Criminal Law (Insanity) Bill 2010: Committee Stage.

Sections 1 and 2 agreed to.
NEW SECTION.

Amendments Nos. 1 and 2 are related and may be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 1:
In page 3, before section 3, to insert the following new section:
3.—Section 3 of the Act of 2006 is amended by the insertion of the following subsection after subsection (2):
"(2A) Notwithstanding the generality of subsection (2), the Minister for Health and Children by order may after consultation with the Mental Health Commission, designate a psychiatric centre as a designated centre for the reception and, where appropriate, detention, examination and, where appropriate, care and treatment of persons or classes of persons committed or directed thereto by the District Court under section 4(6)(a) for examination.".

Amendment No. 1 provides for the designation of psychiatric centres other than the Central Mental Hospital. On Second Stage I referred to the fact that an amendment was being considered in order to allow centres other than the Central Mental Hospital to be designated for the purposes of carrying out examinations in cases where an issue arises in respect of an accused person's fitness to be tried. At that point Senator Bacik referred to persons who might have committed less serious crimes and I gave a commitment to return to her on the issue.

The amendment will give the Minister for Health and Children the power to designate psychiatric centres for the examination of persons referred by the District Court under section 4 of the 2006 Act in cases where a question of fitness to be tried arises. Following consultation with the Department of Health and Children, the amendment was drafted in order to facilitate the Minister for Health and Children to provide that the Central Mental Hospital need not be used for examining persons who could be dealt with in psychiatric units elsewhere. I commend the amendment to the House and thank Senators for their proposals on the matter on Second Stage.

There are some technical difficulties with amendment No. 2, as it stands, in that it effectively would provide that the Minister for Justice, Equality and Law Reform should be in a position to designate centres under the legislation. Given that such centres are psychiatric centres, this power is appropriate to the Minister for Health and Children, not the Minister for Justice, Equality and Law Reform. Amendment No. 1 goes some way towards dealing with the issue amendment No. 2 seeks to address. As stated, it provides that the Minister for Health and Children can designate centres other than the Central Mental Hospital, to which the District Court can refer people for examination where their fitness to be tried is at issue. Accordingly, amendment No. 1 is focused on dealing with those who have committed less serious crimes. However, it is not limited to referrals from the District Court. It also covers referrals from the higher courts in serious cases where security might be at issue.

The use of centres other than the Central Mental Hospital for the examination and treatment of persons who come within the ambit of the 2006 Act is a matter that has been earmarked for examination by the Ministers for Justice, Equality and Law Reform and Health and Children in the context of the comprehensive review of the Act. I am not, therefore, in a position to accept amendment No. 2. I hope Senators will accept that amendment No. 1, by focusing on persons before the courts for minor crimes, goes a long way towards meeting the concerns raised.

I welcome the Minister of State and commend him for his strong and stated commitment to mental health reform. I am delighted he has accepted the principle behind the much more inelegantly drafted amendment in my name. I will not be pressing amendment No. 2 because amendment No. 1 deals with most of the issues I raised previously.

On Second Stage I expressed concern that fitness to be tried proceedings would still be heard in the District Court in respect of minor offences and that the Central Mental Hospital would be the only designated centre. However, amendment No. 1 provides that the Central Mental Hospital will no longer be the only designated centre, to which the District Court may refer cases. That is a welcome development but it does not go far enough. Why confine matters such that the District Court may only make referrals under section 4(6)(a) only? I suggest it might be more logical to extend this designation to any order under section 4. I, therefore, ask the Minister of State to reconsider the position prior to Report Stage. I will be willing, if necessary, to table an amendment on Report Stage in order to deal with the matter.

I am informed by those who work on the front line that if what I suggest is not done, all final orders made under section 4 — following assessment under subsection (6)(a) of that section — will lead to detention in the Central Mental Hospital, regardless of the need for such high levels of security. I am also informed that making it possible to commit a person to a less secure designated centre would be in keeping with European convention case law. I refer, in particular, to the case of Witold Litwa v. Poland in 2000, in which it was found that detaining anyone within the meaning of Article 5 of the convention was arbitrary and unlawful, unless less severe measures had been considered. I ask the Minister of State to consider expanding the scope of the provision in order that the Central Mental Hospital will not be the default committal centre.

