Criminal Law (Insanity) Bill 2002: Report and Final Stages.

I remind Senators that they may only speak once on Report Stage except for the proposer of an amendment who may reply to the discussion on that amendment. Each amendment on Report Stage must be seconded.

Amendments Nos. 4 and 5 are alternatives to amendment No. 1 and amendments Nos. 19, 37, 149 and 154 are related. These amendments may be taken together.

I move amendment No. 1:

In page 3, line 9, to delete "INSANITY" and substitute "MENTAL DISORDER".

I welcome the Minister of State, Deputy Brian Lenihan. I spoke at length on this issue on Committee Stage so I will spare the House a long explanation. I am anxious that the word "insanity" be removed from the Bill. During the Committee Stage debate, the Minister for Justice, Equality and Law Reform, Deputy McDowell, said he wanted to use the word "insanity" because everybody understood its meaning.

There are many words the meaning of which we understand but which we nevertheless do not use because they are considered politically incorrect, to use a phrase I dislike. In a recent radio discussion on racism and immigration, the Minister was asked by the interviewer about the type of phraseology he considered unacceptable. As an example, he replied that he would not use the "N" word because everybody understands it is a racist slur. We all remember the fuss created when Mr. Kevin Myers used some very inappropriate language in a newspaper article about children born out of wedlock. Incidentally, I found the phrase "cash crop whelping" far more offensive.

There are phrases it is unacceptable to use, therefore. One of the most important issues in regard to mental illness is ensuring that people seek treatment early. In this context, we would do well to avoid the stigma around the word "insanity". The Minister of State has progressed a little way, but I am a bit confused as to what he proposes to do with the title of the Bill. The title of the Bill is what will be out there in public. It is important that we make the Bill look as relevant as possible to the general public. "Mental disorder" and "mental illness" are the phrases that are used nowadays. They were the words used in the Mental Health Act 2001. They are also the words used in the Henchy report, which was written more than 25 years ago. I would hope the Minister and his advisers can see their way to do something about the title, and I would like the Minister of State to say how he sees the matter proceeding.

I second the amendment. It is a reasonable amendment and addresses a sensitive point. I fully support the sentiments expressed on the subject by Senator Henry.

The Minister for Justice, Equality and Law Reform takes the view that the amendment is not appropriate. The legislation we are enacting must be read in the context of the evolution of our criminal law. There is a decided judicial authority on the precise meaning of insanity and on the precise circumstances in which the plea of insanity will excuse an offender from criminal liability. The Minister sees the Bill as slotting into that context of Irish jurisprudence, and he maintains that the eventual Act will have to be construed in that context.

The development of the defence of insanity since the 1960s has been fixed on the question of a person's responsibility for his or her actions. That is unique among common-law systems, not just neighbouring jurisdictions but those further afield. The plea of insanity in Irish law is an excuse, rather than a condition. It is a factor that excuses liability from the commission of a crime. The Minister is prepared to say that, once the person is excused criminal liability, then the civil definition, which Senator Henry is essentially proposing through the amendment, will apply.

When it comes to the care of the person who has been tried, the civil definition will apply, as I understand it. For the purposes of defining the defence of insanity in Irish law, the Minister has drafted the proposed legislation on the basis of existing case law. That preserves the definition, and the Minister is anxious to preserve it into the future.

When he was here, the Minister for Justice, Equality and Law Reform said how much he admired Mr. Justice Henchy, whom he described as the greatest legal brain of the last century. Mr. Justice Henchy stressed that the prisoner could become a patient. That is one of the reasons I feel so strongly about the matter. I want the prisoner to be treated as a patient once it is recognised that he or she is a patient.

The Minister of State talked about tradition. For goodness' sake, if traditional practices are wrong, they should change. I am sorry about Deputy Lenihan's remarks. The Bill is entirely Deputy McDowell's. When he was here, he did not say a word about tradition. All that he said was that he liked the word "insanity" because everyone knows what it means. The Minister did not say anything about tradition.

Amendment, by leave, withdrawn.

Amendments Nos. 2, 3, 6, 8, 9, 48 to 57, inclusive, 59 to 74, inclusive, 76 to 78, inclusive, 81 to 88, inclusive, 90 to 93, inclusive, 96, 98 to 106, inclusive, 108, 109, 111, 112, 118, 119, 124, 125, 128 to 130, inclusive, 132, 133 and 136 are related and may be discussed together by agreement.

I move amendment No. 2:

In page 3, lines 14 to 16, to delete "TO PROVIDE FOR THE ESTABLISHMENT OF A MENTAL HEALTH REVIEW BOARD" and substitute "TO PROVIDE SUCH PERSONS WITH THE SAME PROTECTIONS AS ARE PROVIDED IN THE MENTAL HEALTH ACT 2001".

My intention with this amendment is to save the taxpayer money. One interesting aspect of the explanatory memorandum is its statement that there are no financial implications to the legislation. I have never heard anything so ridiculous. There is no Bill without financial implications and if people are to be given proper treatment or care there will be financial implications. The explanatory memorandum states:

It is not anticipated that the proposals in the Bill will have significant financial or staffing implications. There will be some extra costs associated with the work of the new Mental Health Review Board because its responsibilities as set out in the Bill are more extensive and onerous than those of thead hoc Advisory Committee which it replaces.

There will be expenses, not just with the review board, but also if there is to be any kind of semi-adequate care and treatment given to those who are at present not getting treatment.

The purpose of the amendment is to save some money for the taxpayer by providing that members of the mental health tribunals, established under the Mental Health Act, act in this manner and that the chair should comprise a judge or a lawyer of at least ten years' standing.

Is there a problem, a Chathaoirligh?

Which amendment are we discussing?

Amendment No. 2. We are taking a number of amendments together.

I have only seen these amendments myself so I can understand the Minister of State's confusion.

There is a grouping of amendments.

I only saw the groupings when I got here, so I will rely on the Clerk and the Clerk's assistant. If there is something the Minister of State objects to I hope he will allow me to remove it. This has been a bit of a rush despite it being over two years——

Would Senator Henry please repeat what she said?

I do not wish to continue until the Minister of State is ready. Is it all right to continue?

The Minister of State is ready.

As no one will take any notice of what I say I wonder why I bother. The mental health tribunals will have the advantage that the people comprising them, who would be much the same type of person as those on the Minister's review board, will get some experience as they deal with ordinary cases. When they come to criminal cases they can have as much advice and as many lawyers as they like, but I would like something already established to be used because those involved will have some experience. I hope there will not be people appealing to the review boards too often.

This is a practical initiative and my intention is not to be difficult. I wish the matter could have been examined more seriously. On Committee Stage, the Minister, Deputy McDowell, indicated he did not think much of the idea although a few people thought it was well worthwhile. I know it would involve extra work for the mental health commission but psychiatrists deal with the same kind of people.

The people who will be seen before the review boards will be serious cases. We have had people who committed murder come before thead hoc review board. They were in the Central Mental Hospital or another mental institution and were deemed fit to be released. Then they committed another murder and there was more trouble. In England recently someone who murdered two people was brought back to a high-security designated centre and managed to murder another person inside the institution. We are dealing with serious issues and dangerous people. If we place more legal emphasis on the mental health tribunal review boards, they at least would have some experience of assessing cases, whereas we are going to have boards set up de novo for these cases. This is disappointing.

I second the amendment.

The purpose of amendment No. 2 tabled by the Independent Senators concerning the Long Title of the Bill and the related amendments is to provide that the body carrying out regular reviews of cases involving the detention of persons found not guilty by reason of insanity or unfit to be tried in designated centres, including the Central Mental Hospital, should be the Mental Health Commission, established in accordance with Part 3 of the Mental Health Act 2001. It is Senator Henry's wish that the Mental Health Commission should be the review body for the purposes of this Act. However, the Bill reflects Government policy on the matter and proposes a separate, independent body, namely, the mental health criminal law review board, for this purpose. The details of this new body are set out in Schedule 1 of the Bill. There are many related amendments on this matter, numbering 55 in total, but most of these are of a technical nature. They merely change the title from the "review board" as proposed in the Bill to the "commission" as set up by the Health Act 2001.

The purpose of the four official amendments tabled by the Minister for Justice, Equality and Law Reform, is to insert "Criminal Law" into the title of the new body to assist in distinguishing it from the Mental Health Commission operating under the Health Act 2001 and to provide for the Irish version of the board's name.

The Minister for Justice, Equality and Law Reform stated on Committee Stage that he was receptive to the proposition that a more distinctive title be given to the new body so there would be no confusion between it and the mental health tribunals and the Mental Health Commission, which perform functions under the existing mental health legislation. He has, therefore, tabled the relevant official amendments, which provide for the new body to be called the mental health criminal law review board. The appropriate name of the new body will also be provided in Irish. This will necessitate an amendment to the Long Title of the Bill, as provided by amendment No. 3 and to the relevant definition in section 1, as provided for in amendment No. 8. Amendment No. 52 makes the necessary change to section 10 of the Bill and amendment No. 51 provides for an Irish title. A separate amendment to section 18, to be dealt with later, is a technical amendment designed to change the reference from "the commission" to "the board". It has been brought to my attention that we have not made a corresponding change in the title of the new body in Schedule 1 of the Bill. If the House has no objection, we will revisit that matter when we deal with amendment No. 153.

A detailed discussion took place on Committee Stage on the matter raised by Senator Henry's amendment. The Minister for Justice, Equality and Law Reform has not changed his views on the issue. The mental health tribunal, or tribunals, to be established by the commission in accordance with the Mental Health Act 2001, have specific functions and responsibilities under that legislation. The new mental health criminal law review board, to be established in accordance with the provisions of section 10 of this Bill, will have as its main function the regular review of the detention of persons found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by an order of the court and, most important, deciding on the release of such persons back into the community.

