Seanad Éireann debate -
Thursday, 6 Apr 2006

Vol. 183 No. 8

Criminal Law (Insanity) Bill 2002 [Seanad Bill amended by the Dáil]: Report and Final Stages.

Acting Chairman (Mr. Kitt)

I welcome the Minister of State to the House. This is a Seanad Bill that has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil, and that is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of those amendments and their proposed grouping. The Minister will deal separately with the subject matter of each related group of amendments. Senators may contribute once on each grouping, and I remind them that the only matters that may be discussed are the amendments made by the Dáil.

There is a typographical error in the list of amendments that I wish to bring to Members' attention. It is an error in the printed list of amendments made by the Dáil. Amendment No. 46 should read as follows: "In page 22, line 21, after "2005”,” etc.

Question proposed: "That the Bill be received for final consideration."

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

The amendments in group 1 have been grouped together because they arise in the main from drafting improvements suggested following discussions with the Parliamentary Counsel. I will explain their context for the benefit of Senators.

Regarding amendments Nos. 1 and 6, the Office of the Parliamentary Counsel advises that the provisions are not necessary in light of the new provisions in the Interpretation Act 2005. The definition of functions is now governed by section 21(2) and Part 2 of the Schedule to the 2005 Act. Subsection (2) provides that in an enactment that comes into operation after the commencement of this Act, a word or expression to which a particular meaning, construction or effect is assigned in Part 2 of the Schedule has the meaning, construction or effect so assigned to it. Part 2 of the Schedule defines what is meant by "functions", providing a new statutory definition for interpretation purposes of the expression "functions".

Dr. Henry

I am sorry, but it is a little difficult to hear the Minister of State.

Mr. B. Lenihan

I apologise.

Dr. Henry

The difficulty lies with me rather than with the Minister of State.

Mr. B. Lenihan

Shall I raise my voice?

Dr. Henry

Thank you.

Mr. B. Lenihan

I was explaining to the House that the amendment is a technical one following enactment of the Interpretation Act 2005. Amendments Nos. 1 and 6 simply harmonise this legislation with the Act. It is not necessary to include certain provisions in the legislation, since they are now governed by the Interpretation Act 2005, before whose enactment this legislation was drafted.

The purpose of amendment No. 3 is merely to clarify that references to a legal representative means solicitors or barristers practising in the State and to align a reference. Regarding amendment No. 8, the Parliamentary Counsel advises the Minister that there is no need to refer to the statutory basis of the Central Mental Hospital in the Bill, since section 39 of the Mental Treatment Act 1961 already provides that the Central Criminal Lunatic Asylum established pursuant to the Central Criminal Lunatic Asylum (Ireland) Act 1845 is to be styled alone as the Central Mental Hospital.

Section 39 was preserved from the repeal of the 1961 Act by section 6 and the Schedule to the Mental Health Act 2001. Amendments Nos. 9 and 11 provide for the insertion of the words "by order" after "children" to make it clear that the designation of centres by the Minister for Health and Children is to be done by way of orders to be made by that Minister.

On amendment No. 7, the Minister was advised by the Parliamentary Counsel that the new Interpretation Act governs the matter and there is no need for the phrase to be in the legislation.

Amendment No. 17 deals with the question of an assessment prior to a decision by the court to commit a person to a designated centre. This amendment was necessary because section 3(4) did not provide a power for the court to commit a person to a designated centre. Amendment No. 24 is a related amendment to secure the same purpose.

Amendment No. 19 corrects an incorrect reference to "section" as meaning section 4, it should be to the subsection, meaning section 4(3)(b). Amendment No. 20 refers to the precise part of section 5 which sets out the essential elements of the concept of diminished responsibility.

Amendments Nos. 22 and 23 clarify what is to happen once the appeal court confirms that a person is unfit to be tried. The Bill is currently silent on the matter. It now provides in this amendment that proceedings will be adjourned until further order and may, if the judge is satisfied, having considered the evidence of an approved medical officer and any other evidence that may be adduced that the accused person is suffering from a mental disorder and is in need of inpatient care or treatment in a designated centre, commit him or her to a specified designated centre.

Amendments Nos. 27 and 28 provide for the insertion of the word "and" instead of the word "or" in sections 3(6)(b) and (c) in order to bring them into line with the similar reference in section 3(6)(d).

Amendment No. 29 provides for the deletion of the words "for Justice, Equality and Law Reform" from the reference to the Minister as they are unnecessary because it is already defined in the interpretation section.

Amendment No. 31 clarifies that the reference to the "clinical director" is to the clinical director of a centre in which the patient is detained.

The purpose of amendment No. 32 is to remove the reference to indictable in section 12(3)(a). The correct reference should be to an offence because section 3 deals with summary offences, indictable offences triable summarily and indictable offences.