With regard to Irish case law, there is the very tragic case of DH (a Minor)v. Ireland, in which an application was made to detain a minor in the Central Mental Hospital. Mr. Justice Kelly of the High Court refused to make that order and set out clear criteria which he indicated remained the correct statement of law in respect of clinical practice for doctors in the Central Mental Hospital. In so doing, he set out the approach of the courts in the judicial consideration of orders which directed the detention and treatment of persons in the Central Mental Hospital.

Amendment No. 3 in my name is of relevance to this issue and states, "The reference in this subsection to a court shall not include the District Court". In the first instance, I am trying to ensure the Central Mental Hospital will not be the default designated centre for all referrals. However, I would prefer a system, whereby the District Court simply would no longer have jurisdiction to make decisions under section 4(6) in respect of someone's fitness for trial.

I am grateful to the professionals working in the field who briefed me on this matter. Professor Harry Kennedy of the Irish Penal Reform Trust came to the Houses last November and provided Members with an extremely useful briefing on the court diversion scheme he was running out of Cloverhill Prison under the auspices of the national forensic mental health service. As the Minister of State will be well aware, under the scheme those with major mental illnesses who are charged with minor offences are identified and the courts or prosecuting gardaí are asked to defer drop the charges in order that defendants might be admitted to their local approved centres under the Mental Health Act. As a result, such individuals are removed from the criminal system.

Until now, if section 4(6) were used, the process would be prevented and defendants detained at the Central Mental Hospital. Amendment No. 1 will change the position somewhat and people will now be able to be detained in other hospitals, albeit under a different regime. Those working under the diversion scheme want it to be extended nationally in order that persons might be treated in the least restrictive way necessary for their own safety and that of others. They inform me that this would be in keeping with the Minister of State's stated principles in A Vision for Change.

I accept that I have strayed into a discussion on amendment No. 3. However, it is linked to amendment No. 1. I suggest we should remove fitness to plead proceedings in their entirety from the District Court. Indictable cases would go forward to the Circuit Court which could deal with this issue in a reliable and responsible way. I do not intend to cast any aspersions of those who work in the District Court. I have dealt with many criminal cases in that court and I am aware of the high level of pressure on the judges who operate and the lists which obtain in the court. There is a concern that if a defence solicitor asks a District Court judge to use section 4(6), it may be imposed in an insufficiently rigorous manner. In other words, if a defendant is unruly or drunk which can happen in the District Court, the judge may be asked to use section 4(6) and he or she may not have the time to engage in the detailed consideration required in this regard.

I appreciate the intention behind amendment No. 1. I support it in so far as it provides for other psychiatric centres, that is, local psychiatric hospitals rather than the Central Mental Hospital, to be designated. That is an extremely important change. As stated, however, the provision should be expanded to the other courts. It should not just apply to the District Court. In addition, I have a concern about that court's jurisdiction in this area and it is this matter which amendment No. 3 is designed to try to address.

I support amendment No. 1 but with the provisos outlined. I will certainly be tabling further amendments on Report Stage and ask the Minister of State to consider what I have said. He may already have been briefed on the matter by those who work on the front line but it is important that I raise certain points.

On Second Stage I indicated I did not intend to be adversarial and that my intention was to ensure the highest standard of practice. I certainly take the point raised and I recognise Senator Bacik's professional involvement in this area and I will not spend time arguing as I can see the points raised. On Second Stage I made the point that it was a very sound and sensible proposal to designate centres rather than the Central Mental Hospital. I take the point that the last thing to do should be to use the Central Mental Hospital as a default committal centre. I recognise the work of Professor Kennedy in the court diversion system and that is the atmosphere we are trying to create. I will consider Senator Bacik's suggestions prior to Report Stage when I and my officials have time to deal with the suggestions made. Everything we are trying to do in this area is for the benefit of the patient and to reduce the stigma attached by way of presenting to the Central Mental Hospital. Senator Bacik can take it that we are at one with her on her suggestions and through A Vision for Change we fully support the court diversion scheme and reducing stigma. We also recognise the need to have designated centres, for all of the points outlined.

Abolishing the power of the District Court to determine fitness to be tried has been suggested and there is a view that this could facilitate court liaison diversion for those charged with minor offences. When a case comes before the District Court and an issue of fitness to be tried arises, the judge could adjourn the case and the person could then be referred to the local psychiatric services. I have taken notes on the points raised and I will have time to discuss and take advice from officials in the Department and respond accordingly in the proper sense on Report Stage.