Human rights considerations are involved and the matter has become more acute now that the Convention on Human Rights has been incorporated into our domestic law by the provisions of the European Convention on Human Rights Act 2003. The Government decided that in order to comply with its obligations under the convention, a separate and distinct body must be established for these purposes, to take a proactive role in the review of persons under its aegis and to review their cases on its own initiative. The task of the new body will be a solemn business, which must command public respect and confidence, as it is almost certain that every decision will be subjected to intense public scrutiny, especially as the review board will have the power to decide on the release of persons back into the community. The body making such decisions should not be involved in day-to-day assessments of appeals by patients against their treatment or the manner in which they were committed to mental institutions under civil legislation. The Minister believes there is a sound basis for keeping the business of the two bodies separate and therefore, following on from this conviction, the Government cannot accept the amendment.

This raises an issue that displeases me. According to the terms of the Bill, the review body is under the control of the Minister for Justice, Equality and Law Reform, and must report to him.

I draw attention to the advice given by Mr. Justice Henchy in the third interim report of the interdepartmental committee on mentally ill and maladjusted persons. This was the basis from which we thought we were starting. The mental care review body in this legislation, referred to as the review body, shall consist of a chairman and deputy chairman appointed by the Minister for Health and Children after consultation with the Minister for Justice, Equality and Law Reform, one member and one substitute member appointed by the Minister for Health and Children, one member and one substitute member appointed by the Minister for Justice, Equality and Law Reform and two members appointed by the Minister for Health and Children from a panel of five psychiatrists nominated by the executive council of the Irish division of the Royal College of Psychiatrists.

This seems more concerned with the issue of health and the prisoner becoming a patient as opposed to what we have now.

Amendment, by leave, withdrawn.
Government amendment No. 3:
In page 3, line 16, after "HEALTH" to insert "(CRIMINAL LAW)".
Amendment agreed to.
Amendments Nos. 4 to 6, inclusive, not moved.
Government amendment No. 7:
In page 4, between lines 10 and 11, to insert the following:
"‘prison' means a place of custody administered by the Minister;
‘prisoner' means a person who is in prison on foot of a sentence of imprisonment, on committal awaiting trial, on remand or otherwise;".

This amendment adds the appropriate references in the definition section of the Bill. The definition of a prison is included in a definition section within section 2, which deals with the definition of designated centres. However, section 2 is being replaced with a new section in light of commitments made by the Minister during the course of debate on Committee Stage. The definition of a prison is being moved to section 1 for drafting purposes.

The need to define the term "prisoner" arises because of the new provisions inserted into the Bill by Government amendments Nos. 144, 145 and 146. These relate to the complicated question of the transfer of prisoners to the Central Mental Hospital who, for example, become mentally ill during the period of their imprisonment. This currently involves an arcane and outmoded administrative process.

I am not referring to the transfer of persons detained on the basis that they are unfit to plead or have been found not guilty by reason of insanity. Such persons cannot be detained in a prison because they have not committed a crime and have been excused by virtue of their condition from the commission of an offence.

That is a piece of good luck for them.

Those in the first category will not have proceeded to trial because of their unfitness to plead. Those in the latter category will not have had the mental element necessary to commit a crime.

Persons covered by the new arrangements will have been sentenced in accordance with law for the commission of a crime, but will have developed some form of mental illness during the completion of their sentence or one will have become manifest in the course of the sentence.

This issue arose on Committee Stage and was prompted by Senator Henry's very useful amendment No. 128, which has been retabled for this debate as amendment No. 137. I merely wish to set out the background information for the Senator before we later discuss the substantive matter.

I look forward to hearing how helpful I have been. I appreciate how important it was to include these explanations.

Amendment agreed to.
Government amendment No. 8:
In page 4, line 11, after "Health" to insert "(Criminal Law)".
Amendment agreed to.
Amendment No. 9 not moved.

I move amendment No. 10:

In page 4, line 27, after "may" to insert ", on the advice of the Inspector of Mental Health Services".

It is suggested that the Mental Health Commission should be consulted. I tabled this amendment because the Minister for Health and Children has a great deal to do and far more than she expected. It would be extraordinarily difficult to be in position to identify a designated centre without getting advice from somebody in the area of mental health. We must delete the phrase "prison or any part thereof".

Mr. Justice Henchy does not recommend sending prisoners who become patients to prison. It is not ideal because there is no therapeutic environment. Prisoners who are psychiatric patients are being treated in prison. We should ensure they are in suitable institutions. I cannot accept a prison as a suitable institution and neither does Mr. Justice Henchy, the various international bodies or the European Convention on Human Rights. We are putting something into legislation which is considered unsuitable by an extremely experienced judge as well as international bodies. Prison is not a therapeutic environment.

The Minister of State at the Department of Health and Children, Deputy Tim O'Malley, re-examined section 2 in light of the discussion on Committee Stage regarding Senator Henry's substantive point relating to the need to consult with the Inspector of Mental Health Services. He has recast the entire section in a separate amendment which is being discussed with this amendment. Although he has not engaged the services of the Inspector of Mental Health Services, the Mental Health Commission has been brought in with regard to the role envisaged by Senator Henry in an attempt to address her point.

There are a number of points in the re-drafts as submitted by the Minister of State. It clarifies that the Central Mental Hospital is a designated centre for the purpose of the legislation. First, it is better to state that openly in the legislation rather than deal with it as a matter of subordinate legislative inference. Second, it addresses Senator Henry's substantive point except that it requires the Minister for Health and Children, when designating a centre, to consult with the Mental Health Commission rather than the Inspector of Mental Health Services when a psychiatric centre is involved and to obtain the consent of the Minister for Justice, Equality and Law Reform when a prison or any part thereof is involved.

Third, this section proposes to accommodate another amendment yet to be discussed concerning the transfer of prisoners from prisons to designated centres. I touched on this earlier when discussing the interpretation centre. The fourth aspect of the amendment is being brought forward in light of suggestions by the Department of Health and Children and proposes to replace the word "institution" with "in-patient facility". This will allow in-patient facilities which are not hospitals to be designated under the Bill.

Amendment No. 13 was proposed on Committee Stage and the Minister of State stands over his reasons for objecting to it. A designation of centres for persons covered by the terms of this Bill is a matter for the Department of Health and Children in consultation with the Department of Justice, Equality and Law Reform where such a centre is located within a prison.

On the one hand, the State has a duty to provide care and treatment for the person who has been found by a court to be unfit to be tried or not guilty of a criminal offence by reason of insanity. On the other hand, there may be circumstances whereby it might be appropriate to detain a person in a prison rather than a psychiatric hospital. That is the unfortunate reality. We cannot rule out that at some stage requirements of public safety may override other considerations and the person may have to be detained within the confines of the most secure facility available. Any concern regarding the treatment, care and well-being of a person detained in such circumstances are met by the provisions in this Bill governing the establishment of the new mental health criminal law review group board and the extensive provisions of the Mental Health Act 2001.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
Government amendment No. 12:
In page 4, to delete lines 27 to 43 and substitute the following:
2.—(1) The Central Mental Hospital established in pursuance of the Central Criminal Lunatic Asylum (Ireland) Act 1845 is hereby designated as a centre (in this Act referred to as a 'designated centre') for the reception, detention and care or treatment of persons or classes of persons committed or transferred thereto under the provisions of this Act.
(2) The Minister for Health and Children may—
(a) after consultation with the Mental Health Commission established under section 32 of the Act of 2001, designate a psychiatric centre, or
(b) with the consent of the Minister, designate a prison or part thereof,
as a centre (in this Act referred to as a ‘designated centre') for the reception, detention and, where appropriate, care or treatment of persons or classes of persons committed or transferred thereto under the provisions of this Act.
(3) The Minister for Health and Children may by order amend or revoke an order undersubsection (2) including an order under this subsection.
(4) Part 4 of the Act of 2001 shall apply to any person who is detained in a designated centre under this Act.
(5) In this section, ‘psychiatric centre' means a hospital or in-patient facility in which care or treatment is provided for persons suffering from a mental disorder within the meaning of the Act of 2001.".
Amendment put.
The Seanad divided: Tá, 27; Níl, 14.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Hayes, Brian.
  • Henry, Mary.
  • Norris, David.
  • O’Meara, Kathleen.
  • Quinn, Feargal.
  • Ross, Shane.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Cummins and Henry.
Amendment declared carried.
Amendments Nos. 13 to 16, inclusive, not moved.

I move amendment No. 17:

In page 5, between lines 4 and 5, to insert the following:

"(2) An accused person is presumed to be fit to be tried unless the contrary is shown.".

I propose this amendment purely in the interests of certainty. The Minister should have little difficulty accepting it as it is not contrary to the policy behind the Bill. I merely want to make it clear that all persons will be presumed fit for trial until the matter of sanity is raised and adjudicated on.

I second the amendment.

The Minister did not accept a similar amendment on Committee Stage on the basis that it was neither necessary nor desirable. Provision on these lines, which is akin to a reversal of the burden of proof, would be objectionable as it would alter fundamentally existing law on these cases. The amendment also ignores the position that fitness to plead or, as it will be called following the enactment of the legislation, fitness to be tried, is a medico-legal issue. Most fundamentally, it does not relate to the guilt or innocence of the persons concerned.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 5, line 5, after "if" to insert "having obtained the opinions of two approved medical officers, one of whom is the clinical director of a designated centre, the court finds that".

The reason I tabled this amendment is that a judge in a court who has no experience of psychiatric matters is being asked to make a decision as to whether a person is mentally ill.

I second the amendment.

The difficulty with the amendment is that the matters set out in section 3(2) must be determined solely by a judge. As the Minister stated on Committee Stage, there is no need to hear the opinions of two doctors on an issue which will, in all likelihood, be obvious to the court. Once a determination is made that a person is unfit to be tried, the judge may proceed to hear evidence in the matter from an approved medical officer.

I had the impression on Committee Stage that the Minister did not believe it necessary for the psychiatric profession to give an opinion in many areas.