Amendments Nos. 33, 35, 37 and 38 tidy up some of the provisions and language of the Bill. The Minister agreed with Senators' comments that the word "disposal" is inappropriate and these amendments flow from the decision to delete the concept of disposal from the legislation. The wording which the Minister proposed at the time was for the word "disposal" to be replaced by the words "as to how the patient should be dealt with". Having reflected further on that change in consultation with the Chief Parliamentary Counsel, the Minister was still somewhat unhappy with the text. He therefore decided to replace the words "as to how the patient should be dealt with" with a more elegant drafting construction using the words "in relation to the patient". At the time when the original change was made in the Seanad, some other provisions which included the word "disposal" were overlooked. The Minister therefore took the opportunity on Committee Stage in the Dáil to change them by replacing them with the words "in relation to the patient".

Amendments Nos. 34 and 36 relate to lengthy discussions in this House on the question of "care and treatment" and "care or treatment". The Minister's preference was for "care or treatment" on the basis that it clearly means that a person can either be cared for or treated. The other formulation could be open to the interpretation that if a person was not capable of being treated, they should not be cared for either, and that is wholly unacceptable. The purpose of these two amendments was to bring the references to "care and treatment" and "treatment or care" respectively into line with the other references in the Bill to "care or treatment".

Amendment No. 39 clarifies that the reference to "centre" at the end of section 13(2) is to the "other" centre to which the patient is to be transferred. This is ambiguous in the current wording.

Amendments Nos. 40 and 41 substitute more correct terminology into sections 14(6)(a) and (b). This relates to the supplying of copies of the certification referred to in subsection (5) to the prisoner and the Minister. The current text uses the word “statement” when referring back. The more correct word is “certification” as there is no reference in subsection (5) to a “statement”.

Amendment No. 42 is a technical drafting amendment proposed by the Parliamentary Counsel. Amendment No. 43 is also a technical drafting amendment to make it clear that the review board is not reliant on the initiative of the Minister in reviewing detentions pursuant to certification, and that it can act on its own initiative in reviews of detention under section 14 generally.

Amendment No. 45 was discussed on Committee Stage in the Seanad on foot of a Fine Gael amendment and the Minister introduced an amendment to meet the points raised on Report Stage. However, the Minister was concerned at the use of the word "arraignment". It connotes procedures in a trial on indictment and accordingly its applicability in District Court proceedings was questionable. As that clearly is not what is intended, the Minister proposed this amendment to clarify the matter.

Amendment No. 46 makes it clear in the context of courts martial under the Defence Act 1954 that the two definitions of "mental disorder" must be borne in mind and that their application is dependent on the context in which they arise.

Amendment No. 48, which was proposed by Deputy Costello and accepted by the Minister following consultation with the Parliamentary Counsel, provides for the Irish version of the Mental Health (Criminal Law) Review Board to be inserted into the Long Title of the Bill. The Irish version is in fact already included in the establishment provision for the new board in section 10.

These amendments were technical in character and I thank Senators for their patience in allowing me to explain them.

Mr. Cummins

These are mainly drafting amendments that improve the Bill. The Minister of State has explained the contents of the amendments and Fine Gael accepts them.

Dr. Henry

I am not enthusiastic about the amendments made regarding "care or treatment" instead of "care and treatment". One of my main criticisms of this Bill is how it will be implemented by those who must use it. It should be aligned as closely as possible with the Mental Health Act 2001 because the same people will have to use this legislation and, to avoid mistakes, the closer things are, the better. Inserting "care or treatment" can also allow for the warehousing of people, which would be a great pity. I am aware of the argument that a person with Alzheimer's disease could not be treated satisfactorily but there are various attempts to treat all sorts of psychiatric illness so it is not a good argument.

There is a different definition of "patient" at the beginning of the Bill from further on, when "patient" is defined under the Mental Health Act 2001. I can see my psychiatrist friends having problems with this. I welcome, however, the fact that any mistakes regarding diagnoses made in lower courts can be rectified in upper courts. That improves the Bill.

The change in amendment No. 8 to the definition of the Central Mental Hospital, established in pursuance of the Central Criminal Lunatic Asylum (Ireland) Act 1845, is wise if we are to move the Central Mental Hospital from Dundrum. The 1845 Act states that it will be in Dundrum. However, I do not have a copy of it with me. Those are some criticisms I would make of the changes.

I am glad provision has been made for the transfer of patients back to prison. When I tabled my amendment on transferring patients from prison to court and from court to the Central Mental Hospital, the substance of which the Minister kindly accepted, I had forgotten about transferring patients back to prison if they were no longer in need of inpatient treatment.

As far as I can see from reading the Bill, the designated centre is still only the Central Mental Hospital. I am glad to note outpatient treatment is allowed. If the person was fit to be treated in what could be described as a "designated centre" in a psychiatric hospital as close as possible to his or her home, could he or she be sent there by the court? There would be a difficulty implementing this because a large number of psychiatric institutions do not have locked wards or enclosed areas which would enable them to accept such patients. I am not sure from reading the amendments and the Bill if the designated centre can only be the Central Mental Hospital. Could the designated centred include other psychiatric institutions? I am glad to note that for summary offences, in particular, people can receive outpatient treatment. Perhaps the Minister of State will clarify the issues raised.