I am very much obliged to the Minister of State for his very full response. I look forward to hearing more on it on Report Stage.

Amendment agreed to.
SECTION 3.
Amendment No. 2 not moved.

I move amendment No. 3:

In page 5, between lines 17 and 18, to insert the following:

"(c) The references in this subsection to a court shall not include the District Court.".

I have already spoken a little about this amendment and the intention behind it, which is to remove the jurisdiction to deal with section 4(6) applications from the District Court in its entirety to facilitate the court diversions scheme currently in operation from Cloverhill. I take the Minister of State's point that a District Court judge could adjourn a case and I understand the preference of those working in the diversion programme would be not to have the District Court involved, which is the purpose of my amendment. Their second best preference would be to give the District Court the power to adjourn and obtain a court report from the Central Mental Hospital. I understand this was introduced in the Henchy report in a model criminal law (insanity) Bill. This would be a way of finding whether the Central Mental Hospital was the appropriate designated centre.

A further suggestion to deal with this difficulty of the District Court making these orders in too many cases would be that evidence must be heard from a consultant psychiatrist and the staff of the hospital or local approved centre that would admit the person, and that is now facilitated through the acceptance of amendment No. 1. I already referred to the case of DH (a Minor)v. Ireland and others in which Mr. Justice Kelly established that no judge can force a doctor to admit somebody thereby preventing the admission of another person who is more ill and no judge can order a doctor to treat someone contrary to his or her conscience.

Having considered the issue, if the Minister of State still feels that the District Court should retain this jurisdiction there might be other amendments that should be made to ensure rigorous enough scrutiny of the use of the section 4(6) jurisdiction by the District Court. I know the amendment is supported by all of the psychiatrists working in the prison psychiatric in-reach and the court liaison service and by the Irish College of Psychiatrists. I am also told that any amendments which encourage the admission of persons charged with minor offences to the Central Mental Hospital may have very severe consequences for those persons. Sending a person with schizophrenia charged with a minor offence to the Central Mental Hospital is a disproportionate response. I am told there would be a catastrophic outcome to sending people with an intellectual disability to the Central Mental Hospital where they are unlikely to recover. Several such admissions have been made to the Central Mental Hospital and it is a real concern. The Minister of State is well aware that the Central Mental Hospital has a capacity of 93 and its beds are full at any one time, generally with persons for whom a special verdict has been reached in cases involving very serious offences.

Will the Minister of State consider removing the jurisdiction from the District Court under this section in its entirety? If he is not minded to do so, will he take on board some of the other suggestions made to him by professionals working in the area, and which I have just put on the record, to ensure we will not overuse the power before the District Court and that it will not be used in a disproportionate or catastrophic way in respect of persons who should not be detained in the Central Mental Hospital or local psychiatric centres under the criminal law? We all need to ensure that whatever amendments and changes are made in this legislation, they facilitate the rolling out of the national diversion programme, which is clearly in keeping with the model in A Vision for Change and with proved best practice internationally.

Senator Bacik has made an interesting contribution on this and I can follow some of the arguments she made. Obviously, she has personal profession expertise or experience in the area, which I do not. However, it strikes me that if we were to remove the jurisdiction of the District Court there could be a delay in processing these cases. When matters go to the Circuit Court there are frequent adjournments for various reasons and I am concerned that if jurisdiction is removed from the District Court such delays could involve public safety issues. Will the Minister of State factor this into his consideration when he examines the matter? The Senator has made cogent arguments in favour of her amendment but I have concerns, and we need to be satisfied on these concerns, that the court process can deal efficiently, effectively and expeditiously with the cases. The cases do not relate to the individual only. Obviously there are personal implications for the individual involved but there are also societal implications and they need to be balanced in any decision or judgment call made by the Minister of State.

I fully support the amendment. Senator Bacik has made a very reasoned argument and I ask the Minister of State to consider it prior to Report Stage.

I thank Senator Bacik for not moving amendment No. 2 and I make a clear commitment to deal with these issues on Report Stage.

It is fair to state that we do not come to the House to oppose amendments. Far from it; we want the completed legislation to have the central tenets of what is proposed and suggested in A Vision for Change and that is from where I begin. Senator Bacik made reference to the involvement of the Irish College of Psychiatrists and this must be taken into consideration as it comes from a position of experience and care.

