Criminal Law (Insanity) Bill 2002: Committee Stage (Resumed).


Amendment No. 2 is in the name of Senator Henry. Amendments Nos. 3 and 4 are alternatives, and amendments Nos. 17, 137 and 138 are related and may be discussed with amendment No. 2. Is that agreed? Agreed.

I move amendment No. 2:

In page 4, subsection (1), to delete lines 6 to 8 and substitute the following definition:

"‘mental disorder' has the meaning ascribed to mental disorder within the meaning of the Mental Health Act 2001;".

While the Bill may be short it is very important. As I said when we began the debate, it repeals an Act, which is more than 120 years old and we should do our best to ensure it complies with modern terminology. We put considerable work into the Mental Health Act during its passage through both Houses of the Oireachtas to ensure this happened. The Bill before us deals with the same kind of people dealt with under the Mental Health Act except that they have or are suspected of having committed crimes. We should try to afford them the same rights and respect that apply to ordinary psychiatric patients under the Mental Health Act.

The definition in the Bill is rather old-fashioned. It describes "mental disorder" as including "mental illness, mental handicap [a phrase now rarely used], dementia or any disease of the mind but does not include intoxication". My amendments seek to mirror as far as possible what is contained in the Mental Health Act so we do not spend considerable time deciding what is mental disorder as a result of having different definitions in two Acts. The definition of mental disorder in the Mental Health Act 2001 is very good and comprehensive and states it means "mental illness, severe dementia or significant intellectual disability". The change in terminology is worth considering. The section of the Mental Health Act continues "because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons". This reflects exactly what we want in the Bill before us.

The section continues "because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission". This again is exactly what we want in removing the persons from the courts to a therapeutic unit. The section then states "the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent". This again is what we want because if at all possible we want to return them to a state of mental normality.

The section finally states:

"mental illness" means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;

The reference to altering their "thinking, perceiving, emotion or judgment" is extraordinarily important when we come to consider whether people are unable or perhaps incapable of knowing the effects of their actions. The section describes severe dementia as "a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression". This again forms a very important part of the Bill before us.

The section describes significant intellectual disability, a term much more widely used than mental handicap, as "a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person". This is precisely the sort of person with diminished responsibility addressed by the Bill before us. Rather than having "mental disorder" described as it is in the Bill, we should use the definition already passed by this House and in use in thoseparts of the Mental Health Act already implemented.

My amendments Nos. 137 and 138 seek to use the term "mental disorder" rather than "insanity" in the Title of the Bill. While I have not proposed replacing it everywhere, this should be done. The word "insanity" could be described as stigmatising people whereas "mental disorder" is the term used in medical textbooks these days in place of describing people as insane. Just because we are updating the Trial of Lunatics Act, there is no need to insert a word which is already out of date and we should use a term in common parlance in the psychiatric profession.

I support Senator Henry's amendments and I hope the Minister will be able to accept them. During the passage of the Mental Health Act, we spent considerable time fashioning the definition of mental disorder, which meets the requirements of modern practitioners. There is no point in reinventing the wheel if it can be done by cross-referencing to an existing definition. I suggest it would be more convenient for the expert witnesses called to the courts to deal with these matters in terms to which they are accustomed. Like Senator Henry, I believe it would be gracious to use the term "mental disorder" rather than "insanity" in the Title. At least the Minister has saved us from "lunacy". However there is a slightly derogatory overtone in the term "insanity".

I wish to speak to my amendment No. 4. I support Senator Henry's amendments which seek that the Bill use the modern term "mental disorder" rather than "insanity". The Bill should be updated in every possible given that many years have passed since it was first drafted. It needs to be modernised.

The definition of mental disorder is central to the legislation. I am concerned that the definition as provided for in the Bill is a little ambiguous. Perhaps that is deliberate but I fear the definition in its current form will inevitably lead to judges determining their own meaning of the words "mental disorder". We are the people who make the legislation and we must ensure, when drafting, amending and enacting it, that our intentions are clear. In defining something we should be clear about what we want. While the definition of "mental disorder" refers to intoxication, it does not deal with a state of mind induced by intoxication. I would like the Minister to consider my amendment with a view to accepting it.

I move amendments Nos. 3 and 137 and wish to speak on the related amendments.

The Senator may not move any of her amendments at this stage but may speak on them.

Amendment No. 3 seeks to delete the word "disease" and substitute it with the words "other disease or medical condition". We tabled this amendment because we believe the wording in terms of "disease" is too limited. We are seeking to include other conditions such as personality disorders which are not diseases. I would like the Minister to clarify that point.

Much of the commentary on the Bill by experts in law and psychiatry state that it is not clear whether personality disorders are covered by the current definition. This issue could come into play in terms of a court's adjudication on a matter. Senator Henry has suggested we amend the definition to correspond to the definition used in the Mental Health Act 2001. A commentator in The Irish Times, Dr. Darius Whelan, stated that the Bill is unclear in terms of whether it includes personality disorders. The Mental Health Act 2001 states that a person cannot be detained under that Act solely because of a personality disorder. The Bill specifically states that a person found not guilty by reason of insanity can only be detained if he or she has a mental disorder within the meaning of the 2001 Act. Dr. Whelan points out that it is unclear whether the section of the Mental Health Act 2001 prohibiting detention based on personality disorder alone impacts on a mental disorder within the meaning of the 2001 Act. This issue requires further consideration by the Minister. Perhaps he will comment on the proposed amendments in terms of how broad he feels the section is as currently worded and the effect of our amendments in that regard.