In the normal course of events the evidence of psychiatrists will be heard by a judge on matters of this type and it would be extraordinary if that were not the case. There is a difference, however, between indicating that a judge will hear evidence as a matter of course and practice and prescribing in legislation that, as a necessary precondition of a judge exercising his or her jurisdiction, he or she must have obtained the opinions of two approved medical officers, one of whom is the clinical director of a designated centre. In effect, the amendment would trammel the court in the range and quality of evidence it could entertain on an inquiry of this nature and circumscribe it by requiring, as a necessary precondition, that the opinion of the persons indicated should be heard ahead of anyone else.

Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
Government amendment No. 20:
In page 5, between lines 9 and 10, to insert the following:
"(c) in the case of an indictable offence which may be tried summarily, elect for a trial by jury,”.

During the debate on section 3 on Committee Stage the Minister indicated he was considering including a further ground in the section relating to unfitness to be tried. This relates to a person's inability to elect for trial by jury in a case involving an indictable offence. Sometimes a person must elect as to whether he or she wants to be tried in the District Court or Circuit Court. This right of election is just as important as the right to challenge a juror or make a proper defence. As the purpose of the amendment is to provide accordingly, I am sure Senators will have no objection to it.

If it is possible for me to second the amendment, I would like to do so.

Amendment agreed to.

Amendments Nos. 21, 28, 39, 58, 80, 110, 114 to 117, inclusive, 123, 127, 131, 134, 135 and 150 to 152, inclusive, are a composite proposal and should be taken together.

I move amendment No. 21:

In page 5, line 29, to delete "or" and substitute "and".

On a point of clarification, did we not take those amendments previously with amendment No. 14?

Amendment No. 14 was not moved as amendment No. 12 was agreed.

This is a very important issue to me. I pointed out during the debate on Committee State that in half the Bill, the description was "care or treatment" while in the other half it was "care and treatment". The terms appear to be randomly dispersed. However, to my horror, where I suggested we should have "care and treatment", the Minister has changed it to "care or treatment".

I looked up the meaning of "care" in legal dictionaries. They referred to matters such as reasonable care and custody and asserted that it was not limited to the physical well-being of a child in terms of the provision of meals and comfort, but also that he or she had to have proper education and so forth. However, therapeutic care of a person was not mentioned anywhere.

Treatment is extraordinarily important, as these people are ill. We could have a situation where we are simply warehousing these people in designated institutions. In the Mental Health Act, care and treatment is applied all the times. I do not care that is a civil Act while this is criminal legislation, it is all about people. It is about prisoners who have become patients. Mr. Justice Henchy, who was much admired by the Minister for Justice, Equality and Law Reform, asks for care and treatment for people. There is no definition for either care or treatment in the Bill that we are discussing today. However, in the Mental Health Act 2001, treatment is defined as:

in relation to a patient, [which the prisoner has now become] includes the administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder.

The Act uses the word "ameliorating". It does not state that there must be a possibility of cure. This is extraordinarily important because there is no point in moving people from one institution to another if one is not going to do something to help their situation.

I have only had a brief opportunity to examine the Government amendments on the transfer of prisoners. However, it appears to me that, according to later provisions in the Bill, someone might agree to a voluntary transfer to the Central Mental Hospital or another designated institution because he or she is considered to be mentally ill in a prison. If that person does not agree to treatment, he or she can be transferred back to the prison. Care alone will not be enough. However, in the Bill we are stating that either care or treatment will suffice. What about the prisoner who then decides he or she does not want treatment? That prisoner will be obliged to have it, even though the Bill earlier includes the wording, "care or treatment". I have never seen anything so confused in my life. I cannot understand why mentally ill people are not being considered as patients who are in need of treatment.

I support Senator Henry. I remember some ten years ago, very early on in my career here, one of the first debates in which I was involved concerned a prison Bill. While speaking off the cuff, I stated that although I was unsure that I had thought out the question as to why people should be sent to prison, among the reasons that I could think of was the protection of society, punishment and rehabilitation. While these were good options to have included, rehabilitation, if it ever takes place, should certainly be for those who are affected by the area we are debating in this legislation. Senator Henry has made a strong case for including treatment as well as care although I will not repeat her statements. The case deserves attention and she has made a case that deserves full approval on that basis.

I also fully support this amendment. The question of treatment is essential. How can the Government insert "care or treatment" and not accept "care and treatment" in a situation like this as has been explained by Senator Henry? It is inexplicable, because treatment should be there and the people affected must be treated as patients. They should also be entitled to treatment. I ask that the Minister reconsiders this issue in view of the points made so eloquently by Senator Henry.

Of course the Minister wants everyone detained under these provisions to have care and treatment in the ordinary sense. However, words we use in the ordinary sense do not always translate in the extraordinary sense of an Act of the Oireachtas. The Minister is convinced that the words must be used disjunctively in this context to ensure the maximum protection for the person and to ensure that he or she is not in fact warehoused.

The origin of this discussion is that the Bill was originally inconsistent, as references were made to "treatment or care" or "care or treatment". When the matter arose on Committee Stage, the Minister advised that not only should there be uniformity in the Bill, but that the term to be used should be "care or treatment", because as it is wider, it allows for a greater discretion in this sensitive area.

If "care and treatment" is used, it might be interpreted as meaning that if a person could not be treated, he or she could be denied care, whereas by using the disjunctive "or", either of these can be provided to a person under the legislation.

The Minister is very concerned with any possibility that a person with certain conditions might be left to one side. His preference is for the term "care or treatment", because of the greater amount of flexibility it accords in legal terms. To use "care and treatment" throughout the Bill would suggest that in all circumstances, both care and treatment must be provided, whereas only one might be possible. An example might be where a person's condition is not treatable where, for example, he or she suffered from Alzheimer's disease, but the person would still require a great deal of care. The Minister also mentioned on Committee Stage that in some areas of the Bill there are references to "care and treatment" and others to "treatment and care". He is bringing forward amendments to regularise the position, to make all references refer to "care or treatment".

The basis regarding treatment appears to change daily. The Minister of State gave Alzheimer's disease as an example. Nowadays, most people would think that far more should be done for people with Alzheimer's disease than just keeping them warm and feeding them. It was not a very good example. It could be a cost-saving effort not to treat people. I would not like to see that situation arise, particularly as the explanatory memorandum made reference to there being no financial implications. Of course there will be financial implications if we are going to treat people. I do not think the Minister of State's explanation is satisfactory.

Question proposed: "That the word proposed to be deleted stand."
The Seanad divided: Tá, 27; Níl, 16.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • Norris, David.
  • O’Meara, Kathleen.
  • O’Toole, Joe.
  • Quinn, Feargal.
  • Ross, Shane.
  • Terry, Sheila.
  • Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Cummins and Henry.
Question declared carried.
Amendment declared lost.

I move amendment No. 22:

In page 5, line 30, to delete "commit him or her to a specified designated centre" and substitute "commit him or her to the designated centre subject to the agreement of the clinical director of the specified designated centre".

I have tabled this amendment concerning the requirement for the agreement of the clinical director of the specified designated centre due to the possibility of people being sent to a centre incapable of dealing with them. The Minister for Justice, Equality and Law Reform on Committee Stage did not give the amendment a good reception, which should surprise the Minister of State, but it is a serious problem. There are few closed units in this country where a person can be safely kept. Not only the safety of the person to be transferred must be considered but also the safety of staff and other patients.

It concerns me that the lack of facilities within a designated centre for a seriously-ill person might not be realised. It will be easy to transfer most of these people to somewhere that is not too secure as they are persons who have caused problems or committed crimes that are nuisances rather than anything of serious consequence. We are not focusing on people who have committed serious crimes only. It is important that the people at the other end of the spectrum have a closed ward. People may be seriously ill because they have not taken their medication in recent months. This can happen and it is worthwhile considering it.

Let us examine what could happen were the amendment accepted. The courts would require the consent of the clinical director of the designated centre concerned before a person could be committed or referred to it. What would the courts do if they found that no clinical director would accept the person? As the Minister said in the course of an earlier debate, it is appreciated that the motivation for this amendment arises out of a concern that clinical directors may feel they are unable to accommodate such persons. This is a question of provision. The Minister for Health and Children must consider whether there is appropriate provision. Her attention will be drawn to it so that provision can be examined in advance of the commencement of the legislation.

While other Departments seem to countenance the plea from their agents who are in receipt of public funds that provision cannot be made for a person, the Department of Justice, Equality and Law Reform cannot countenance a position where the orders of the courts cannot be implemented or where the courts can be met with the plea that provision cannot be made for a person. It must see that the decrees of the courts are enforced.

I second the amendment.

I see the difficulties presented by the Minister of State but there is a problem in that we are failing to establish proper psychiatric centres of use to such people. This might give some impetus to the issue.

Amendment, by leave, withdrawn.
Government amendment No. 23:
In page 5, line 30, to delete "or commit" and substitute "commit".

The Minister for Justice, Equality and Law Reform mentioned on Committee Stage that an amendment would be introduced on Report Stage to remove the word "or" in line 30 of section 3(b). It is a correction of a typographical error in the text.

Amendment agreed to.
Government amendment No. 24:
In page 5, line 47, after "the" where it secondly occurs to insert "accused".

This is a technical amendment recommended by the Parliamentary Counsel.

Amendment agreed to.
Amendment No. 25 not moved.
Government amendment No. 26:
In page 5, line 48, after "tried" to insert ",".
Amendment agreed to.
Government amendment No. 27:
In page 6, line 3, after "made" to insert "but, in any case where section 13 of that Act applies, the person shall be returned for trial".
Amendment agreed to.
Amendments No. 28 and 29 not moved.

I move amendment No. 30:

In page 6, line 34, after "court" to insert "only with the agreement of the relevant consultant psychiatrist from the relevant designated centre or the Central Mental Hospital".

This amendment deals with the same issue as discussed in other amendments.

I am sure I will make as little progress with it. The significant shortage of proper places for people who may need to be detained is causing a terrible problem. I thought it wise to speak with someone in the designated centre or in the Central Mental Hospital before transferring a person in a taxi with a prison officer.