Mr. B. Lenihan

On the question of the designated centre raised by Senator Henry, the position is a little wider than she envisages because section 3(1) provides that the Central Mental Hospital is designated as "a centre"— note the use of the indefinite article — for the reception, detention and care or treatment of persons or classes of persons committed and transferred thereto under the provisions of this Act. Section 3(2) expressly provides that the Minister for Health and Children by order may after consultation with the Mental Health Commission established under section 32 of the Act of 2001, designate a psychiatric centre as a centre for the same purpose. Other centres can be established, which is clear in the legislation.

There was a long discussion between the Senator and the Minister on the question of care or treatment. The Senator mentioned the need for consistency in the legal definitions psychiatrists must use under the 2001 Act and this legislation. In fact, the other legislation is not consistent on the question of care or treatment. At least the Minister has taken a consistent approach in this Bill and has laid down a standard of consistency for the purposes of this legislation which he believes meets the need to provide either care or treatment these persons.

Acting Chairman

I call on the Minister of State to speak on the subject matter of the amendments in group 2.

Mr. B. Lenihan

These amendments have been grouped together as they relate generally to the definition of the term "mental disorder" set out in section 1 of the Bill. On Committee and Report Stages of the debate on the definition of "mental disorder", amendments to provide for a definition of what precisely was covered by the term "intoxication" were tabled by Deputy Gerard Murphy on behalf of Fine Gael. Deputy Costello also tabled an amendment on the point on Report Stage. Their principal concern was to ensure the term "intoxication" embraced all intoxicants and not only alcohol. The Minister explained that "intoxicant" in law does not only mean alcohol but he undertook nevertheless to consider whether a specific definition should be inserted in the Bill. This was done by means of amendment No. 2 on the list before the House.

The Minister would like to acknowledge that Senator Terry also tabled an amendment on Committee Stage in this House on 7 April 2004 which is in very similar terms to the Minister's amendment which is drawn from the Criminal Justice (Public Order) Act 1994. At that time, the Minister thought it was better to leave the term undefined and Senator Terry withdrew her amendment. It only goes to show that persistence with this Minister can, on occasion, pay off and he wishes to formally acknowledge Senator Terry's perspicacity in this regard.

The Minister in his response to this amendment referred to the report of the Law Reform Commission on intoxication published in November 1995. Senators might be interested to know that the commission states that the definition of "intoxication" or "intoxicant", in the sense that either term involves the consumption of drugs as well as of alcohol, does not appear to have given rise to difficulty in any jurisdiction, including our own, studied by it in the course of its work nor was it raised as an issue by any of the experts who met the commission. In practice, intoxication is not accepted as a defence in Irish courts and the commission goes on to point out that, if anything, it has been found to be an aggravating factor.

The definition of "mental disorder" was constructed from the outset on the basis that there was no need to spell out that, in strictly legal terms, "intoxication" does not only mean a state of intoxication stemming from the consumption of alcohol.

On amendment No. 4, speaking generally for a moment, Senators will be aware there was much debate in this House and in the Dáil about the terminology and language used in the Bill and the Minister's position on the definition of "mental disorder" used in section 1, and the need to keep this separate from the definition of "mental disorder" in the 2001 Act. This reflects the basic policy underlying the Bill in this area that the ultimate resolution of the issue of mental disorder in the context of insanity in the course of criminal proceedings is one of law and not medicine. I am happy to state that one of the sternest critics of this approach, the Mental Health Commission, has now indicated that it accepts the need for this variation. It notes that the definition of "mental disorder" used in the Bill is identical to that used in the definition in the Mental Health Act 2001 when referring to issues of treatment. It accepts that the Bill uses a different definition when the matter is being considered during court proceedings.

However, on Committee Stage in the Dáil, the Minister said he would look again at one element of the definition of "mental disorder" in section 1 which referred to "mental handicap". The Minister believed the term "mental handicap" was not as pejorative a term as some might consider. Neither did he believe it was an exclusionary term. However, he agreed to the change proposed by Deputy Costello which was supported strongly by other Deputies and thus the appropriate reference now will be to "mental disability" instead of "mental handicap".

Dr. Henry

The clarification of "intoxication" was a good idea and is important. I understand the reasons for the definition of "mental disorder". It is good that throughout the rest of the Bill "mental disorder" is described as being within the meaning of the Act of 2001 because these people will have the protection of Part 4 of that Act when detained in a designated centre under this legislation. I understand the difference in the two definitions of "mental disorder". I am particularly glad that under section 3(3), Part 4 of the 2001 Act shall apply to any person detained in a designated centre under this legislation.