Dr. Whelan, in his article in The Irish Times, mentioned that in 1996 the current Minister for Arts, Sports and Tourism, Deputy O’Donoghue, included personality disorders in his definition in a Fianna Fáil Private Members’ Bill. As regards Senator Henry’s proposal, many people have commented that the Mental Health Act 2001 is progressive legislation, some of the features of which are imported into this Bill. However, many others are not. There is concern about how one treats the people concerned in that while they have rights under the Mental Health Act in terms of, for example, the reasons they are being detained and so on, they do not have the same rights under this legislation.

Amendments Nos. 137 and 138 deal with the substitution of the word "insanity" with the words "mental disorder". I agree with those who say we should reconsider the use of the word "insanity" and should instead use the term "mental disorder". Many people have commented on the use of that old fashioned term which conjures up certain pictures in people's minds, in particular that such a reference could impact on a jury's decision in a trial. The use of the term "mental disorder" is modern. Other jurisdictions, such as Canada, use the term "mental impairment". I ask the Minister to comment on the issues I have raised.

There has been much commentary on the Bill by people with a great deal of expertise in this area, including Senator Henry. An article in The Irish Times by Dr. Justin Brophy, chairman of the Irish Psychiatric Association, raised concerns about the lack of proper consultation on the Bill by the Minister and Government. Perhaps the Minister will inform the House if there has been further consultation on the Bill with interested bodies since the publication of that article, which was written around the time of the Second Stage debate. If so, has he taken on board any of their suggestions?

I appreciate the reasoning behind Senator Henry's amendment which proposes the alignment of mental disorder for the purpose of this Bill with that of the Mental Health Act 2001. Although this issue has been the subject of much public debate, I profoundly disagree with the proposition that there should be an alignment. It would not be helpful, constructive or enlightening. I hope that does not sound too pugnacious but I do not believe there should be an alignment between the two.

The Mental Health Act 2001 has a particular purpose, which is to govern the circumstances in which people can or cannot be, among other things, admitted to psychiatric institutions against their wishes and so on — involuntary detention — and to set a framework for the treatment of patients with mental illnesses. The Criminal Law (Insanity) Bill 2002 has a different purpose — to establish a workable template for decisions by courts that people are to be excused criminal responsibility in certain circumstances and to deal with other issues such as inability to plead and so on.

I do not believe, even on a first principle basis, that there should be an alignment between the two sets of underlying definitions for either statute. There is no necessity to align them. I do not believe — this is a particularly important point — that decisions in terms of involuntary admissions to hospitals and judicial decisions about the impropriety in that regard should have necessary spillover effects into the law of criminal responsibility. Likewise, I do not believe decisions in the criminal courts as to the meaning of a particular matter should have a spillover effect on the treatment of patients who have nothing to do with the criminal law. If one includes the same definition in both statutes and if a particular judge in a criminal trial states his definition of what the law means, if that is a matter of decided law, then the spillover effect, in terms of mental treatment, will be that what a criminal law judge decided in a particular case about the meaning of a particular definition is the law of the land and vice versa. This is not some thought that has occurred to me at random, because the issue of whether the two Acts should be made to coincide in their definitional basis — I hope that I am not being misleading — was one of questions which held up this legislation for so long. There was great interplay between the Department of Health and Children, the Department of Justice, Equality and Law Reform, the Office of the Attorney General and the Cabinet for a very long time. We must ask ourselves whether we should handcuff the two Acts together so that a decision made in a criminal trial interpreting the definition of mental disorder is a decision on the self-same words which will apply regarding future civil law decisions on whether a person should be detained against his or her wishes in a mental hospital. That is a fundamental question for us to address.

Senator Tuffy asked whether we had been unmindful of what the College of Psychiatrists had said; we have not. However, we ask ourselves why the definition should be the same for the two purposes if the consequence is that decisions made in a criminal case thereafter affect the administration of civil law regarding the treatment and detention of patients in cases that have nothing to do with criminal behaviour. I will not dismiss the argument, but it is by no means clear to me that it is desirable to do so. There are many reasons in my mind that make it undesirable to marry the two concepts so closely that a decision in one area necessarily means a collateral decision for the other purpose and that a judge, in charging a jury on the meaning of this section of this Act, is handing down an authoritative decision to bind the psychiatric profession regarding the involuntary detention of people under mental treatment law. From that point of view, perhaps I might put it like this without being unduly pugnacious, why would one consciously set out to procure a situation whereby a decision in the context of criminal law had those consequences for the day-to-day administration of the civil law of mental health? Why would one want to do that? Why would one want a judge contemplating whether an individual had had his or her mental state properly dealt with under the Mental Treatment Act 1961 to make a decision that would spill over into criminal law?

Let us consider section 3 of the Mental Health Act 2001. I fully concede, as Senators Maurice Hayes and Henry have said, that this House spent a great deal of time thinking about those issues, and I pay tribute to it. The definition which the two Houses of the Oireachtas produced is:

3.—(1) In this Act "mental disorder" means mental illness, severe dementia or significant intellectual disability where——

(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons

Does that mean that, for criminal law purposes, that if a psychiatrist says on oath that he or she does not believe there was a serious likelihood of self-damage or damage to others the day before yesterday, a person cannot invoke the defence provided by the legislation that we are discussing today?