As Senator Henry has accepted, the same considerations that arose in my last substantive reply apply to this. The courts would require the consent of the clinical director of the designated centre concerned before a person could be referred there for examination by an approved medical officer. What would the court do if it found that no clinical director would accept the person? I will draw the attention of the Minister for Health and Children to the problem.

I gave Senator Henry a vigorous reply earlier. Having served as a Minister of State in three Departments, there is a remarkable difference between the Department of Justice, Equality and Law Reform and other Departments on this issue. They are always most anxious to ensure the enforcement of court sentences.

In the case of the Prison Service, there must always be a place, even if it involves the release of a person approaching the end of his or her sentence. This attitude does not prevail in other Departments. As a result, persons have recourse to the courts even in a civil context to try to ensure they have services. I am not necessarily critical of this amendment and have some sympathy for the insertion of these clauses by the Department of Justice, Equality and Law Reform, as it must ensure its responsibilities are met.

Amendment, by leave, withdrawn.

Amendment No. 31 is a Government amendment and amendment No. 42 is cognate.

Government amendment No. 31:
In page 6, line 36, to delete "28" and substitute "14".

During the Committee Stage debate on amendments Nos. 20 and 24, as moved by Senator Henry, in the context of the involvement of the clinical director of a designated centre in the court process, particularly in regard to whether the particular institution would assume responsibility for a person, the Minister said that the period of referral, as provided for in the sections, could be reduced and the purpose of these two amendments is to reduce the initial holding period from 28 days to 14 days. This should facilitate clinical directors when they are faced with the prospect of a person being referred to them for assessment. At least Senator Henry has saved the clinical director 14 days.

Naturally, I will have some crib about this provision which astonishes me. The Minister of State is attached to the Departments of Health and Children and Justice, Equality and Law Reform. I keep trying to point out that the same psychiatrists will have to try to make both Bills workable. Section 18 of the Mental Health Act deals with a review by a tribunal of admission and renewal orders. I am delighted the Minister has reduced the number of days from 28 to 14 days, which is good. However, section 18(2) states that people should be reviewed not later than 21 days. Why is there no consistency? Why is it 14 days? One must remember it will need to be stuck in a psychiatric registrar's head that within 21 days, he or she will have to get going and do something, no matter what type of person is involved. We must try to make the Bill as good as possible.

I am delighted the length of time has been reduced but I would not have been unhappy if there had been some consistency. A psychiatric registrar, working in St. Patrick's Hospital up to the end of June, will be transferred to the Central Mental Hospital and he or she will be in the habit of saying, "These people have been in for 21 days, I must do something". He or she will be wrong because the length of time will have been reduced to 14 days. There is a need for some consistency.

We get into this mess again further on in the Bill where there are consultant psychiatrists and approved medical officers. Approved medical officers are described in the interpretation section as consultant psychiatrists. Why not use the same terminology in the Bill?

I take it the Senator is referring to the 2001 Act and to this legislation in referring to these inconsistencies. Of course, there is a fundamental distinction between this Bill and the 2001 Act. This Bill deals with persons who come before the courts and it provides a "regime", if I can use that somewhat sinister word, for them. The purpose of the 2001 Act is quite different and it deals with the general care and attention of such persons.

I know the people who must try to work these Acts.

Amendment agreed to.

Amendment No. 32 is a Government amendment and amendments Nos. 33 and 46 are cognate.

Government amendment No. 32:
In page 7, line 9, to delete "committed" and substitute "did".

The thinking behind these amendments relates to the point that the word "committed" carries a connotation that people might have known what they were doing when they committed the act giving rise to the offence. It could be argued the word "did" is more neutral in that regard and would be more appropriate for use in the Bill. The other reason is that the word "did" is used in the Bill. As the Minister put it on Committee Stage, it would be better to settle for a tyranny of consistency.

Amendment agreed to.
Government amendment No. 33:
In page 7, line 11, to delete "committed" and substitute "did".
Amendment agreed to.

Amendment No. 34 is a Government amendment to which amendments Nos. 35 and 36 are alternatives.

Government amendment No. 34:
In page 7, between lines 11 and 12, to insert the following:
"(9) Where evidence is adduced before the court undersubsection (8) but the court decides not to order the accused person to be discharged, no person shall publish a report of the evidence or the decision until such time, if any, as—
(a) the trial of the person concludes, or
(b) a decision is made not to proceed with the trial of the person or the trial is otherwise not proceeded with.
(10) A person who contravenessubsection (9) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.”.

Senator Tuffy tabled an amendment on Committee Stage which is similar in terms to this amendment. The Minister noted that it raised an interesting point and said he would consider the matter further. Having reflected on Senator Tuffy's proposed amendment, the Minister is of the view that, as drafted, there is potential in section 3(8) for a court to conclude, without the benefit of a full trial, that there is not reasonable doubt that an accused did the act alleged. It is clear that such a conclusion could be prejudicial to the interests and good name of an accused thereafter or at any future trial. The Minister proposes an amendment using a slightly different formulation from that proposed by Senator Tuffy which will address her concerns and which provides for a penalty in circumstances where the provisions of subsection (9) are breached.

My amendment No. 36 is being discussed with this amendment and what the Minister has proposed goes a long way towards addressing it. I would have liked him to have gone further because it is hard enough for people who are not fit to plead to have their entire psychiatric history in the public press when perhaps they are at a stage of treatment when they know what is going on. It is also hard on families. What the Minister has done is a help. Having medical details of this nature disclosed in the press is always rather worrying. What the Minister has proposed will at least address the situation coming up to the trial. I would prefer if entire medical reports were not published in the press without the permission of the court. I would like the court to have the opportunity to give that permission if it believed it was relevant to the case. I would not like to think that a person's history over many decades would be disclosed in the press for the vicarious delight of the public.

I thank the Minister for taking on board the amendment we proposed on Committee Stage and for tabling a version thereof. Amendment No. 34 is probably better worded than my amendment.

I thank Senator Tuffy. In regard to what Senator Henry said, this Bill was initiated in the Seanad and I am prepared to look again at the issue she raised as to whether the protection of medical records is sufficient. The Minister used the phrase "where evidence is adduced before the court" and I envisage that in the general run of cases, that is exactly what has happened to the medical report or assessment. If there is any doubt about that, or any opening where the medical profession might be exposed, it can be looked at between now and when the Bill is taken in the Dáil. I give an undertaking to that effect because I agree with the Senator that it is important the matter is safeguarded and made rock solid in the legislation.

I thank the Minister of State for his reply. My amendment No. 36 is straight from my favourite piece of light reading, the Henchy report.

Amendment agreed to.
Amendments Nos. 35 to 37, inclusive, not moved.

I move amendment No. 38:

In page 7, to delete line 26.

This is the one place where my light reading and I fall apart. "Irresistible impulse" is a concept not known in psychiatry. Of course, one will be able to find a couple of people to come forward in the courts and there may be terrible trouble in various court cases because of this concept on which the Minister is very keen. I have been reliably informed by a wide selection of psychiatrists that "irresistible impulse" is not considered to be a diagnosis in psychiatry. I query the wisdom of keeping this concept in the Bill. As the Minister of State's officials will tell him, I raised this issue on Committee Stage and I will not go over it again. I believe it will cause terrible trouble in the future. I am thinking of barristers on this occasion.

The point of departure is that the Minister has decided to slot this Bill and his definitions therein into the settled case law and the judicial decision on this branch of the law. The Minister may have erred but so did the Supreme Court in Doylev. Wicklow County Council, in which the court incidentally approved the views of Mr. Justice Henchy in an earlier decision. The report which Mr. Justice Henchy wrote extra-judicially may be in conflict with the expression he gave of opinion judicially in this particular matter.

The point the Senator has raised is an interesting one. The purpose of the Bill, in terms of the test for insanity for the purposes of the criminal law is to restate the current position as it exists in the judge-made common law. That is the decision the Government has made on this. The third limb of the test for insanity, as it exists in our law, and as set out in section 4(1)(a)(iii) of the Bill is known as “irresistible impulse”. When the McNaughten rules were formulated by the judges in the 19th century they did not allow for the defence of “irresistible impulse”. They were criticised on that ground by many psychiatrists and jurists. I think it became the received wisdom among lawyers and jurists that the rules required revision in light of developments in psychiatric science. Attempts at a defence of “irresistible impulse” should be recognised.

The courts across the water managed to avoid having to give an authoritative determination on this issue and eventually parliament intervened with the Homicide Act 1957. In this jurisdiction the courts accepted the view that the McNaughten rules were inconsistent with modern psychiatric science and decided to modernise the rules by recognising the concept of irresistible impulse. What Senator Henry is saying is that a large number of psychiatrists of the more modern vintage do not accept the concept of irresistible impulse. The decision of the Government and the Minister is that in formulating a definition for the purposes of this legislation, he should build on what the courts have already decided.

To constitute the irresistible impulse, the person must have had an irresistible impulse and not an unresisted impulse and it must arise from a defective reason due to a mental disorder. The Supreme Court accepted that as the standard in Doylev. Wicklow County Council in 1974. In the 1994 decision of the people in pursuit of the Director of Public Prosecutions v. Courtney, the Court of Criminal Appeal stated unequivocally that irresistible impulse is a limited form of insanity recognised by our law. The lawyers have argued about this and the English courts do not recognise an irresistible impulse as a symptom from which a jury might deduce insanity but the issue is not so relevant there. I misstated the English law, though not Irish law.

The homicide legislation enacted in the United Kingdom in the 1950s did not recognise the concept of irresistible impulse; it recognised the concept of diminished responsibility. Irish law has not provided for that to date, it has provided for the concept of irresistible impulse. It has been decided to codify the existing position as recognised by the judges of the Supreme Court in this case. Far be it for me to disagree with the Minister. There is the question as to whether the whole definition in this matter would be better left to the courts in their wisdom, having heard appropriate evidence from the experts to be adapted from time to time. That said, the argument would be made that the Legislature has to give guidance and so we have based the guidance on what the judges have told us.