Ms Tuffy

I refer to the definition of "mental disorder" and the amendment tabled by my colleague, Deputy Costello. I thank the Minister for making the amendment. I do not believe the term "mental handicap" is a derogatory one. However, in modern discourse, it has become a term which is considered inappropriate and in light of that, it was correct to make that amendment; I appreciate the issue was taken on board by the Minister.

Mr. Cummins

I am glad the definition of "intoxication" has been included. I am also glad the amendment tabled by my colleague, Senator Terry, was eventually accepted by the Minister.

Mr. Kett

I thank the Minister for tabling that amendment. We discussed the term "mental handicap" when we dealt with the Disability Bill. It is politically correct to use proper language when discussing these issues. We have probably moved on by replacing the term "physically disabled" with "physically challenged". We can play with words at certain times.

Acting Chairman

Will the Minister of State speak on the subject matter of group 3, which contains amendments Nos. 5, 13, 14, 25, 26 and 30?

Mr. B. Lenihan

These amendments have been grouped together as they are technical in nature. They involve relocating definitions in the Bill, clarifying references and correcting typographical errors. Amendments Nos. 5 and 30 follow on from an amendment suggested by Fine Gael during Committee Stage in the Dáil. The Minister agreed at the time that the current construction was a little unusual in that "patient" is defined in section 12 although the term first appears in section 11 and is used again in section 13. Having discussed the matter with the Parliamentary Counsel, the Minister agreed to relocate the definition in section 1. The amendment to section 12 is consequent upon this change and simply provides for the removal of the definition of "patient" from that section. This was done by means of amendments tabled in similar terms by the Minister and Deputy Murphy.

On amendment No. 13, section 3(3)(a) makes it clear that where references to “the Court” arise, that is, by means of the use of a capital letter “C”, this is to be understood as meaning “the District Court”. A small letter “c” denoted courts in general. The court in question in the opening line of subsection 4(a) is the District Court. However, in line 3, page 6, there is an erroneous reference to “the court”, which, following the definition, means a court other than the District Court. The purpose of this amendment was to correct that.

Amendment No. 14 is a technical amendment following from the definitional issue I mentioned in respect of courts. Amendments Nos. 25 and 26 involve tidying up and clarifying certain expressions in the Bill. Amendment No. 25 is concerned with correcting the reference to "tribunal". This should be a reference to the "Review Board". Amendment No. 26 provides for the insertion of "Review" before "Board" so the references will be consistent with the reference to "Review Board" in the interpretation section of the Bill.

Dr. Henry

These amendments are mainly technical. I would have thought it would be wiser to have the same definition of "patient" in this Bill and the Mental Health Act. Given that this is the only opportunity I have to comment on the review boards, I must say they are totally different to those included in the Mental Health Act, not just in terms of their function but also in terms of how their members are appointed. People must apply to become members of the Mental Health Commission and are vetted to determine whether they are suitable to serve on the boards. However, the Minster has the power to choose the members of the review boards envisaged in this legislation. Worse still, he has the power to remove them. As we always say, we are not worried about the present Minister but that we may not always have as reasonable and rational a Minister in the future. Such a Minister might not be so careful and cautious in appointing individuals to the review boards and in removing them if they act in a way he does not consider desirable. I am therefore sorry the review boards are not more like those envisaged in the mental health legislation. Otherwise, I understand the minor amendments being made.

Acting Chairman

I ask the Minister of State to speak on the subject matter of group 4, which contains amendment No. 7.

Mr. B. Lenihan

Amendment No. 7 is similar to an amendment originally proposed by Labour Senators. Senators might recall that the issue of orders capable of being made by the Minister for Justice, Equality and Law Reform or the Minister for Health and Children under the Bill was raised in the Seanad and also in the Dáil by Deputy Costello. After much debate on the matter, the Minister agreed to include a relevant provision in the Bill. This shows how amenable to persuasion the Minister can be on occasion.

The relevant provisions in the Bill are sections 2, 9 and 23, which refer to designated centres, the establishment day for the new mental health (criminal law) review board and the making of commencement orders. This amendment requires that every order made under the Act must be laid before both Houses of the Oireachtas. The argument presented in the Seanad and Dáil in support of these proposals centred on Ministers being held accountable to the Oireachtas as regards the making of such orders. I understand the Minister commented previously on the other avenues available to Deputies for ensuring that Ministers are held accountable. However, as Deputy Costello put it in the Dáil, it is a caveat to ensure that we see what is happening. The Minister would support that principle.

Dr. Henry

I am sure everyone would agree this is a very good amendment. It is essential that such important orders are laid before the Houses of the Oireachtas. I am quite sure it was very wise to make the amendment.

Acting Chairman (Mr. Leyden)

I ask the Minister to speak on group 5.