I will take into consideration the suggestions made and we have time prior to Report Stage to do so. The effect of the amendment would deny the District Court the power to refer a person for examination to a designated centre. I want Members to be aware of that implication. This would deny to the court the opportunity to receive a report from a consultant psychiatrist on whether a person is suffering from a mental disorder and in particular whether a person is in need of patient care and treatment in a designated centre. The power of the courts to have such reports before them prior to considering depriving a person of liberty is considered necessary to comply with the requirements of the European Convention on Human Rights. It is also required to be consistent with provisions of mental health legislation. In that context, persons dealt with in the District Court are just as entitled to the protection of such rights as persons dealt with by the higher courts. In that context, I find it difficult to accept the amendment. However, this is not to suggest I will not take into account this suggestion. While I am rejecting the amendment, I do so with the proviso that I will take into account what has been mentioned in the House rather than ignoring the solid statements of support for the amendment which I will take into consideration.

I again thank the Minister of State for indicating he will reconsider this issue before Report Stage and thank other Members for their contributions. In response to Senator Walsh, the issue of delay is a concern. One must also consider the societal considerations, the protection of the public and so on. However, the matters pertaining to the District Court are minor and the difficulty has been the lack of a considered way to deal with such applications before the District Court. It is almost the other problem, that is, too speedy a resolution equally can lead to difficulties, certainly in European convention case law. As I stated, amendment No. 1 will certainly help matters in that it allows psychiatric centres other than the Central Mental Hospital to be used by the District Court for reception, detention, examination and so on. However, an alternative to what is proposed in amendment No. 3 would be to provide more specifically that if the District Court is to retain this jurisdiction, before a section 4(6) order can be made in the court, evidence would have to be heard before admission from a consultant psychiatrist on the staff of whichever designated centre was being directed by the court. It would be the Central Mental Hospital or whatever local psychiatric hospital was being so designated. This would be in keeping with the provisions of DH (a Minor)v. Ireland and others and with European case law. I refer, in particular, to the 1979 case, Winterwerp v. the Netherlands, in which it was provided that a medical recommendation was essential when committing anyone to a psychiatric hospital because objective evidence of a true mental disorder based on objective medical expertise was required to justify the deprivation of liberty. I accept there are provisions dealing with emergency cases under the Mental Health Act. However, the Mental Health Act 2001 was drafted specifically to comply with European Convention on Human Rights case law and Article 5. It also was drafted to comply with United Nations principles for the protection of persons with a mental illness, Article 20 of which provides that involuntary placement, involuntary treatment or the extension thereof should only take place on the basis of an examination by a doctor, having the requisite competence and experience, and in accordance with valid and reliable professional standards. Section 3, as worded, does not require that the court take this evidence. It states it may request evidence.

Perhaps I have strayed somewhat from the contents of amendment No. 3, but when debating it, it is important to be clear about what the District Course is doing. As drafted, section 3 states, "In a case to which paragraph (a) relates, the Court may request evidence of an approved medical officer”. If, contrary to my proposal, jurisdiction is to be kept by the District Court, at the very least the court should be required to hear evidence from the approved medical officer by substituting the word “shall” for “may”. Preferably, such a medical officer should be from the designated centre being directed by the District Court to become involved in this procedure under the Government’s amendment. If the Minister of State does not intend to accept amendment No. 3, I ask him to consider other ways of amending section 3 to ensure a tightening up of the manner in which the District Court deals with this issue. This also applies to the other courts but the particular concern is about potential misuse of the section 4(6) procedure by the District Court, which is partly to do with pressures of time, the volume of work and the fact that these are minor matters being dealt with before the court.

I reiterate that I am prepared to take suggestions on Committee Stage. I also may take advice from the Irish council. In this context, I will have time before Report Stage to take into account and consider all of the proposals made. I again make the point that this is not the kind of legislation on which one simply votes down amendments. It is a matter of trying to come to the correct response, taking into account the Government's clear commitment given in A Vision for Change regarding mental health reform, of which this is part. While I will not accept the amendment, I will consider the suggestions made and use the time to come to a proper response on Report Stage.

I am grateful to the Minister of State and will not press the amendment at this point. However, I will revert to it on Report Stage.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.