The second definition of mental disorder reads:

(b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.

How would it be relevant to the question of whether one was criminally responsible if one ought to have been admitted to a psychiatric institution, a psychiatrist who had carefully examined one ought to have arrived at that view or if doing so ought to have alleviated the condition from which one was suffering? Does that definition give any ease to the accused? That carefully worked-out definition is clearly designed to regulate involuntary admissions, but is it the test one really wants to lay down for someone in the dock who is pleading that mental disorder has diminished his or her sense of responsibility? It must fit into either (a) or (b), the first being that there is a serious likelihood of one's causing harm. Criminal law is not concerned with whether there was a serious likelihood but with the question of whether, in retrospect, harm was caused. It was entirely improbable that a mental condition should have led to this, but it did so. In other words, if one commits a crime and it was entirely improbable that one should have done so, does paragraph (a) come to one's assistance? If one is then driven back to paragraph (b) of the definition, which states that one's condition should be such as to justify one's reception in a mental institution of some kind and do one some good, is that something the accused wants to have set as a test for his or her lawyers to overcome in establishing that the particular act of which the person is accused amounted to one that arose from mental disorder?

Looking carefully at section 3 of the Mental Health Act 2001, one sees that it is crafted for a different purpose — that of taking protective decisions about people in circumstances fine-tuned to respecting their rights. People cannot be put into mental institutions if, for example, under paragraph (b), it would do them no good. One cannot simply incarcerate someone, not under that paragraph at any rate. Paragraph (a) is to do with self-harm and harm to others, but (b) is a matter of whether therapy would have a beneficial effect. That is frankly irrelevant to whether one should be convicted or acquitted on the grounds of one's mental state.

I therefore believe that the long process — it took approximately ten years — of debate between the two Departments on whether they should harness those two horses to the same definitional wagon was correct in deciding that there should be no coincidence. One can see that there are at least two sides to the argument. Does one want the criteria that judge one's admission to a mental hospital against one's wishes, with which section 3 is concerned, to be the self-same criteria which determine whether one should be acquitted? Crafted as they are, their purpose is to safeguard the rights of individuals and to ensure that unnecessary committals do not take place. I have endless admiration for this definition in the Mental Health Act 2001, that people's rights could not be abrogated and they could not be confined to mental institutions unless there was a serious likelihood they would damage themselves or others; or alternatively, they were suffering from a disease or condition of the mind which required them to be hospitalised and where the hospitalisation would do some good.

I do not believe that is a set of criteria by which the criminal law should be administered. Neither do I believe that these issues — it is perfectly reasonable that they should arise in the context of an involuntary admission and other purposes — should gauge whether people may be judged guilty or innocent on the ground of mental disorder or whatever. It would be a mistake to harness these two concepts together because this could give rise to a situation where a decision made in a criminal court as to the joint definition of the term "mental disorder" or whatever, which is common to two statutes, would have a spillover effect. Some judge considering whether a person should or should not be admitted against his or her wishes to a mental institution would come to findings as to the meaning of the definition under the Mental Health Act 2001, which would have serious implications for the administration of the criminal law on insanity, as it is termed, and vice versa.

A judge, some afternoon in the Four Courts in the middle of a criminal trial, would come to a reasoned analysis of the definition, which was put there for a different purpose and say, "It means X and it does not mean Y," in circumstances where psychiatrists would query why he or she had opted for that particular definition and say in effect: "This is wholly unsuitable for our case and for our purposes and for admitting people to hospitals." They would claim the judge's decision was not in accordance with best psychiatric practice for that purpose.

In short, I do not see why the two should be brought together because they are different concepts. One is a definition of mental disorder which is calibrated and circumscribed and stated in terms to do with the efficacy of mental health treatment, on the one hand, or, on the other, preservation from self-harm or harm to others. A simple example would be some kind of kleptomania condition. Paragraph (a) is no use because “harm to others” does not arise; and paragraph (b) may or may not be of some significance because I do not know whether involuntary hospitalisation would or would not benefit a confirmed kleptomaniac, pyromaniac. or whatever. There are other issues too, such as hypoglycaemia and things like that, which might have nothing to do with all of this — paragraphs (a) and (b) may be no help at all — but which could be relevant to a criminal law case.

I have a strong view on this matter. I heard all the debate and I did not ignore it. I saw all the comments in The Irish Times and elsewhere and I got the letters from the colleges of psychiatrists, etc, but I remain unconvinced. We are talking about the view that two definitions should be aligned and made co-terminous so that they are the same for two different purposes. I remain unconvinced that this is a good idea. Others may disagree. One of the great aspects of legislation, something to which we all owe a duty as legislators, is not to have unintended consequences. One should avoid taking a decision in Seanad Éireann which later has trickle-down effects and which may prompt the question at some stage as to why it was done. I would argue that it was perfectly reasonable to craft the Mental Health Act 2001 in the way it was done. However, it is perfectly reasonable not to follow that definition for the purposes of criminal justice because it would risk making a mistake.

There is a division in the Dáil, but I will continue until somebody tells me the Government is going to collapse, or something.