Mr. B. Lenihan

On amendment No. 10, the issue of prisons, or parts thereof, being designated as centres was the subject of much debate in this House and it featured strongly in the debates at all Stages in the Dail. Senators might recall that the Minister decided to provide for the designation of a prison or part thereof in response to the Henchy committee recommendation for the establishment of special units for persons described as coming within a class sometimes referred to as psychopaths or sociopaths, but whom the committee considered more proper to identify as persons suffering from a persistent disorder, disability or personality, which manifests itself in abnormally violent or aggressive conduct. That such persons in these categories may not be amenable to treatment was also a factor.

Having listened to the points made on Committee Stage in the Dáil, the Minister tabled an amendment to provide for the designation of part of a prison only, rather than designating a whole prison, as a secure place of detention, in exceptional circumstances, for what would be a very violent person where no other place is suitable. However, the Minister decided to withdraw his amendment in light of further argumentation presented by Opposition Deputies in support of Deputy Ó Snodaigh's amendment and he agreed to accept the Deputy's amendment. Therefore, the provision allowing for the designation of prisons as centres no longer features in the Bill. Again, this shows how open-minded and reasonable the Minister can be.

In talking about amendments Nos. 10 and 44, I must emphasise that the Bill brings a new type of person within its scope. The fundamental difference is that these persons are in a different category from those who are unfit to be tried, or who have been found not guilty by reason of insanity, by virtue of the fact that they are innocent in the eyes of the law. These provisions, dealing primarily with the transfer of prisoners for the purpose of their care or treatment as between prisons and designated centres, are concerned with the onset of mental illness after conviction by a court for a criminal offence. Senators may recall they were included in the Bill by way of Report Stage amendments tabled in this House by the Minister. The intention was to place the existing outdated arrangements for the certification and decertification of prisoners arising from such transfers on a more modern statutory footing.

The need arose in the Dáil to include a further provision in the Bill to allow a clinical director of a designated centre to order the transfer of a prisoner, who is no longer in need of inpatient care or treatment at that centre, back to the prison from which he or she was originally referred. The matter was drawn to the Minister's attention by Dr. Harry Kennedy, clinical director of the Central Mental Hospital.

The lacuna in the Bill in this regard was at odds with the procedure currently in place, whereby two doctors at the Central Mental Hospital can decertify a ministerial order patient, which has the effect of returning the prisoner to the prison from which he was originally transferred. Clearly, it is important for the treating consultant psychiatrist to be able to discharge a patient when he or she no longer needs care or treatment.

In view of these factors, the Minister dealt with this matter by inserting a new section 17 into the Bill. Senators will note that consultation with the Minister for Justice, Equality and Law Reform is required before a transfer back can be effected. This is to ensure that the prison from which the prisoner was originally transferred is still the most suitable location for him or her.

Dr. Henry

Naturally I am delighted that the Minister accepted Deputy Ó Snodaigh's amendment and decided a prison was not a suitable place for someone being treated for psychiatric illness. I presume other changes will have to be made to the Bill because, under certain sections, it appears that persons could be treated in prison.

The governor, as the clinical director, would make clinical decisions — admittedly having been given advice by a medical practitioner — which does not seem to be in accord with amendment No. 10. This is a very important change and I am delighted it has happened.

While amendment No. 44 is also good, I have a slight concern. After a person had finished his or her sentence, perhaps having been in the Central Mental Hospital for some time, is the clinical director in the Central Mental Hospital or another designated centre required to send him or her back to prison or can the person be discharged? The Bill does not seem to make provision for such people to be discharged if they have finished their sentence. At that stage they are patients.

As the Minister of State mentioned JudgeHenchy, I am interested to see that the term "was unable to refrain from committing the act" is still used in section 5 and in another part of the Bill. I spoke at some length about the matter when debating the Bill here. Psychiatrists are not very enthusiastic about the idea that even if a policeman was standing at a person's shoulder he or she still could not refrain from committing an act. Unfortunately, I believe we will live to regret it. I believe the Minister was thinking about only very serious crimes. However, I could envisage people committing very minor crimes, like stealing a bottle of milk, claiming they were unable to prevent themselves from doing so and using this provision as a plea. When I raised the matter on Committee Stage, the Minister said that Judge Henchy was the greatest legal brain of the last century and I was not going to argue with him. Nevertheless, I hope we do not live to regret having left that plea in the Bill.

Mr. B. Lenihan

The Senator will be glad to hear that Judge Henchy is alive and well.

Dr. Henry

The Minister said that JudgeHenchy was the greatest legal brain of the last century. I do not know whether he believes there is another claimant this century.

Mr. B. Lenihan

He retired from the Supreme Court in the last century. He penned many erudite judgments which are devoured with great interest by jurists and legal scholars. He was undoubtedly a very distinguished judge. I have no doubt his capacity is unimpaired in that regard.

The Senator asked what happens if a person's sentence expires while they are in the designated centre, which is addressed in section 16 as follows:

Where a prisoner is detained in a designated centre pursuant to section 15, 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.

