courts or their responsibility for the acts with which they are charged, it is much less likely that there will be abuse within the system, whether it is the abuse of treating somebody as a prisoner when he ought to be afforded the help needed by a patient or whether it is somebody trying to avoid the responsibility for his actions by claiming that he is not a fit person to stand trial. It is much more likely that any abuse would be avoided if we established the kind of system which is recommended in the Bill attached to this report.

I would like to thank the Senators who contributed and showed the concern they feel for the urgent need for reform in this area. I still have hope that the Seanad can agree to this motion so that we can indicate collectively and in a non-party sense to the Minister and to the Government that this is something which all of us feel is urgent, that we do not regard the Bill attached as the final blueprint but we do regard it as the work of a very responsible and very prestigious committee with, as Senator Keating said, at least 90 per cent of the recommendations being the kind of things we would like to see and the rest being a matter for further detailed consideration but certainly no further loss of time.

I welcome the contributions of Senators and the presence of the Minister here today. I would have liked some further indication of a more precise follow-up by the Minister. If there are still outstanding problems, is there a departmental committee sitting on them at the moment? When will recommendations come before the Cabinet? Perhaps we can hope that the debate here has accelerated this process.

Mr. Doherty

As I have stated, observations have only just been received by my Department from other Departments, members of the Judiciary and, of course, Members of the Seanad, here today. As referred to by Senator Robinson, there are also other medical and legal opinions that might be worth hearing. Agreement would be forthcoming if Seanad Éireann were to note the report on Treatment and Care of Persons Suffering from Mental Disorder who appear before the Courts on Criminal Charges published in January 1980, but in the interests of good legislation I would consider it premature to call for an immediate introduction of the Bill in the absence of the other observations.

Mrs. Robinson

Would the Minister be prepared to accept, instead of the reference to the Criminal Justice (Mental Illness) Bill annexed thereto, "the early introduction of urgent legislation"? The matter has been under consideration by the Government since November 1978 and I think it is fair to look for urgent legislation.

Mr. Doherty

The Government acknowledge that position.

An Cathaoirleach

It is rather too late to introduce amendments at this stage.

Mr. Cooney

The House is agreed. Let us not be bound by red tape.

Mr. Doherty

The Government have not as yet examined the proposed legislation and it would be premature to present to the Government anything that is not concrete or constructive.

Mrs. Robinson

I do not want to get sharp at this stage but there has been almost a year-and-a-half to do so.

Mr. Doherty

It has been debated here today and it certainly invites outside debate. At least that is worth waiting for.

An Cathaoirleach

It is too late to introduce amendments and we have to keep to Standing Orders. Is the motion agreed?

Mr. O'Brien

Would Senator Robinson not withdraw the second part of the motion? Could she not be allowed to do that?

Mrs. Robinson

I am prepared to withdraw the second part of the motion calling for the immediate introduction of the Criminal Justice (Mental Illness) Bill in view of the statement made by the Minister and, as I understand it, a Government commitment to move as a matter of urgency on appropriate legislation.

Mr. W. Ryan

I move the following amendment:

To delete all words after January 1980.

Amendment agreed to.

Motion, as amended, agreed to.

Seanad Éireann debate - Wednesday, 16 Apr 1980

Mental Illness: Motion.

Seanad Éireann debate -
Wednesday, 16 Apr 1980