On the issue of personality disorder, as mentioned by Senator Tuffy, it is clear in section 8(1) of the Mental Health Act 2001, which deals with mental disorder, that nothing shall be construed as authorising the involuntary admission to an approved centre by reason of the fact that the person is suffering from a personality disorder. It may or may not be that this is a tacit admission that mental disorder could include a personality disorder and, therefore, section 8 was necessary to take it out of that realm. Alternatively, the whole Act could be read as stating mental disorder under the 2001 Act was not intended to cover personality disorder.

We have crafted this legislation so as not to close the door and slam it in the face of personality disorder, in the way that section 8 of the other statute seems to do, for some purposes at any rate. The policy underpinning this Bill is quite deliberate. We heard all the criticisms and the points that were made. However, the policy effectively dictates that in the specific context of the Bill as a criminal law measure, the definition of the term "mental disorder" must, first and foremost, be framed against the existing position in common law. I am not prepared to move outside that framework. That is why the Bill does not propose to align the two definitions.

No singular or uniform solution has been found and adopted in the various common law countries on this issue, including those with which Ireland is closely connected. Our law firmly puts the matter within legal parameters and directly related to personal responsibility for one's actions. In this scenario medical evidence will be influential, but it is not decisive. That means that an accused person diagnosed as medically insane may fail to satisfy the criteria for legal insanity under criminal law and vice versa.. The Bill is designed to deal primarily with the criminal law aspect of the issue, once that aspect has been determined by the court, with the question of care and treatment.

I fully accept that a person may be incarcerated in a mental health institution on the basis of two different tests. However, it is not the end of the world if someone ends up in the same place by two different routes. To unify the routes, in terms of their intellectual content, would be fraught with difficulty. The matter is also complicated by the fact that legal and medical definitions which apply are not co-extensive. As I said on Second Stage, care was taken in the drafting of the Bill to ensure those matters were taken into account.

Particular attention was given to the fact that there is an overlap between the criminal justice elements and the Bill reflects the need to have regard to the care and treatment aspects of mental health legislation, in particular those matters which a court might take into account when considering the options available to it at the sentencing stage. That will arise following a determination by a court of a person's fitness to be tried, or a verdict of not guilty by reason of insanity. The determination will be based on the definition of mental disorder set out in this Bill. In other words, as a threshold test, a person must at least be suffering from a mental disorder as defined in section 1 of the Bill, meaning mental illness, mental handicap, dementia or any disease of the mind. However, for the special verdict under section 4 of the Bill, that mental disorder must additionally be defined as in section 4(1)(b) by the use of the words “the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of” etc. That appropriately emphasises the fact that the issue for the court is fundamentally one of legal responsibility, rather than simply a psychiatric diagnosis. The three limbs of the test, which are mutually exclusive, restate what the current text is in this jurisdiction.

Regarding amendment No. 3, the definition of mental disorder contained in the Bill is of fundamental importance and is tightly worded. To amend it as suggested would introduce uncertainty into an area where there can be no room for doubt. A reference to "any other disease or medical condition" is much too vague and would allow arguments to be made which would widen the scope of the defence. I am not anxious to allow that and I am opposed to amendment No. 4 because it is unnecessary.

Amendments Nos. 135 and 136 propose to change the reference to "insanity" to "mental disorder" in both the Long and Short Titles of the Bill. I do not want to accept those amendments because corresponding changes would have to be made in the terminology throughout the Bill. I know that Senator Henry has raised the reference only in two instances. The change would be undesirable, however, because regarding the use of the less pejorative terminology, insanity is an outdated term, perhaps a little severe and slightly Victorian in concept. Terms of art with regard to psychiatry change over time. Most of the 19th century and early 20th century statute law uses terms with which we would now be slightly uneasy, such as idiocy, lunacy and feeblemindedness, which meant something at the time but now are a little out of kilter with modern terminology. Such terms were the best people could find in those days and were not meant as terms of dismissal. They were the common terms in the old medical textbooks, as Senator Henry will no doubt agree.

We do not want a situation in which juries would arrive at the view that any mental disorder, regardless of how trivial, would provide grounds for acquittal. The Bill creates a high threshold. Whatever the term "insanity" might convey and connote to psychiatrists and sociologists, to the ordinary man and woman in the street it suggests that the person in question was insane when the offence was committed. A definition of what that means is then given. It means that it is not something trivial. The word "insanity" denotes a category of disorder which is far from trivial, minor or incidental. One would hesitate before finding someone "insane". It is a threshold which has a degree of seriousness attached to it. It also carries some solemnity, so that a jury will not simply imagine that the person in question was a little upset on the day, or inclined to fly off the handle, or had a short temper, or suffered from some sort of low-grade personality disorder.

A high threshold is being set for excusing someone of criminal responsibility for his or her acts. One is saying that most people in a liberal society, however quirky or multifaceted or egregious their personalities might be, are presumed by the law to be morally and intellectually responsible. They are allowed to vote, to get married and to do a great many things. If they stand in court and ask a jury to excuse them from responsibility for their acts, they must undertake a high threshold of proof of insanity and not merely raise a doubt as to the oddity of their character or the flakiness of their personalities.

Language is always imprecise and doubtless in 20, 30 or 40 years' time someone will look back at this debate with mirth and say that my defence of the term "insanity" was a piece of early 21st century folly. To change the word "insanity" to "mental disorder" would send a signal that thresholds were being significantly lowered. We live in a liberal society and should strongly rely on the presumption that although people differ greatly in their psychological and psychiatric constitutions, with some people having very turbulent constitutions, the circumstances in which they will be excused criminal liability are ones for which a threshold of seriousness and gravity must be passed before a decision to acquit is made.