I move amendment No. 4:

In page 8, line 48, to delete "A person is in material breach of his or her" and substitute "The clinical director may revoke a".

This amendment relates to the provision in section 7 that inserts new sections 13A and 13B in the 2006 Act. As drafted, section 13B(2) states, "A person is in material breach of his or her conditional discharge order where the clinical director on reasonable grounds believes that the person is in breach of one or more conditions of his or her conditional discharge". The purpose of the amendment is to change the somewhatAlice in Wonderland-like quality the Labour Party believes is attached to the current wording which is reminiscent of Lord Atkin’s judgment in Liversidge v. Anderson. It states a person is in material breach where the clinical director believes a person is in material breach. Instead, the amendment proposes the deletion of the words, “A person is in material breach of his or her” and their substitution with, “The clinical director may revoke a”. The amended provision, therefore, would read, “The clinical director may revoke a conditional discharge order where the clinical director on reasonable grounds believes that the person is in breach”. Otherwise, this would be a meaningless section because it would simply repeat the test. Consequently, the Labour Party considers that the amendment would tighten the drafting somewhat. I await the Minister of State’s response to this proposal. It would not result in a material change to the subsection.

While it would not result in a material change, unfortunately, it would unravel the entire structure of the section. Section 13B(1) specifically uses the deeming approach to the revocation of a conditional discharge order where there is a material breach of the order. I note that section 13B(2) provides that a person is in material breach of an order where the clinical director on reasonable grounds believes the person has breached one or more conditions and is either a danger to himself or herself or others or is in need of inpatient care treatment. I suggest there is no need for the change proposed in the amendment. More worryingly, it would remove the definition of the term "material breach" which is used throughout the section. Removing it would unravel the structure of the section as a whole. For that reason I do not propose to accept the amendment.

While I take the Minister of State's point that it might have an effect on some of the other provisions, it might be more accurate and honest for the clinical director to be obliged to take responsibility for revoking the conditional discharge order. Under the wording I have tabled, the position would be more honestly stated.

On the section as drafted, it appears as though the private belief of the clinical director will be enough to have a person in breach; whether this would pass constitutional muster is open to question. This might be worth considering. While I will not press the amendment at this stage, I would like to hear a little more on the issue on Report Stage. I am somewhat concerned about the wording, whereby a person is in breach when the clinical director believes so, whereas what the Bill really is trying to do is to give the clinical director the power to revoke a conditional discharge order. Consequently, it would be more honest to say this.

I can see the sense in the suggestion that we give the clinical director more authority and allow for more involvement. Before Members return on Report Stage, I will consider the level of unravelling that would be required in respect of this suggestion. Is that okay?

Yes. I thank the Minister of State.

I must determine the overall implications before tabling an amendment. Would that be okay?

Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."

Before we move away from section 7, I have something general to say regarding section 13B. On Second Stage, I stated my full support for that section. It is also supported by everyone working in the field. The idea of a conditional discharge has often been suggested since the passing of the 2006 Act, so this is an important and welcome change.

I wish to put down a marker for Report Stage. I have not teased out how I would amend the section, but I may table an amendment. Regarding section 13B, is there any way to address the problem of conditionally discharged persons who leave the jurisdiction? The Minister of State will be aware of the well known case of John Gallagher. Previously, there have been difficulties in that people who were found not guilty by reason of insanity or guilty but insane under the old law left the jurisdiction. Do they fall under the remit of extradition treaties or the European arrest warrant? Should or could there be a specific provision in section 13B? Perhaps it is beyond the scope of this legislation and would be more appropriate for the fuller review mentioned by the Minister of State. I just wanted to flag this point during our debate on section 7.

I would presume under the European arrest warrant, but I do not want to assume at this stage in the debate. I must discuss it with the Minister for Justice, Equality and Law Reform in terms of what safeguards could be included in which legislation or even under what aspect of the justice portfolio it would fall. I would presume under the European arrest warrant, but I ask the Senator to allow me to be more definite and to revert on Report Stage.

I have a further technical point to raise about section 7. On page 10 just before the new section 13C, the Bill states: "the Board may exercise all the powers available to it under section 13 in relation to that patient". Should this provision not also refer to sections 13A and 13B? The current provision might not be appropriate.

Including a reference to section 13A or section 13B might be possible.

I am referring to line 9 on page 10. It is a drafting point that I did not notice previously, so I apologise for not raising it in an amendment.