The difficulty, and it is the same difficulty with which the Senator commenced the debate this afternoon, is that we are talking not just about psychiatry but the area where psychiatry has to encounter the concept of criminal responsibility. The interaction between those two concepts is very difficult and it involves not just an acid test psychiatric call but a political call which we have to make as legislators. The boundary one decides to mark out in this area cannot be left exclusively to psychiatrists given that it is an area relating to the problems of the criminal law, and people must have confidence in the concept of personal responsibility. That is my own view on it but the Minister has taken a view and so has the Government.

I thank the Minister of State for his reply. I just have to tell my psychiatric friends to remember the good fees they will get going down to the law courts to argue on this issue. That, I hope, will cheer them up.

Amendment, by leave, withdrawn.
Amendment No. 39 not moved.

I move amendment No. 40:

In page 7, between lines 37 and 38, to insert the following:

"(3) Where a person has been found guilty of an offence, but prior to passing sentence the court becomes of opinion that the person is suffering from a mental disorder, the court having imposed a sentence may recommend that the sentence shall be served in a specified designated centre until such time as the person is no longer in need of in-patient care and treatment and shall thereafter be served in a prison or place of detention, and the Minister shall have regard to such a recommendation."

The reason for tabling this amendment is that one of the weaknesses of the Bill is that it does not give options at sentencing stage to deal with those whose mental problems become apparent at that time. On Committee Stage the Minister indicated he might accept a recommendation but not an order made in the course of sentencing. With that in mind we tabled the amendment.

The Senator has availed of the opportunity to push a door which the Minister left somewhat ajar during the debate on Committee Stage. There was a suggestion, in what the Minister said, that a judge making a recommendation that someone in need of psychiatric inpatient treatment in the Prison Service should have regard to that. The Minister, having reflected on the matter, is not swayed in his thinking since Committee Stage. While it is accepted that it is open to judges to make recommendations when passing sentence, when one considers such circumstances it is hard to see how any judge could make such a recommendation at such a late stage in a trial without appropriate medical advice to support it. As the Minister said on Committee Stage, it is better for the Prison Service to make decisions of that kind rather than the Judiciary. There would also be a concern that there could be some suggestion that designated centres could be substituted for jails and that they could be characterised as something which they are clearly not, that is, places of detention for persons found guilty as a punishment.

Amendment, by leave, withdrawn.

I move amendment No. 41:

In page 7, line 43, after "may" to insert "subject to the agreement of the relevant consultant psychiatrist of the relevant designated centre or, in the case of the Central Mental Hospital, the advice of a consultant psychiatrist from that hospital".

The purpose of this amendment is to try to get advice on where the courts were sending a prisoner who would become a patient. I doubt very much if I will get anywhere with it.

Amendment No. 42 which was taken with amendment No. 31, which reduced the period of referral from 28 to 14 days, might meet the point of Senator Henry's amendment. Otherwise the Minister is opposed to the amendment for the reasons already stated in regard to amendments Nos. 22 and 30. If the consultant psychiatrist or the designated centre refuse to accept the person, what are the courts to do?

Amendment, by leave, withdrawn.
Government amendment No. 42:
In page 7, line 45, to delete "28" and substitute "14".

Does this mean the person can be an outpatient for 14 days?

That is a very good improvement. Well done to the Minister of State.

Amendment agreed to.

Amendments Nos. 43 and 44 are related and may be discussed together by agreement.

I move amendment No. 43:

In page 7, line 49, after "so" to insert "subject to the agreement of the relevant consultant psychiatrist of the relevant designated centre or, in the case of the Central Mental Hospital, a consultant psychiatrist from that hospital".

This amendment concerns the agreement of whoever is in charge of the treatment centre.

Amendment, by leave, withdrawn.
Government amendment No. 44:
In page 7, line 49, after "so," to insert "after consultation with an approved medical officer,".
Amendment agreed to.

I move amendment No. 45:

In page 8, line 10, to delete "for murder" and substitute "for any offence which on conviction carries a sentence of imprisonment".

I could not work out why this was only for murder and thought other offences should be included. I am sure there is a good explanation for this.

The position is that the plea of diminished responsibility to which I referred in my last contribution, was introduced in United Kingdom law in the 1950s. This plea does not eliminate criminal liability; it reduces the conviction from a conviction for murder to a conviction for manslaughter. Murder carries with it a mandatory life sentence and for manslaughter the penalty is at the discretion of the court. Diminished responsibility, by definition, can only apply to the relationship between murder and manslaughter where there is a homicide. I suppose one could try to envisage or construct circumstances where diminished responsibility would bring one from actual bodily harm to common assault although in practice, substitute verdicts are generally allowed in that type of trial. The issue of diminished responsibility only arises in the context of a homicide and it has the effect of reducing the culpability of the individual from murder to manslaughter but it does not mean, as in the case of the plea of insanity, that the person is excused from all criminal liability.

Amendment, by leave, withdrawn.
Government amendment No. 46:
In page 8, line 22, to delete "committed" and substitute "did".
Amendment agreed to.

I move amendment No. 47:

In page 9, to delete all words from and including, "or of any" in line 42 down to and including "been convicted," in line 43.

Aspects of section 7(3) are quite remarkable. As drafted it allows the Circuit Court judge to find the person guilty of a charge that the court, in the words of the section "shall substitute a verdict of guilty of the offence charged or of any other offence of which it is satisfied that the person could (by virtue of the charge) and ought to have been convicted,".

I second the amendment.

I do not think the construction the Senator has put on this is correct. The Minister mentioned on Committee Stage references in subsections (3), (5), (8) and (10) of this section to offences other than the offence charged. I presume this is what Senator Cummins is referring to.

The Minister explained that this is to take account of cases where a person charged with one offence may be convicted of a different offence. If, for example, a person is charged with murder and found not guilty by reason of insanity and the Court of Criminal Appeal considers that the applicant was in fact suffering from a mental disorder and that the act in question would have amounted to a lesser offence of manslaughter, the court should still dismiss the appeal. The Minister also mentioned that if an amendment is proposed to subsection (3) which deals with appeals to the Circuit Court, then logically it should also apply in other cases to the Court of Criminal Appeal as provided in the other subsections. The Minister pointed to the text in brackets, "by virtue of the charge", in subsection (3). This is the crucial point because the reference in subsection (3) to the phrase, "by virtue of the charge", means that this option only arises where there is a choice open on the charge, not to additional or other charges.

Amendment, by leave, withdrawn.
Amendments Nos. 48 to 50, inclusive, not moved.
Government amendment No. 51:
In page 11, line 29, after "Meabhair — Shláinte" to insert "(An Dlí Coiriúil)".
Amendment agreed to.
Government amendment No. 52:
In page 11, line 30, after "Health" to insert "(Criminal Law)".
Amendment agreed to.
Amendments Nos. 53 to 57, inclusive, not moved.
Government amendment No. 58:
In page 12, line 3, to delete "and" and substitute "or".
Amendment agreed to.
Amendments Nos. 59 to 78, inclusive, not moved.

Amendment No. 79 is in the name of Senator Henry. Amendments Nos. 113, 120, 126 and 155 are cognate.

I move amendment No. 79:

In page 13, line 17, to delete "the consultant psychiatrist" and substitute "the approved medical officer".

I am at a loss to understand why the term "consultant psychiatrist" is used sometimes and the term "the approved medical officer" is used other times, when the approved medical officer is in fact a consultant psychiatrist within the meaning of the Mental Health Act 2001. Does this mean we are accepting, in the situations where the term "consultant psychiatrist" is written, someone who is not a person who is described as a consultant psychiatrist under the Mental Health Act 2001?

Yes, I am trying to assist the Senator.

I am sure the Minister of State has a good explanation for it but we were very careful about the definition of a consultant psychiatrist so that people from abroad could be used. I wonder why this change is in the Bill.

Senator Henry rightly says that an "approved medical officer" is defined as someone practising in the State because it imports the conditions set out in the definition of "consultant psychiatrist" in section 2 of the Mental Health Act 2001. Those conditions include a person who is employed by a health board or by an approved centre or whose name is entered in the division of psychiatry of the register of medical specialists maintained by the Medical Council in Ireland. Where the term "approved medical officer" is used in the Bill, it means a person who complies with all of these conditions. The term "consultant psychiatrist" on the other hand, is not defined for the purposes of the Bill, hence it does not carry with it any of the conditions I have mentioned. It is not so limited. It can mean a person practising in this field outside the State.

I presume this is to cover people who may come from abroad as witnesses.

I have the message now. Could they be involved in tribunals?

That is dealt with separately. It does not affect the Mental Health Commission whatsoever. I refer to the body being established under this legislation. Government amendment No. 155 limits membership of that body to approved medical officers. Consultant psychiatrists, therefore, cannot obtain such an appointment.

I thank the Minister of State for his explanation.

Amendment, by leave, withdrawn.
Government amendment No. 80:
In page 13, line 18, to delete "and treatment" and substitute "or treatment".
Amendment agreed to.
Amendments Nos. 81 to 88, inclusive, not moved.

Amendments Nos. 89, 94, 95 and 97 are related and may be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 89:

In page 13, line 46, after "oath" to insert ", affirmation".

The purpose of the amendment is to include the word "affirmation". The Interpretation Act 1937 is not fully comprehensive in this regard. The Minister said on Committee Stage this issue would be covered by the inclusion of the phrase "or otherwise", as provided in Government amendment No. 95. This represents an improvement in that more instances will be covered but does the Minister of State believe this is adequate?

I second the amendment. I have supported similar amendments in respect of this issue in other legislation because members of some Christian denominations believe it is wrong to swear on the Bible. It is time to re-examine the Interpretation Act in view of the incidence of people swearing on the Bible and subsequently being found to have told a pack of lies. It is difficult for those of who are practising Christians to see the Bible so debased. It may be more apt for people merely to affirm their intention to tell the truth.

The Interpretation Act 1937 provides that the word "oath" in the case of a person for the time being allowed by law to affirm instead of swearing includes an affirmation. Under this legislation, therefore, affirmation applies wherever the word "oath" is used. The Minister consulted Parliamentary Counsel on these amendments and is satisfied there is no need to include the words "or affirmation" as proposed in amendment No. 89.