When the sentence expires the person is then free. There is no question of needing to be re-conveyed to a prison in some kind of formal act of delivery. The person is at liberty once his or her sentence has expired. Of course, the provisions of the 2001 Act can apply to a person in that position. They are dealt with by the civil legislation applicable to the care or treatment of such persons.

The Senator also referred to some outstanding superfluous references left in the legislation. The Minister is very anxious to have the legislation passed. The matter has been drawn to his attention. While they are now superfluous to the legislation, the Minister proposes to address this superfluity on another day in a different measure.

Acting Chairman

We now move on to group 6, relating to fitness to be tried. The subject matters are amendments Nos. 12, 15, 16 and 18.

Mr. B. Lenihan

These amendments have been grouped together as they deal with amendments introduced by the Minister relating to the issue of whether persons deemed unfit to be tried because they are suffering from a mental disorder should be treated on an outpatient basis.

The Minister pointed out on Report Stage in the Dáil that as drafted, the provisions of section 3 could be regarded as not going far enough to give the courts discretion to deal with a person on the basis that the degree of mental illness might not be serious enough to warrant inpatient care or treatment at a designated centre. Generally speaking, the criminal justice system is concerned with protecting the public, punishing criminals and administering the law in a fair and just manner. The Garda, prosecutors and the courts should strive to conduct their business in a way that protects the rights, not only of the victims of crime but also of especially vulnerable persons, including those who are unfortunate enough to suffer from mental disorders.

An important consideration in this regard is that no one with a mental disorder should be inappropriately held in police custody, or in a prison. The Minister is aware of concern that people with mental illness are prosecuted and imprisoned, often for relatively minor offences and in the Dáil he referred to recent research made public last December, which was conducted for the Prison Service by the national forensic mental health service at the Central Mental Hospital.

The Henchy report, on which much of this Bill is based, referred to the need to ensure that persons who, under the existing law, would pass, at least in the first instance, into a prison or other place of detention, should go instead to a designated centre, to become a patient, rather than a prisoner, generally under the ultimate control of the courts. Section 3 was drafted with that objective clearly in mind.

The report, however, also envisaged that the courts would have the power, based on expert psychiatric opinion, that outpatient treatment and community care should be the primary consideration, so that only those whose condition required it would be detained for inpatient services. The Minister's amendments addressed that possibility by allowing a court to decide, on the basis of expert opinion, whether the person charged whose fitness to be tried is an issue, could be referred for treatment or care on an outpatient basis.

The commission wrote to the Minister on this point, suggesting that he should provide for this additional form of court diversion away from prisons and places of detention. Overall, the section, as amended, will bring Ireland more into line with the relevant 1991 UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. Principle 7.1 is particularly relevant as it states, "Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives." Principle 9.1 provides that "Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others." The amendments will meet concerns expressed by the Department of Health and Children concerning the implications of the Bill for the provision of mental health services.

Of course, such conclusions would only be reached by the court on the basis of evidence provided by an approved medical officer that the accused person is suitable for such outpatient treatment and the Minister has provided accordingly in each of these amendments. Additionally, provision is made for the court to "make such order as it thinks proper" regarding the attendance of the accused person for such outpatient treatment. It will therefore be open to the court to include in the order any conditions to be met by the person, which the court considers appropriate pending the making of any further order. The imposition of such conditions will ensure that all matters relating to the case will remain wholly within the jurisdiction of the court.

I draw the attention of Senators to the terms of the amendments which provide for the outpatient option at section 3(3)(b)(ii) and section 3(5)(c)(ii). References are made in the relevant subparagraphs that “the accused person is suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001)”. The purpose of this provision is to ensure that in this context, the court will be able to consider the widest possible range of mental illnesses when it is considering the possibility of treatment or care in a designated centre on an outpatient basis.

The difference with the inpatient option is that by confining the definition in that regard to a "mental disorder (within the meaning of the Act of 2001)", the court will be considering only the more serious cases of mental illness which are not suitable for outpatient treatment or care. This is because "mental disorder", as the term is defined in section 3 of the 2001 Act, refers to the possibility of "the person concerned causing immediate and serious harm to himself or to other persons".

References are also made to "aggressive behavioural symptoms" or "seriously irresponsible conduct" in other parts of the definition. Clearly, in these cases the option of outpatient treatment or care should not be availed of and the relevant provisions have been drafted accordingly.

While on the subject of non-court disposal options, I also mention the provisions of section 12 of the Mental Health Act 2001, which have not yet been brought into force. This and subsequent sections in the Act deal with the powers of the Garda to take a person, believed to be suffering from a mental disorder as defined in section 3 of that Act, into custody and their subsequent referral and admission to an approved centre. The Minister has indicated that the provisions of section 12 of the 2001 Act should be commenced, now that the Mental Health Commission has been established. He will be in contact with the Minister for Health and Children in this respect. It is important that this considerable lacuna in our current arrangements is addressed. There may be a need to ensure that the Garda is fully trained in the operation of the new measures. The Minister will raise that issue with the Garda Commissioner.