I have been advised that we can examine the matter for Report Stage.

I thank the Minister of State.

Question put and agreed to.
SECTION 8.
Government amendment No. 5:
In page 10, line 38, after "Schedule 2" to insert "to the Act of 2006".

I commend this technical drafting amendment to the House.

I thank the Minister of State for adopting this Labour Party amendment to redress an omission in the section.

Amendment agreed to.
Section 8, as amended, agreed to.
Section 9 agreed to.
SECTION 10.

Amendments Nos. 6 and 7 are related and may be discussed together with the agreement of the House. Is that agreed? Agreed.

I move amendment No. 6:

In page 11, subsection (1), line 8, to delete "(Insanity)" and substitute "(Mental Disorder)".

I raised this issue on Second Stage when I discussed the way in which the philosophy of the law on the treatment of persons with mental disorders in the criminal system has evolved. Generally speaking, the treatment of persons with mental illness has moved from an incarceration model to a welfare model and then to a rights model. A great deal of civil legislation has reflected this change in thinking and the language contained in mental health legislation has been carefully crafted. It is unfortunate that in terms of the treatment of persons with mental disorders in criminal law, we are still using the highly outdated word "insanity". I hope the Minister of State will be sympathetic to my point. It was unfortunate that the Criminal Law (Insanity) Act 2006 used that word, but it is even more unfortunate that we are continuing to use the word in a 2010 Bill amending the Act.

The Minister of State may claim this is a matter for a broader review, but we could have changed the terminology in this Bill. For that reason, I have tabled these amendments. "Insanity" is not a word that would ever be used nowadays in psychiatric services. It is not a word that we in the criminal courts would use except for the fact that we must use it when speaking to clients or among ourselves about the particular defence that is still known as insanity. It is unfortunate.

Other language is clearly available. I have suggested the term "mental disorder", which is used in our mental health legislation. Section 4 of the 2006 Act on the fitness to be tried proceeding refers to mental disorders rather than insanity. Section 5 uses the not guilty by reason of insanity terminology, albeit with a definition of insanity that uses more modern language.

I do not know why we are still using this language in up-to-date legislation. This amending Bill would have been an ideal opportunity to try to change the language and make it more reflective of current practices when dealing with people with mental disorders. The Minister of State referred to the need to reduce stigma, a statement with which I fully agree. Unfortunately, the continued use of the word "insanity" heightens the stigma with which people are treated. Neither does it do anything for the victims or for broader society. We must be mindful when discussing criminal law matters that we are also discussing victims and society. The wider public recognises the word "insanity" as outdated when dealing with people with mental disorders in any context.

I thank Senator Bacik again. The name change suggested by the amendments might appear on the face of it to be a simple matter but it raises complex and fundamental issues. I might take some time to go through a few of them.

The word "insanity" was used in the title of the 2006 Act because it is the correct description of that Act's contents. The Act's definition of "insanity" was drafted in light of judicial authority over the precise meaning of insanity and the circumstances in which the finding of insanity would excuse a person from criminal liability. The House will be aware that the issue was extensively debated during the passage of the Act through the Oireachtas. That Act's gestation period was ten years, during which time this issue was examined in great depth. I mention these long periods of deliberation to stress the complexity of the issues that have now been raised.

The plea of insanity in law is an excuse rather than a condition in that it is a factor that excuses liability for the commission of a crime. Our law places the matter firmly within legal parameters directly related to personal responsibility for one's actions. In this scenario, medical evidence will be influential, although not decisive. This means that an accused person who has been diagnosed as mentally insane may fail to satisfy the criteria for criminal insanity in law.

Section 5(1)(b) of the 2006 Act provides for the verdict of not guilty by reason of insanity. The point I am making is that one might be suffering from a mental disorder, but it must be such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she did not know the nature and quality of the act or, in other circumstances, did not know that what he or she was doing was wrong or was unable to refrain from committing the act.