The Minister is grateful to the Senators for drawing his attention to an inconsistency in the provisions as currently drafted. The phrase "on oath or otherwise" is used in some sections whereas the phrases "on oath" or "the oath" are used elsewhere. The Minister is satisfied with the reference to the oath in isolation in paragraph (k) as it deals with the issue of the administration of the oath. However, the other provisions relate to the cross-examination of witnesses and the giving of evidence by them and should refer to “the oath or otherwise”. This is the genesis of Government amendment No. 95.

Senator Henry raised an interesting point about affirmations. The Law Reform Commission examined this issue some time ago and it has occasioned differences of opinion in different jurisdictions. It is a more general matter that does not arise under this legislation. Perhaps a more appropriate vehicle for its consideration would be a Private Members' Bill. The Constitution, which was enacted at the same time as the Interpretation Act, does not provide for oaths for the various office holders as they enter into office, including judges, the President and so on, but provides for an affirmation made in the presence of Almighty God which dispenses with the necessity of having a copy of the New Testament in one's hand. This is an interesting intermediate solution to the problem.

I cannot assist the Senators any further in this regard. The Parliamentary Counsel has confirmed that the inclusion of the word "oath" in legislation carries, by necessity, the connotation of affirmation.

Amendment, by leave, withdrawn.
Amendments Nos. 90 to 94, inclusive, not moved.
Government amendment No. 95:
In page 14, line 4, after "oath" to insert "or otherwise".
Amendment agreed to.
Amendments Nos. 96 to 106, inclusive, not moved.

I move amendment No. 107:

In page 14, to delete lines 29 to 34.

This amendment arises as a consequence of my conviction that prison is an unsuitable place in which to treat those with psychiatric illness. I made my views plain on this point earlier.

I second the amendment.

The purpose of paragraph (b) is to provide for circumstances where a person is detained in a designated centre which is also a prison, something which is envisaged by the legislation. Prisons do not have clinical directors and, therefore, the duties and powers in section 12 are conferred on the governor as head of the prison. However, provision is made for appropriate advice to be provided to the governor on the exercise of the duties and powers conferred by an approved medical officer who would be a consultant psychiatrist.

Amendment, by leave, withdrawn.
Amendments Nos. 108 and 109 not moved.
Government amendment No. 110:
In page 15, line 14, to delete "treatment or care" and substitute "care or treatment".
Amendment agreed to.
Amendments Nos. 111 to 113, inclusive, not moved.
Government amendment No. 114:
In page 15, line 21, to delete "and" and substitute "or".
Amendment put and declared carried.
Amendment No. 115 not moved.
Government amendment No. 116:
In page 15, line 33, to delete "treatment or care" and substitute "care or treatment".
Amendment agreed to.

As amendment No. 116 is agreed, amendment No. 117 in the name of Senator Henry cannot be moved.

Amendment No. 117 not moved.
Amendments Nos. 118 to 120, inclusive, not moved.

Amendments Nos. 121 and 122 are related, and may be discussed together by agreement.

Government amendment No. 121:
In page 15, lines 41 and 42, to delete "for the patient's disposal" and substitute "as to how the patient should be dealt with".

The Minister undertook on Committee Stage to propose a more appropriate wording than "disposal" on Report Stage. The Minister now proposes to substitute for the words "for the patient's disposal" the formula "as to how the patient should be dealt with". I hope Senators will find that acceptable.

I am glad the Minister agreed to change the word "disposal", which would be more appropriate for the Department of the Environment, Heritage and Local Government or for waste management, for example. I had proposed one word to replace "disposal", whereas the Minister has chosen to put in a few more. However, I accept the amendment.

Amendment agreed to.
Amendments Nos. 122 to 126, inclusive, not moved.
Government amendment No. 127:
In page 15, line 54, to delete "and" and substitute "or".
Amendment agreed to.
Amendments Nos. 128 to 133, inclusive, not moved.
Government amendment No. 134:
In page 16, line 25, to delete "and" and substitute "or".
Amendment agreed to.
Amendments Nos. 135 and 136 not moved.

The Bill is to be recommitted in respect of amendments No. 137 and Nos. 144 to 146, inclusive. Is that agreed? Agreed.

Bill recommitted in respect of amendment No. 137.

I move amendment No. 137:

In page 16, between lines 36 and 37, to insert the following:

13.—(1) In relation to any person remanded into custody or sentenced to imprisonment, the Minister shall—

(a) have the power to give a transfer direction if he or she is satisfied by reports from two registered medical practitioners, one of whom is a consultant psychiatrist on the staff of the Central Mental Hospital, that the person is suffering from a mental disorder (within the meaning of the Mental Health Act 2001) and is in need of in-patient care and treatment in the Central Mental Hospital,

(b) in the case of all remanded prisoners, the court shall be informed of the making of this order and that the person has been transferred to the Central Mental Hospital,

(c) at the request of the clinical director of the Central Mental Hospital, the Governor of the prison from which the prisoner was transferred shall provide for transport and security for court appearances or other purposes,

(d) the person shall be detained in the Central Mental Hospital for treatment and shall have the same protections and rights as are contained in the Mental Health Act 2001,

(e) if the person is a prisoner who is on remand he or she shall be detained in the Central Mental Hospital until sentenced by the court, and

(f) if the person has been sentenced by the courts he or she shall be detained until the expiry of the sentence.

(2) In both cases the person shall be detained until the relevant consultant psychiatrist forms the opinion that the person is no longer in need of in-patient treatment or care at the designated centre and the consultant psychiatrist shall forthwith notify the Minister of this opinion; and

(3) Where the remanded or sentenced prisoner appeals successfully against his or her continued detention in the Central Mental Hospital to a Mental Health Tribunal, the Mental Health Tribunal shall forthwith notify the Minister of this decision and the Minister shall then order the return of the person to the prison from which that person was transferred."

This amendment represents an improvement on the present situation, which is quite unsatisfactory. There are some parts of the Bill that I do not like, because prisoners would not get treated sufficiently as patients, although there has is a big improvement in the provisions. Part 4 of the Mental Health Act 2001 will apply, which is important as it allows for consent to treatment. If a person goes voluntarily from a prison to the Central Mental Hospital but then does not agree to treatment, he or she can be sent back to prison. I do not know who decides whether the person is being unreasonable about their treatment. I have only seen the amendments recently.

Section 4 of the Mental Health Act allows people to refuse certain kinds of treatment, and I presume that would also apply under the Bill. I refer to electro-convulsive treatment, for example. It must not simply be a matter of a refusal of treatment. The prisoner — who becomes a patient, as I keep mentioning — must have preserved for him or her the rights that patients have under the Mental Health Act regarding treatment. That is probably the most important issue.

The Central Mental Hospital functions under the Department of Health and Children rather than the Department of Justice, Equality and Law Reform. I am sorry that more of the Mental Health Act 2001 does not apply to people when they are in different institutions. That has been a serious problem for a long time regarding the transfer of prisoners. The situation has been ridiculous, with people described as relevant officers — not medical officers — declaring that someone can go to court, where they are declared insane so that they can go on to some other institution. I am pleased about the provisions of the Mental Health Act that are being applied, but I would like the whole of the Act to be applied to people once they have become patients.

In explaining the Government amendments, I may be able to assist the Senator to an extent. The substantive amendments being proposed by the Minister arise from concerns that have been expressed for some time, both at home and abroad, about the system of certification, decertification and transfer of persons detained for appropriate psychiatric treatment in the Central Mental Hospital. The Office of the Attorney General has stated that the process is dubious from a legal viewpoint and creates administrative procedures that could be confusing in their application. Medical practitioners have been decertifying persons who had been certified a short period earlier merely as an administrative device to ensure that they could appear in court and then return to the Central Mental Hospital for treatment. The Attorney General has advised that the legislation covering the certification of persons in the categories affected — prisoners on remand or awaiting trial or sentenced prisoners — is no longer viable, and that the system for the transfer of such persons to the Central Mental Hospital should be overhauled and put on a modern, statutory basis. He suggested that the opportunity should be taken to insert suitable provisions in the Bill to modernise and clarify the purpose of transferring such persons to the central mental hospital and to repeal the relevant statutory provisions. It had been intended to deal with the matter under the proposed new prisons agency bill, but the Minister agrees with the views of the Attorney General and proposes to provide for the necessary legislative changes under the Bill.

It is relevant that the Council of Europe committee that covers the whole area of punishment commented on our arrangements in a report, following a visit and inspection of places of detention in May 2002. The main difficulties with the system include the fact that the certification and decertification processes require the official seal of the relevant Minister, in the form of a ministerial order, which must be signed by duly authorised persons. That can give rise to administrative difficulties.

There are a number of other difficulties, one of which is the one identified by Senator Henry. A problem can arise if a person transfers to the central mental hospital on a voluntary basis and subsequently refuses to take medication. In such cases, before medication can be administered, the person has to be transferred back to prison for certification and then sent back to the central mental hospital under a ministerial order. Senator Henry raised the issue on Committee Stage previously, and the Minister undertook to make his own proposals on the matter on Report Stage. The matter has been one of concern for some time. I appreciate the fact that, technically, the Seanad is technically back in Committee now. That is because of the substantive character of the amendment.

Originally, it was intended to deal with this question under the proposed prisons Bill, but the matter is also relevant to this Bill and the Government has decided to include the appropriate provision in it. It deals with the complex questions of prisoners being transferred from places of detention to the central mental hospital for treatment and back again. That affects persons who have been sentenced on remand or who are awaiting trial. The current procedure involves certificates from psychiatrists, certification and decertification procedures and transfers from prisons to the Central Mental Hospital. The procedures are Byzantine and confusing in their operation to say the least and need to be regularised. I propose a number of amendments today on behalf of the Minister to deal with the shortcomings of the existing arrangements. The intention behind these new provisions is to streamline the administrative formalities.