It is that decision with which we are now dealing. We are talking about a verdict of "not guilty by reason of insanity". We are establishing a high threshold and not inviting juries to adopt a sympathetic mode and wonder if a person should be punished at all. We are saying that people in our society must bear criminal responsibility unless they suffer from a mental disorder which satisfies the high threshold set by the statute and with which the public thereafter can be comfortable. It is very important that the public does not see psychiatry as providing a "get out of jail free" card for people in circumstances where public confidence in the administration of justice would be adversely affected.

With regard to section 4(1)(b), the point is not merely that one might be suffering from a disorder, but that “the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she (i) did not know the nature and quality of the act, or (ii) did not know what he or she was doing was wrong, or (iii) was unable to refrain from committing the act.” Those are high threshold tests which must be overcome in order to disestablish the presumption of criminal responsibility in an adult person. I do not want to be party to a dilution of criminal responsibility not because of conservatism, but because the dignity of the individual, and the public attitude to such issues, are centred on a presumption that however diverse people’s personalities are, people must be respected as free moral agents in a society and should not be excused from a responsibility unless there is a clear case made that because of their mental disorder at the time, they fell below a fairly exacting threshold.

Can the Minister say how the definition as it stands allows for personality disorder?

It does not exclude it. What is meant by personality disorders? If the term personality disorder is put in the legislation, a definition must be included. We would be here until the crack of doom working out what constitutes a personality disorder. The Mental Health Act raises an issue as to whether mental disorder by definition encompasses personality disorder or not; it can be argued both ways. I do not want to close the door on an individual being able to establish that he suffered from a personality disorder which went over the threshold in section 4. Going back to the earlier debate with Senator Terry on intoxication, if an express reference is included, some guidance would then have to be given to the courts. I do not feel either inspired or competent to do so.

There appear to be two thresholds in the Bill. Under the section on fitness to be tried, section 3(b) states that the courts should determine “if the accused person is suffering from a mental disorder, within the meaning of the Act of 2001.” If it is suitable there, why is it unsuitable for the whole Bill? Under subsections (7) and (8), the courts are supposed to use the mental disorder definition from the Mental Health Act. Subsection (7) states:

Where on the trial of an accused person the question arises as to whether or not the person is fit to be tried and the court considers that it is expedient and in the interests of the accused so to do, it may defer consideration of the question until any time before the opening of the case for the defence and if, before the question falls to be determined, the jury by the direction of the court or the court, as the case may be, return a verdict in favour of the accused or find the accused person not guilty, as the case may be, on the count or each of the counts on which the accused is being tried the question shall not be determined and the person shall be acquitted.

The Minister said that he does not want the Mental Health Act definition used in the Bill, but it is referred to in this section.

Subsection (8) states:

Upon a determination having been made by the court that an accused person is unfit to be tried it may on application to it in that behalf allow evidence to be adduced before it as to whether or not the accused person committed the act alleged and if the court is satisfied that there is a reasonable doubt as to whether the accused committed the act alleged, it shall order the accused to be discharged.

Why is the definition from the Mental Health Act used in this subsection yet not used in the definition?

The Minister's definition of thresholds for mental disorder introduces a lower one than that in the Mental Health Act. The public is entitled to have the higher definition applied. Under the Minister's definition of mental disorder, it can be claimed that 25% of the population will suffer some form of mental disorder. If those with Prozac prescriptions are included, the definition could apply to anybody. Why not use the higher definition as in the Mental Health Act?

This Bill will treat people differently. For example, a large number of mentally ill people used to congregate at Baggot Street Bridge. Due to my complaints that they were getting so little treatment there, they have been moved on to some other bridge. Occasionally, some of the local shopkeepers had trouble with them with items such as milk being stolen. In general, the shopkeepers were understanding about this and did not contact the police. However, what if a shopkeeper got fed up and decided to contact the police? Under this Bill, that same mentally ill person will have a different test of mental disorder applied to him because the shopkeeper pressed charges. Is this right under human rights legislation when this is the same mentally ill person? Why is the Minister for Justice, Equality and Law Reform persisting in deciding that these people must be treated differently?

The Minister's threshold of mental illness is much lower than the one put forward by the Mental Health Act. I cannot understand this but I am sure that the Minister will elucidate matters. Why is he using the definition in the most important subsection? Mentally ill people must be taken out of the criminal law system. At the same time, their rights should not be destroyed. Mentally ill people have certain rights and, irrespective of whether they are charged for stealing a bottle of milk , they must get the same treatment in the law.

From the Minister's comments, he does not have a high opinion of psychiatrists andsociologists.

I never said anything of the sort.

The Minister should not shake his head. On Second Stage, he informed the House that this Bill was for the ordinary, common sense, normal people one finds in the Four Courts and not psychiatrists. However, the courts rely on psychiatrists to give a medical opinion in cases. To ask them to give an opinion in a situation which they believe is crazy — forgive the use of the term — is not good. It may be all right in legalistic terms, but these professions have ethical responsibilities to the people in front of them in a courtroom, which they must consider first and foremost. The Minister does not have to include every last line of section 3 of the Mental Health Act to say that one has a mental disorder. If parts of it apply to an individual, that will be sufficient. If an individual is suffering from hallucinations, one does not have to say he has delusions aswell.