This provision appropriately emphasises the fact that the issue for the court is fundamentally one of legal responsibility rather than psychiatric responsibility. We do not want a jury to arrive at a view whereby any mental disorder, regardless of how trivial it might be, could provide grounds for acquittal. Our concern is that the threshold could be lowered. I am particularly interested in hearing the Senator's response to this point. The 2006 Act provided a high threshold and it is important that psychiatry is not perceived as a get-out-of-jail-free card for people in circumstances in which public confidence in the administration of justice could be adversely affected. Changing from "insanity" to "mental disorder" could send a signal that the threshold is being significantly lowered. That is our greatest concern. The criminal law is the main focus of the 2006 Act and it would be misleading to change the Title to refer to mental disorder. The term is primarily used to decide a person is in need of care and treatment in a psychiatric hospital and is the primary focus of the Mental Health Act 2001. While there is an aspect of that focus in the 2006 Act it is not the primary focus. It would be undesirable to introduce any doubt or uncertainty into this area of the law.

The purpose of the Bill is to deal with two issues which have arisen in relation to the operation of the 2006 Act and which require urgent attention. The Bill is not a suitable vehicle to address fundamental issues. If such issues require discussion it would be more appropriate to have them discussed in the context of the planned comprehensive review of the 2006 Act, which I have already committed myself to commencing later this year. It is important that we stick to our time commitments. I will, however, be happy to bring the issues raised by Senator Bacik to the attention of the Minister for Justice, Equality and Law Reform and to ask him to consider them in that context. At this point I cannot accept the amendment but I assure Senator Bacik that the matter will be considered at the appropriate time. I will bring that review to the House during this year.

I bring to the attention of the House the need for another name change. Following the making of the necessary order, the Minister for Justice, Equality and Law Reform will lose responsibility for equality issues. I propose to bring in an amendment to effect this change on Report Stage, if the order has not been made by then.

I thank the Minister of State for his response. I know the 2006 Act had a long gestation period. It is a shame that, during that period, a better term was not found to replace the term "insanity". I accept what the Minister of State says about mental disorder. That may not be the appropriate term because it may lower the threshold of guilt. I am well aware of the genesis of the defence of insanity in the 18th century Foster-Hatfield case and the 19th century M'Naghten rules.

We have changed some of the language of this area. We no longer talk about the trial of lunatics, which term was routinely used in the 18th and 19th centuries when this law was being evolved. We could move on from the use of the term "insanity". A better term might be one specific to this area, unlike the term "mental disorder" which, as the Minister of State said, is used elsewhere and has other meanings. We might speak of the mental incapacity special verdict. The question is one of capacity. The definition in section 5, which is taken from the M'Naghten rules and from our own case law, such as the Doyle case, is about lack of capacity. A term which encompasses that would be more appropriate than "insanity".

I accept that it is not a simple matter of changing the name of this Bill. A more comprehensive change throughout legislation is required. I am delighted this is to be considered in the review.

We introduced a fundamental change in section 6 of the 2006 Act, which includes the diminished responsibility provision. This allows someone charged with murder to be convicted of manslaughter instead, on the basis of diminished responsibility. We have already made some fundamental reform to the law. Other fundamental reform could be carried out and it would be of great benefit in lowering stigma.

I would be grateful for any further views the Minister of State might have on Report Stage. I accept that this is a more complex matter than can be done in this one Bill. However, I will press the matter on Report Stage because it is an important point.

I have to accept that in a ten year period we did not examine the implications of change. However, as the opportunity presented itself we moved from speaking about the trial of lunatics to referring to mental incapacity. The comprehensive review of the Bill will present an opportunity for further change. Between now and Report Stage I will also have an opportunity to examine the implications of the proposal with the Minister.

I thank the Minister of State.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 11, between lines 9 and 10, to insert the following subsection:

"(2) The Act of 2006 and this Act may be cited together as the Criminal Justice (Mental Disorder) Acts 2006 and 2010.".

Amendment No. 7 makes the same point. Its purpose is to ensure that the 2006 Act will be referred to in future as a part of a number of Acts to do with mental disorder rather than as an insanity Act. It is part of the proposal we are making to shift the language away from the outdated 18th century notion of insanity towards a 21st century idea of mental disorder. There may be a better term. Something more specifically to do with this defence might be appropriate. Nevertheless, I would like to see us changing from the use of the term "insanity".

This amendment is widely accepted by all those who work in the criminal justice and psychiatric areas. I have been told that people are very keen that we move from this outdated language.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Title agreed to.
Bill reported with amendment.

When is it proposed to take Report Stage?

Ag 2.30 p.m. ar 20 Aibreáin 2010.

Sitting suspended at 12.40 p.m. and resumed at 1 p.m.