Will section 4 of the Mental Health Act apply to this transfer to the Central Mental Hospital?

It will apply. Will this section allow someone in prison for a minor offence to be transferred as an outpatient? Suppose a person has depression——

The earlier provisions cover that issue.

The earlier provisions will continue to apply here. That is important because one does not want to place people in institutions for treatment if they would be better off being treated as outpatients, just because they had been kicking milk bottles in the street because they had not taken their medication. That is good to hear. The Minister of State has gone a long way to try to solve what was an entirely unsatisfactory situation. Let us hope it will work in practice.

The Minister wished me to thank Senator Henry for raising this matter in the first instance.

I ask the Minister of State to send my thanks back to the Minister.

Amendment, by leave, withdrawn.
Bill reported without amendment.
Amendments Nos. 138 and 139 not moved.
Government amendment No. 140:
In page 17, line 14, after "Síochána" to insert "shall,".

This is a technical drafting amendment. Is it grouped with amendments Nos. 141 to 143?

I do not think so. I do not have such information in my brief.

We shall take the amendments together if that will assist the Minister of State.

Shall we take the amendments together? Would that assist the Minister of State?

Yes because the amendment addresses a matter raised by Senator Henry and other Senators on Committee Stage. Having considered the matter since Committee Stage, the Minister has decided to give effect to amendment No. 141 relating to an officer or servant of the designated centre. What is proposed by way of amendment No. 140 is that the insertion of the word "shall" after "Síochána" will mean there is a positive obligation on members of the Garda Síochána to arrest persons who may be unlawfully at large. This is a stronger provision than the equivalent section 27 in the Mental Health Act 2001.

The use of the word "may" provides sufficient discretion to officers or servants of a designated centre to decide for themselves, having regard to any risks to their own safety whether or not to carry out such an arrest. As the Minister said on Committee Stage, which is now listed as an amendment, he is not convinced that members of the Garda Síochána should be the only persons carrying out these functions.

There may well be particular circumstances where practicality and expediency of the common good may require officers of a designated centre to act. We are dealing with powers of arrest.

Is the Minister of State accepting amendment No. 141?

In substance.

I am glad of that. Some of these people may not be dangerous, others could be very dangerous. I do not like the idea of psychiatrists sending out the staff to round people up and arrest them.

The Minister is strengthening the role of gardaí but he is not entirely absolving the members of the centre. That is still there.

I understand that. If one examines the Mental Health Act, there is a provision — I am not quite sure where — that if people escape from the closed centre they were in members of that centre can search for them but those staff members should not be required to arrest someone. If that is what may happen under this Bill to get people back into hospital, that is fine but I do not like the idea of members of staff having to go and arrest anyone who may involuntarily leave a centre. Will this issue be examined again?

Under the Mental Health Act 2001 the clinical director may arrange for members of staff——

Which section?

I am referring to section 27 of the Mental Health Act. That is different legislation. The Garda Síochána is also given the power of arrest. The situation envisaged is that the officers or servants of a designated centre decide for themselves, having regard to any risks to their own safety, whether or not to carry out an arrest. Gardaí will have a positive obligation imposed upon them to arrest persons who may be unlawfully at large. That is not case under the Mental Health Act 2001. There is a stronger obligation imposed on the Garda Síochána under this legislation than under the 2001 Act.

Section 27(2) of the Mental Health Act 2001 states:

A member of the Garda Síochána may for the purposes of this section,

(a) enter if need be by force any dwelling or other premises where he or she has reasonable cause to believe that the patient may be, and

(b) take all reasonable measures necessary for the return of the patient to the approved centre including, where necessary, the detention or restraint of the patient.

Is that considered to be included in this legislation, in which case gardaí have less power? They cannot enter a premises.

Gardaí have that power under common law in any event.

Have they?

Amendment agreed to.
Amendment No. 141 not moved.
Government amendment No. 142:
In page 17, line 15, after "may" to insert ",".
Amendment agreed to.
Amendment No. 143 not moved.
Bill recommitted in respect of amendments Nos. 144 to 146, inclusive.
Government amendment No. 144:
In page 17, between lines 31 and 32, to insert the following:
14.(1) Where—
(a) a relevant officer certifies in writing that a prisoner is suffering from a mental disorder for which he or she cannot be afforded appropriate care or treatment within the prison in which the prisoner is detained, and
(b) the prisoner voluntarily consents to be transferred from the prison to a designated centre for the purpose of receiving care or treatment for the mental disorder,
then the Governor of the prison may direct in writing the transfer of the prisoner to any designated centre for that purpose.
(2) Where 2 or more relevant officers certify in writing that a prisoner is suffering from a mental disorder for which he or she cannot be afforded appropriate care or treatment within the prison in which the prisoner is detained, then the Governor of the prison may direct in writing the transfer of the prisoner to any designated centre for the purpose of the prisoner receiving care or treatment for the mental disorder notwithstanding that the prisoner is unwilling or unable to voluntarily consent to the transfer.
(3) The Governor of a prison who gives a direction undersubsection (1) or (2) shall cause—
(a) the original of the direction to be sent to the clinical director of the designated centre to which the prisoner the subject of the direction is to be transferred,
(b) a copy of the direction to be given to the prisoner before the prisoner is transferred to the centre,
(c) a copy of the direction to be sent to the Minister, and
(d) where subsection (2) is applicable—
(i) the original of the certification concerned referred to in that subsection to accompany the original referred to inparagraph (a),
(ii) a copy of that certification to accompany the copy referred to inparagraph (b), and
(iii) a copy of that certification to accompany the copy referred to inparagraph (c).
(4) A direction undersubsection (1) and (2) shall be sufficient authority to transfer the prisoner the subject of the direction from the prison in which the prisoner is detained to the designated centre specified in the direction.
(5) Where a prisoner who has been transferred to a designated centre pursuant to a direction undersubsection (1) refuses to receive care or treatment there for a mental disorder, then—
(a) if 2 or more relevant officers certify in writing that the prisoner is suffering from a mental disorder for which the prisoner should remain in the centre for the purpose of the prisoner receiving care or treatment for the mental disorder, the prisoner shall continue to remain in the centre for that purpose,
(b) in any other case—
(i) the prisoner shall be transferred back to the prison from which he or she was transferred to the centre, or
(ii) the prisoner shall be transferred to such other prison as the Minister considers appropriate in all the circumstances of the case.
(6) Wheresubsection (5)(a) is applicable to a prisoner transferred to a designated centre, the clinical director of the centre shall cause
(a) a copy of the certification referred to in that subsection to be given to the prisoner as soon as is practicable after the statement has been made, and
(b) a copy of that certification to be sent to the Minister as soon as practicable after the statement has been made.
(7) Where a prisoner transferred to a designated centre pursuant to a direction undersubsection (1) or (2) is required to appear in court, the prisoner may be transferred to and from court as so required.
(8) A prisoner transferred under this section—
(a) from a prison to a designated centre is deemed to be in lawful custody while being so transferred, while at the centre and while being transferred back to prison,
(b) from a designated centre to a court is deemed to be in lawful custody while being so transferred, while in court and while being transferred back to the centre,
(c) while being so transferred may be escorted by any members of the staff of the prison or centre, and
(d) while being so escorted by any such members is deemed to be in their lawful custody.
(9) In this section, ‘relevant officer' means—
(a) an approved medical officer, or
(b) a person registered in the General Register of Medical Practitioners established under the Medical Practitioners Acts 1978 to 2002.”.
Amendment agreed to.
Government amendment No. 145:
In page 17, between lines 31 and 32, to insert the following:
15. (1) Where a prisoner is detained in a designated centre pursuant tosection 14, the Governor of the prison from which the prisoner was transferred to the centre shall, as soon as it is practicable to do so, give notice in writing to the clinical director of the centre of—
(a) the date, if known, on which the prisoner will cease to be a prisoner, and
(b) any change to such date.
(2) Nothing in this Act shall be construed as prohibiting or restricting, on and after the date on which a prisoner who is detained in a designated centre pursuant tosection 14 ceases to be a prisoner, the voluntary or involuntary admission to or detention in any place of the former prisoner pursuant to the provisions of the Mental Health Act 2001 or any other enactment.
(3) Nothing in this Act shall be construed as prohibiting or restricting any steps being taken, before the date on which a prisoner who is detained in a designated centre pursuant tosection 14 ceases to be a prisoner, to ascertain whether or not the prisoner should, on or after that date, be admitted or detained as mentioned in subsection (2).”.
Amendment agreed to.

Amendment No. 146 is a Government amendment. I would like to point out a printing error in paragraph 3(a). The word “made” should read “make”.

Government amendment No. 146:
In page 17, between lines 31 and 32, to insert the following:
"16. (1) Where the Minister is satisfied that it is in the interests of justice to do so, the Minister may direct the Review Board to review the detention of a prisoner in a designated centre in any case where the detention arises pursuant to a certification referred to insection 14(2) or (5)(a).
(2) The Review Board shall ensure that the detention of a prisoner in a designated centre pursuant tosection 14 is reviewed at intervals of such length not being more than 6 months as it considers appropriate and the clinical director of the centre shall comply with any request by the Review Board in connection with the review.
(3) A prisoner detained in a designated centre pursuant tosection 14 may apply to the Review Board for a review of his or her detention and the Review Board shall, unless satisfied that the review is, in all the circumstances of the case, not necessary, conduct the review and—
(a) if satisfied that the prisoner is suffering from or continues to suffer from a mental disorder for which he or she cannot be afforded appropriate treatment within the prison from which the prisoner was transferred to the centre, refuse to make an order referred to in paragraph (b),
(b) in any other case, after consultation with the Minister—
(i) order the prisoner to be transferred back to the prison from which he or she was transferred to the centre, or
(ii) order the prisoner to be transferred to such other prison as the Minister considers appropriate in all the circumstances of the case.
(4) The Review Board may on its own initiative review the detention of a prisoner in a designated centre pursuant tosection 14, and subsection (3) shall apply to such review as if the prisoner had applied for the review under that subsection.
(5) This section shall, with all necessary modifications, apply to a prisoner detained in a relevant place before the commencement of this section as it applies to a prisoner detained in a designated centre on or after that commencement.
(6) Insubsection (5), ‘relevant place’ means any place which, on or after the commencement of this section, is a designated centre.”.
Amendment agreed to.
Bill reported with amendments.