The Bill asks professional people to go before the courts to use vague forms of wording and definitions that they do not believe are suitable. I object to the term "mental handicap" being used because it went out with buttoned boots. The definition is pitched too low. The Minister claims people wanted it pitched high enough and that is why the word "insanity" is used. Its use does not mean it is high enough. This is an old-fashioned word although I do not mind if people giggle about it in 40 years time. However, modern psychiatric terminology should be used in a Bill concerning mentally ill people. Psychiatrists coming before the courts to give professional opinions in cases must believe they are doing so within the parameters of psychiatric disease.

The Senator's points are interesting as they go to the heart of the Bill and its intentions. I agree with Senator Henry's point, which was endorsed by the Minister, that the threshold should be high. One is exonerating people from serious criminal offences because of their mental state. I concur with the Minister in respect of the use of the word "insanity". The word has connotations, perhaps not for the medical profession, but for the public at large. The Minister made the valid point that it is important that public confidence in the system is secured when people are excused in court of an offence on the grounds we have mentioned. Confidence can sometimes be dented, however.

I am not sure I agree with Senator Henry's comment that persons who are mentally ill should be taken out of the criminal court process. I hope I understood her correctly. Surely the nature of the illness should be the relevant factor. I think that what qualifies should not depend on the definition of "mental disorder" one uses. I note the distinction the Minister made between the definition in the 2001 Act and that in this Bill. I am inclined to concur with his point that the manner in which it is defined here — it is not over-defined — is probably preferable because it takes into account case law that has arisen from years of jurisprudence. What is really relevant in determining and defining it, surely, must be section 3(2)which states:

An accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand the nature or course of the proceedings so as to——

(a) plead to the charge,

(b) instruct a legal representative,

(c) make a proper defence,

(d) in the case of a trial by jury, challenge a juror to whom he or she might wish to object, or

(e) understand the evidence.

Surely that will be the yardstick by which the court will assess the matter, before coming to a decision with the assistance of medical evidence. The real test is whether the person, in a legal scenario, is being excused.

The Minister mentioned section 4(1)(b) of the Bill, which states that a court or jury should find that “the accused person is not guilty by reason of insanity” if:

the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she——

(i) did not know the nature and quality of the act, or

(ii) did not know that what he or she was doing was wrong,

(iii) was unable to refrain from committing the act,

I understand that the clearly established definitions in the Bill take account of case law. We will have to leave it to the discretion of the courts to apply a test. It is obvious that legal people will make certain arguments to defend their clients. People can sometimes feign insanity. It can often happen that when one looks at or speaks to a person, one cannot ascertain their nature or tell whether they qualify under the terms of the provisions I have mentioned. That has to be tested. People should be held accountable for their actions unless they fit the criteria established in sections 3 and 4. A great deal of the debate on the definition of mental disorder may not be as pertinent as some of the other points made by the Senator, bearing in mind some of the Bill's other qualifications on that issue.

It is not for me to throw in the towel for Senator Henry or the other proposers of these amendments. I am grateful to the Minister for the cogency of his argument. I agree with him, to a certain extent, about the distinction between the fundamental purposes of this Bill and the 2001 Act. Although I argued for the adoption of the definition, I do not think I could support Senator Henry's argument that one could take parts of the definition while omitting others. If one does not take on board the entire definition, one is not dealing with the definition.

Most of us are concerned about the subsequent treatment of people. It is a question of one's opinion of whether a person is fit to plead, under the standards set down, or whether they could be held responsible for the action. Such conditions apply at a certain time. The reference to the Mental Health Act 2001 in section 4 is quite reasonable. The Bill states that if people need treatment, they should be treated in accordance with the 2001 Act, which is what we want.

Like other speakers, I encourage the Minister to keep the threshold quite high. That is important, in terms of public respect for the law, because it does not do anybody any good if people are able to plead on what most lay people would see as silly grounds. I am satisfied for the moment with the Minister's explanation of his position.

I wish to respond to a point made by Senator Henry. Given that it has been said that a different definition of "mental disorder" to that in the Mental Health Act 2001 is required for the purposes of the Bill, she rightly asks why a reference to the 2001 Act has been included in section 3(3). We are dealing with a slightly different situation here. Section 3 deals with the concept of fitness to be tried. It does not relate to guilt or innocence. If my fitness to be tried is an issue when I am brought before a District Court this afternoon, it is my fitness now — there and then, before the court — that is important. It does not relate to whether I shot my granny three months ago — it has nothing to do with that. A person may be fit to be tried even if it is certain in the minds of everybody in the court that he or she will be found not guilty by reason of insanity at the end of the case.

The issue of fitness to be tried relates to whether one is capable, at the time one is being tried, of participating in a meaningful way in the judicial process. The condition one was in when the alleged offence occurred does not matter. It is more important to determine whether one can understand the charge, give instructions to one's lawyers, make a proper defence, challenge a juror and understand the evidence. One's state when one is before the court to have one's fitness to be tried determined may not particularly relate to one's state six months or three years previously. Although one might have been suffering from chronic madness — or florid madness, to use an unusual term — when the crime was committed, one might have totally recovered. The exact opposite may also be the case — one might have been an absolutely ruthless killer, acting with premeditation and total sanity, but one might have thereafter become completely unfit to plead before a court. Anything could have happened with the passing of time. One may be unfit to plead because one may have suffered a serious mental illness, or a physical injurythat brought about mental disorder, in the interim.