Amendment No. 16 is a consequential amendment that arises from the amendments which provide that a court can refer a person for outpatient treatment. The reference to "committal", which was originally framed in the context of sending a person for inpatient care or treatment, is inappropriate in such circumstances.

Dr. Henry

Amendments Nos. 12, 15, 16 and 18 are extraordinarily important to the working of the Bill. When the people to whom we are referring run into trouble, quite often it does not relate to minor crimes or anything like that and they do not need inpatient treatment. If the original proposal had been pursued, it would really have clogged up the system. I am delighted that these amendments were made by the Dáil. I am pleased that the Minister of State has said that the Minister for Justice, Equality and Law Reform will consult the Minister for Health and Children. It is important that there is as much coalescing as possible to ensure that people are treated in an efficient and humane manner, rather than the manner in which they were treated in the past. These amendments will make a very big difference to the working of the Bill, which is the area I keep looking at. When people contact me to ask how we will work this legislation and how we will deal with it, I tell them that these provisions will make a very big difference.

Acting Chairman

Are the amendments in the sixth grouping agreed? Agreed. We will now move on to the seventh grouping, which relates to the Infanticide Act 1949. The grouping consists of amendments Nos. 21, 47 and 49.

Mr. B. Lenihan

The Minister, Deputy McDowell, mentioned on Committee Stage in the Dáil that he was considering whether to change certain aspects of the law on infanticide set out in the Infanticide Act 1949. Having examined the matter in consultation with the Office of the Attorney General, he proposed two amendments to the Bill on Report Stage to amend the 1949 Act. A further amendment made an appropriate change in the Long Title of the Bill to accommodate these provisions. The 1949 Act, like its 1938 antecedent in England and Wales, was based on the medical belief that mothers face special physical and psychological challenges shortly after giving birth. Such challenges include the condition loosely referred to as postnatal depression, the stresses inherent in being responsible for a new life, new financial and relationship pressures and, in some cases, the added strain of being in an abusive relationship or being a single mother in difficult circumstances. Those factors may, together or individually, lead to a mother killing her child. The 1949 Act created a separate crime of infanticide in recognition of the fact that a conviction for murder may not be appropriate in such circumstances. Although the legislation introduced an early form of the defence of diminished responsibility, it now looks somewhat outdated, especially in its references to "punishment" and to one of the conditions precedent for the defence relating to "the effect of lactation consequent upon the birth of the child". The Minister presumes that modern thinking places less emphasis on the physical element of this matter than on what may be termed "environmental factors", like those I have mentioned.

Amendment No. 21, which provides for the inclusion of subsection (3) in section 5 of the Bill, is in line with the recommendations of the Henchy report. It was pointed out on Committee Stage that the only existing recognition of diminished responsibility in our law is found in the 1949 Act, which simultaneously allows it to be used as a defence to murder and provides for it to be considered as an offence in its own right. The 1949 Act provides for the use of such a defence by a mother who kills a child under the age of 12 months, on the basis that the balance of her mind was disturbed when she did it because she had not fully recovered from giving birth to the child or, as I have said, because of the effect of lactation after the birth of the child. The Act allows juries to return verdicts of infanticide, rather than murder, in such cases, with the "punishment" being the same as that for manslaughter.

The 1949 Act allows the prosecution to prefer a charge of infanticide rather than murder in the first instance, whereas section 5 of this Bill, which deals with diminished responsibility, requires that the accused be charged with murder and that the defence of diminished responsibility be raised by the defendant. The Henchy committee favoured the retention of the 1949 Act on humane grounds, so that the accused would be dealt with as if she had been found guilty of manslaughter on grounds of diminished responsibility. The Minister's second amendment, No. 47, is in line with that approach. It also removes the reference to "punishment", which is objectionable in such unfortunate circumstances. That amendment also provides for the removal of the reference to "lactation" from the 1949 Act and its replacement with a reference to mental disorder resulting from the consequences of birth, within the meaning of this legislation.

Amendments Nos. 21 and 47 give rise to a consequential amendment to the Long Title of the Bill, which I mentioned some moments ago. That is the purpose of the Minister's amendment No. 49, which amends the Long Title to reflect that the Bill amends the Infanticide Act 1949.

Dr. Henry

The decision to introduce amendments Nos. 21, 47 and 49 was an inspired one. The provisions of the 1949 Act which are being amended, such as the reference to "punishment", were totally outdated from the point of view of the physiology of childbirth. I commend the Minister, Deputy McDowell, on introducing the amendments in question, which have made this aspect of the Bill much more reasonable.

Question put and agreed to.

Question proposed: "That the Bill do now pass."