Amendments Nos. 147 and 148 are related and may be discussed together by agreement.

Government amendment No. 147:
In page 17, to delete lines 32 to 37 and substitute the following:
"17. (1) Where in any proceedings for an offence the defence intends to adduce evidence as to the mental condition of the accused, notice of the intention shall be given to the prosecution within 10 days of arraignment for the offence.
(2) Where the notice referred to insubsection (1) is not given within the period specified in that subsection, then, without prejudice to any other provision of this Act, evidence shall not, without leave of the court, be adduced by the defence during the course of the trial for the offence concerned as to the mental condition of the accused.
(3) A notice referred to insubsection (1) shall be in such form as rules of court provide.”.

This amendment was originally proposed by Senator Terry on Committee Stage. The Minister indicated he would table an amendment on Report Stage to incorporate its proposals. The substance of the amendment is similar to amendment No. 148. However, it should be noted that amendment No. 147 does not contain any reference to the provision in subsection (3) of amendment No. 148, which deals with evidence of certain facts and the consequences for the accused person of not mentioning those facts when questioned, charged or informed and the consequent drawing of inference as a result.

The Minister does not believe that a provision of this character is appropriate in the context of this Bill. Such a provision has been found to be relevant in other branches of the criminal law. What is proposed by this amendment is that an inference on the issue of insanity can be drawn by the court regarding the conduct or demeanour of a person at an earlier stage. While that is a useful provision to have in respect of, for example, the silence of a person or the presence on the person of certain marks or forensic signs, in an area as difficult as this, I am not sure it is appropriate to mandate the courts to draw inferences. Therefore, the Minister does not agree with that part of the proposal. However, he is well disposed towards and is supporting the general principle proposed by the Senators, which is that there should be notice of evidence given when it is proposed to adduce evidence as to mental condition.

The Bill as drafted allows the question of sanity to be raised at any time, even after a trial has commenced. The plea of insanity has been open to abuse in the past. It is often raised at such a late stage as to call into question the reliability and the truth of the plea. Pleas of this nature often only arise when the legal team arrives on the scene.

If the mental condition of an accused person is an issue, it should be raised at the earliest possible moment and amendment No. 148 provides for this. However, it also provides for the introduction of evidence of mental condition at a later stage, if desired, with the permission of the court. In considering whether to admit such evidence, the court may draw inference from the lateness of such notification.

Section 14 contains an important provision. It effectively affords protection to those of unsound mind. This amendment is intended to provide further safeguards and to strengthen section 14, not to weaken it. I appreciate that the Minister has accepted part of the suggestions contained in the amendment.

Amendment agreed to.
Amendments Nos. 148 and 149 not moved.
Government amendment No. 150:
In page 18, line 16, to delete "treatment or care" and substitute "care or treatment".
Amendment agreed to.
Government amendment No. 151:
In page 19, line 11, to delete "treatment" and substitute "care".
Amendment agreed to.
Government amendment No. 152:
In page 19, line 12, to delete "care" and substitute "treatment".
Amendment agreed to.
Government amendment No. 153:
In page 19, lines 32 and 33, to delete "Commission" and substitute "Review Board".
Amendment agreed to.

I move amendment No. 154:

In page 19, line 42, to delete "Insanity" and substitute "Mental Disorder".

Due to a printing error, an asterisk appears before this amendment but it is not a Government amendment. Senator Tuffy's name was also omitted in error.

Does the Minister agree with the amendment?

Is Senator Henry pressing the amendment?

I am disappointed. I thought the Government agreed with me on this, but now I find that the asterisk on the printed list of amendments is in the wrong place.

The amendment has already been discussed.

The Minister said that there would be a surprise later on in the Bill. I withdraw the amendment.

Amendment, by leave, withdrawn.
Government amendment No. 155:
In page 20, line 7, to delete "consultant psychiatrist" and substitute "approved medical officer".
Amendment agreed to.
Government amendment No. 156:
In page 21, to delete lines 1 to 23 and substitute the following:
"SCHEDULE 2

Reference Number

Session and Chapter or Year and Number

Short Title

Extent of Repeal

(1)

(2)

(3)

(4)

1.

39 & 40 Geo. 3 c.94

Criminal Lunatics Act 1800

The whole Act

2.

1 & 2 Geo. 4 c.33

Lunacy (Ireland) Act 1821

Sections 17 and 18

3.

1 Vict., c.27

Criminal Lunatics (Ireland) Act 1838

Sections 2 and 3

4.

8 & 9 Vict., c. 107

Central Criminal Lunatic Asylums (Ireland) Act 1845

Sections 8 and 12

5.

38 & 39 Vict., c.67

Lunatic Asylums (Ireland) Act 1875

Section 13

6.

46 & 47 Vict., c.38

Trial of Lunatics Act 1883

The whole Act

7.

1924, No. 10

Courts of Justice Act 1924

Section 35

8.

1960, No. 27

Criminal Justice Act 1960

Section 8

9.

1976, No. 4

Juries Act 1976

Section 19(2)

10.

1999, No. 10

Criminal Justice Act 1999

Section 4A(1)(c)

"

It should be noted that there is an error in amendment No. 156, reference No. 4, where the Short Title should read "Central Criminal Lunatic Asylum (Ireland) Act 1845."

Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

The Minister or the Senators may make a statement, if desired.

I thank the Minister and his officials for the way in which they have dealt with the Bill. I cannot say that I am happy with it. We had an opportunity to take a step forward in criminal law legislation but, in fact, this legislation could be 50 years old or more. The situation outlined in the Henchy report is much more forward-looking than anything in this Bill.

However, I am glad that Bill attempts to remedy the situation regarding the transfer of prisoners, because it has become a national disgrace and is ridiculous. I hope what has been inserted into the Bill will be effective.

The Bill outlines the law, but lawyers cannot stand alone. They need to have the assistance of other people to operate the law. My deep concern about the Bill is that it is going to be very difficult in some areas for those who want to operate the law properly for our patients. There is the possibility of hired guns emerging, people who would be delighted to give the courts the run around, which will be very disappointing if it does happen. The Minister, as a barrister, is aware that the desire to have long court cases is growing and I envisage some parts of this legislation adding to that.

I am very disappointed about care and treatment. They should not be separated and the Minister's arguments on this are weak. I had hoped that my practical suggestion of the mental health tribunals being upgraded with more lawyers might be accepted. The review boards are a good suggestion, but it would be better to have people who are working in practice, even if only with patients who have no criminal convictions and who are not dangerous. It takes some time to set up review boards and it is preferable to have an experienced group of people to call from, rather than to set up thesede novo groups from time to time. However, I thank the Minister of State and his officials for their courtesy.

I thank the Minister of State and his officials. This legislation took a long time to draw up. It is two and a half years since we dealt with Committee Stage. I agree with Senator Henry in that it is disappointing the Minister of State was not more forthcoming and accepting, especially with regard to care and treatment.

The Minister praised Mr. Justice Henchy but it is a pity he did not take on board some of the points made by the judge as outlined by Senator Henry. The Bill has some good points, but it is disappointing that the Minister of State was not more amenable to amendments relating to care and treatment.

I thank the Minister and his staff for their work on this legislation. I thank the Minister of State for taking on board the amendments which I tabled on behalf of my colleagues. In particular I thank Senator Henry for bringing her expertise to bear today and on Second and Committee Stages. We must monitor this legislation to see if any changes need to be made.

I also convey my thanks to the Minister of State and his officials for bringing forward this important legislation. As has been acknowledged, Senator Henry's knowledge in this area was very much to the fore. This is an important area and hopefully the legislation will stand the test of time.

I thank Senators for their kind remarks regarding the Minister and his officials and also their industry in considering the legislation. I also single out Senator Henry for her extraordinary interest in the measure.

The Trial of Lunatics Act was enacted in 1883. While some time has elapsed since the Minister of State has given effect to the bulk of recommendations in Mr. Justice Henchy's committee, the judge is still with us and I wish him continued long life. A considerable time has elapsed since the Minister implemented those recommendations, but he has done so. Such legislation is being enacted for the first time in 122 years and must now go before the other House.

Perhaps it is the subject matter which makes it difficult to legislate too often in this area. The Trial of Lunatics Act 1883 caused its own difficulties. Queen Victoria was very unwilling to sign it because she objected to the idea that her potential assassin could receive a verdict of not guilty for reason of insanity. Therefore, a legal verdict of guilty but insane was applied. This was an absurdity, because the purpose of deeming a person insane is to excuse him or her of the offence and not suggest he or she is guilty but insane.

This is a difficult branch of the law and one of those areas where psychiatry and law meet but do not necessarily arrive at the same conclusions. As legislators, we must instil in the population a respect for the courts and personal responsibility. Psychiatry, with all its insights, could lead to an equation whereby there is no personal responsibility. It is a difficult line to draw, but the Minister has conscientiously tried to do so. He was happy to accept many of the constructive suggestions put forward by Senators in the course of the debate.

I understand the Cathaoirleach does not like contentious replies on Final Stage and I am very grateful to Senators for how they considered the measure. The Minister wants maximum care and treatment for those committed to his charge in the penal system as well as those who come before the courts and are found not guilty by reason of insanity. It has been accepted that once that verdict is brought in the person then becomes subject to the definition with regard to treatment as outlined in the legislation. It is important that the foundation is in place, though it is philosophically difficult to decide on the ideal foundation. However, the many practical changes, in particular those advocated by Senator Henry with regard to the transfer of persons between different institutions, would be extremely important in laying a legislative foundation for a more humane system of treatment for such persons.

Question put and agreed to.

When is it proposed to sit again?

Leath-uair tar é a deich maidín amárach.