Senator Maurice Hayes mentioned that section 3(3) states that if a court decides that one is unfit to plead, it can do certain things. By definition, the court does not decide whether a person is guilty or innocent of the original offence for which he or she was brought before it; it decides what to do with him or her now. The court can request that a person be committed to a psychiatric institution. If a judge states, without prejudicing the guilt or innocence of the person, that Michael McDowell should be committed to a psychiatric institution today, he or she has to ask if it would serve any purpose. The Department of Health and Children's representations have had an effect on the Bill in that regard. If I am a duine le Dia, or a person who is incapable of meaningfully participating in a criminal trial, it does not automatically follow that I should be placed in a psychiatric institution for treatment — it may be totally pointless and wrong to do so and could be a waste of everybody's time. If I stole a bottle of milk, as in Senator Henry's example, sending me to any psychiatric institution in the country might have absolutely no effect and I may be back at Baggot Street Bridge six or nine months later in exactly the same state of mind and unable to be helped by any psychiatrist.

Section 3(3)(b) states:

Subject to subsections (7) and (8), where in a case to which paragraph (a) relates [meaning somebody who is found to be unfit to plead] the Court determines that an accused person is unfit to be tried, that Court shall adjourn the proceedings until further order and may, if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to subsection 25(6) and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, [and] commit him or her to a specified designated centre until an order is made under section 12.

The section deals with people who are incapable of participating in the process of a court case. Having heard the evidence of a doctor, and any other evidence that is available, that the person needs in-patient care, the judge may commit him to a specified institution. In those circumstances it is not inconsistent to borrow the definition set out in the 2001 Act because that definition is crafted to raise the question of whether the person is a danger to himself or somebody else or is suffering from some disease which cannot be dealt with unless the person is committed to an institution. It is an entirely reasonable basis on which to decide whether the person should be so treated. I do not share Senator Henry's opinion about the importation of the definition in the 2001 Act for this limited purpose. We are talking about a case in which somebody has not been convicted of anything. The judge may simply tell the person he is free to go or he may decide the person should not be allowed to leave the court by himself. The definition is entirely suitable for that purpose.

Subsection (8) is also important. It states:

Upon a determination having been made by the court that an accused person is unfit to be tried it may on application to it in that behalf allow evidence to be adduced before it as to whether or not the accused person committed the act alleged and if the court is satisfied that there is a reasonable doubt as to whether the accused committed the act alleged, it shall order the accused to be discharged.

This provision is included because there are cases — I have seen them myself — in which there is no question of the accused being fit to plead but it is abundantly clear that the prosecution case would not succeed anyway because, for example, the accuser is wholly unreliable or the person did not have the bottle of milk when he was apprehended. In those circumstances, rather than allowing the criminal charge to survive, it makes sense to admit that the case would have collapsed even if the person was Albert Einstein, and bring proceedings to an end. That is perfectly reasonable.

I am in no way hostile to psychiatrists or sociologists. They perform a useful function in the criminal justice system as well as in the general world of mental health. However, I do not want a situation in which every controversy in psychiatric medicine becomes a controversy in criminal law. I do not want to marry two systems which are cognate but not identical. I do not want to pretend there is no difference between the requirements of civil law and those of criminal law in the area of mental health. There is no inconsistency in that distinction.

We make distinctions such as this in many areas. We make many decisions on the basis of the balance of probabilities. In civil law, the decision of who is responsible for a car crash is made on the basis of probability. In criminal law, the same car crash may be considered — if there is a charge of dangerous driving or manslaughter — and decided on with reference to a different standard. The mere suspicion that someone is a sexual predator, if it is well grounded, would cause an educational establishment to refuse to employ that person. We apply different tests for different purposes because they are crafted with different outcomes in mind.

I do not see why we should attempt to establish a phoney uniformity or commonality of approach if we are trying to achieve very different outcomes. It does not mean we are treating a person suffering from a mental disorder as a second-class citizen. Different concepts are brought to bear on the question of whether a person should be committed to a psychiatric institution, for example, or found guilty of an offence.

For the purpose of criminal law, it is not adequate to specify that a person must be in danger of harming himself or others or suffering from a condition which would merit committal to a psychiatric institution provided the person would benefit from this. If I slash the Mona Lisa, it may not be relevant whether I am also a threat to the attendants in the Louvre. Whether I intend to harm myself or others is immaterial. Whether I would benefit from in-patient treatment is also irrelevant. When it comes to the question of whether I was suffering from a mental disorder when I did such a thing, those two criteria will be of no assistance to a jury in deciding whether I should be convicted. One could bring in 20 reputable psychiatrists to say they were absolutely satisfied that I was a gentle soul who would never harm myself or anybody else. They could also say with certainty that a long spell in a psychiatric institution would have no effect on whether I would ever do such a thing again. If the two parts of the definition in the 2001 Act were ruled irrelevant — as they would be in those circumstances — the question of whether I was suffering from a mental disorder when I committed the offence would be central. I am not being specious. I am trying to make the point as strongly as I can that we are talking about different things and we should not confuse them.