Mr. Kett

I thank the Minister of State for his contribution this morning, which will allow for the implementation of this long-overdue and long-awaited legislation. Practising lawyers have probably been seeking this legislation for many years. A long time has passed since psychiatrists used to refer to their patients as "lunatics" or as suffering from "lunacy". It speaks for itself that such terms continued to be used in our criminal insanity legislation. It was ridiculous that people who thought they should be excused from criminal liability by virtue of a mental disorder had to seek redress under the Trial of Lunatics Act 1883. I am not surprised that practitioners in this area were demanding change. The comprehensive legislation that is about to be approved deals medically and legally with those whose states of mind render them unable to sit in a court of law. This Bill is very welcome for that reason. I thank the Minister of State and his officials.

Mr. Cummins

I join Senator Kett in thanking the Minister of State for his explanations of the amendments which were made in the Dáil. I thank his officials too. This legislation, which will bring us into the 21st century, is absolutely necessary. The language that was used in previous Acts has long since fallen out of practice and should not be mentioned nowadays. It is welcome that this Bill will bring the provisions made for insanity in our criminal law into the 21st century. I compliment the Minister, Deputy McDowell, on accepting constructive Opposition amendments and I thank his officials.

Dr. Henry

I thank the Minister of State, Deputy Brian Lenihan, and the Minister, Deputy McDowell, for their efforts in the compilation of this Bill, which has taken four years to process. I particularly thank their officials, who tolerated many queries from me during the progress of this important legislation. They showed extraordinary patience in their willingness to give explanations all the time. As our legislation regarding the treatment in the courts of people suffering from psychiatric illness was in such a dreadful mess, it was very important for us to do the best possible job in this Bill. I have mentioned the aspects of the Bill with which I do not agree, but I feel that the legislation as a whole will improve significantly the workings of the courts when dealing with people who are of diminished responsibility or are unfit to plead.

Ms Tuffy

I wish to add to the comments of the other Senators. I thank the Minister and his staff for their work on this legislation, particularly the changes made on foot of suggestions made by the Opposition, including the Labour Party, during the debates in both Houses. I commend Senator Henry on her contributions to this debate, to which she brought a great deal of expertise.

Mr. Cummins

Hear, hear.

Acting Chairman

I thank the Minister of State for coming to the House today and for bringing this Bill through.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

On behalf of the Minister for Justice, Equality and Law Reform and on my own behalf, I thank Senators for the time and effort they have devoted to this Bill and for their many contributions which served to improve it as it progressed through this House. I was involved in some of the debates in question in this House.

The Minister decided to initiate the Bill in this House because he believed that the reflective capacity of the Seanad could improve the legislation. That is reflected in the fact that the most significant changes to it were made during its passage here. The Minister wants to single out, in particular, Senators Henry, Tuffy and Terry, who put in a good deal of work on this Bill and made many positive contributions in the discussions. Senators will acknowledge that the Minister showed a willingness to take on board suggestions for amendments. It might have taken a number of attempts before he accepted certain amendments, but it goes to show that perseverance sometimes may pay dividends. I would not advocate perseverance in all cases as regards this Minister, however.

The Minister was happy to have been in a position to accept amendments to improve the Bill and to be able to deliver, following a promise of further consideration on a range of other points that merited serious attention. The Bill is a historic measure in a way for the following reasons: for the first time there are provisions in place for readily-accessible statutory rules of the test for insanity and related issues in the criminal law; new administrative arrangements will replace outdated and Byzantine rules for the transfer of prisoners who are mentally ill as between prisons and psychiatric centres; the introduction of the concept of diminished responsibility in cases of murder; new rules for courts to avoid referring persons who are mentally ill to prison and allow them, instead, to be referred for care or treatment to a designated psychiatric centre on an inpatient or outpatient basis, as appropriate, under the control of the court; and most crucially, the establishment in line with the European Convention on Human Rights of a new independent review board which will keep under ongoing and active review, with the power to release, the cases of all persons who are detained because of fitness to plead issues, or have been found not guilty by reason of insanity, or who have become mentally ill while serving sentences of imprisonment.

There are many other technical provisions in the Bill which go a long way towards improving and modernising in a most humane manner the complex and often tragic area of the criminal law. Some might argue that it has taken a long time for us to reach this point. As the consideration of this measure in Seanad Éireann and the other House showed, it took a long time to deal with this legislation, although it does not contain a substantial number of sections. That illustrates the complexity and difficulty of the judgments which we legislators must make in this particular process of the law.

I noticed that the Minister commented in the Dáil that over a quarter of a century had passed since the issue of criminal insanity was first dealt with by Judge Henchy in his report. This Bill substantially takes on board the recommendations of the committee chaired by Judge Henchy. In the circumstances, and in conclusion, the Minister and I want to take the opportunity to thank Judge Henchy and his committee for the seminal work they did when they produced the report in 1978. It is no exaggeration that in many respects it is just as relevant today as it was then.

Acting Chairman

On behalf of the House, I thank the Minister of State, Deputy Brian Lenihan, for his commitment and congratulate him on the passing of the Bill.

Question put and agreed to.

Sitting suspended at 12.35 p.m. and resumed at 1.30 p.m.