I do not for one instant think the Minister is being specious. I just want him to be sensible. I accept fully that some of the Minister's best friends are psychiatrists and, indeed, the odd sociologist may also be thrown in. However, I do not agree with the Minister. I think the mental disorder definition is sensibly inserted in this section and it would have been much better to follow it in the remainder of the Bill. The interpretation of the definition in this section will lead to people being able to prove there is mental illness when people were perhaps on Librium at the time. The definition in the Mental Health Act is of a much higher standard. I am unenthusiastic about part of section 4, which we will have a chance to discuss later. The Minister alluded to section 3(5)(c) but one of the big problems with it is that a judge can only recommend in-patient care or treatment in a designated centre, whereas the person may not need to be put anywhere. They could be perfectly all right under supervision in the community. Those points are for a later discussion, however.

Amendment, by leave, withdrawn.
Amendments Nos. 3 and 4 not moved.

Amendments Nos. 5 and 8 form a composite proposal. Amendments Nos. 50 to 56, inclusive, Nos. 58 to 73, inclusive, Nos. 75 to 86, inclusive, Nos. 88 to 90, inclusive, Nos. 93 to 102, inclusive, Nos. 105 to 108, inclusive, No. 112, No. 113, No. 117, No. 118, Nos. 120 to 122, inclusive, No. 124, No. 125 and No. 127 are related and may be discussed together with amendments Nos. 5 and 8, by agreement.

I move amendment No. 5:

In page 4, subsection (1), between lines 8 and 9, to insert the following definition:

"‘Mental Health Tribunal' means the Mental Health Tribunal established under Part III of the Mental Health Act 2001 with the additional condition that whendetermining matters in relation to a patient detained under this Act the Chairperson shall be a Judge of the Court which exercised criminal jurisdiction in relation to the patient;".

As the Minister knows, the Mental Health Act has proposed mental health tribunals which are in the process of being established. The composition of the commission and the tribunals looks like being eminently sensible. The membership of the commission will consist of a person with not less than ten years' experience as a practising barrister or solicitor in the State, ending immediately before his or her appointment to the commission; three registered medical practitioners, two of whom shall be consultant psychiatrists who are to have a special interest and expertise in the mental health service; two representatives of registered nurses whose names are with An Bord Altranais and who have psychiatric training; one representative social worker with special interest in this area; one representative psychologist with a special interest and expertise in the provision of mental health services; one representative of the interests of the general public; and three members from voluntary bodies promoting the interests of persons suffering from mental illness, at least two of whom shall be a person who suffers from or has suffered from a mental illness. In the latter case, such people will be easy to find because some 25% of us suffer from some form of mental illness during our lives. There will also be one representative of the chief executives of the health boards, although I do not know how they will find such a person given the boards are being abolished. In addition, not less than four members of the commission shall be women, and not less than four shall be men.

When there is one good commission which is to bring forward tribunals, why on earth does the Minister not use that and save the taxpayer some money? The Bill's explanatory memorandum states "it is not anticipated that the proposals in the Bill will have significant financial or staffing implications", but I have never known anything that did not cost something. The establishment of the mental health review board will certainly cost money. It would be sufficient for the Minister to appoint as chairperson of the tribunal a judge of the court which exercised criminal jurisdiction in relation to the patient.

Section 10, which provides for theestablishment of a mental health review board, does not include much information as to what sort of people should be on it. That information is well laid out in the Mental Health Act. The Minister could save his Department andthe taxpayer a great deal of time, trouble and expense by accepting that the tribunals, asestablished by the Mental Health Act, could review such cases. After all, the same sort of people will make up the membership both of the tribunals and the mental health review board, and they will be looking for the same sort of things. The person affected will have the same rights, whether they have been detained under this Bill, once enacted, or under the Mental Health Act. I would have thought the Minister could easily accept this amendment.

First, it is important to examine what is contained in the Bill in this regard. Schedule 1 states:

1.—The Review Board shall consist of a chairperson and such number of members as the Minister, after consultation with the Minister for Health and Children, may from time to time as the occasion requires appoint. The Review Board shall have as an ordinary member, at least one consultant psychiatrist [so the Senator can rest assured that such a person will certainly be there].

2.—The chairperson shall have had not less than 10 years' experience as a practising barrister or practising solicitor ending immediately before his or her appointment or shall be a judge of or former judge of the Circuit Court, High Court or Supreme Court.

The mental health review board will be independent in the discharge of its functions. It is relevant also that the review board can review detentions. The purpose of the board is to advise and come to conclusions about whether a person should continue to be detained. One of the problems I have at the moment is that I am vested, as Minister, with powers of release or detention of persons who have been adjudged guilty but insane. Although it says "guilty but insane", it means not guilty and it is an acquittal.

In the context of deciding what one does with people who have been ordered to be detained in the Central Mental Hospital, following such a decision, one must rely on the expert opinion of psychiatrists who have viewed and interviewed such persons. In the last analysis, however, it is somewhat undesirable that it should fall to a political officeholder, such as myself, simply to operate on the basis of a very unstructured process in which the fate of a person who has been found not guilty, despite the wording of the verdict, lies in the Minister's hands. This is not something that happens every so often. I make detailed decisions on a weekly basis, sometimes making a number of such decisions each week, about whether persons should be allowed out permanently or temporarily to attend courses, visit family members, take up educational opportunities or go to work or on holidays, supervised and unsupervised. They are immensely complex decisions. The tribunals system under the other Act has a specific purpose, which is to review the decisions of psychiatrists. However, this body has a qualitatively different function, which is to make findings and to review the condition of people in one particular circumstance.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.