Criminal Law (Insanity) Bill 2010: Report and Final Stages

I welcome the Minister of State, Deputy John Moloney, to the House. I remind Members that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. Each amendment on Report Stage must be seconded.

I move amendment No. 1:

In page 5, between lines 27 and 28, to insert the following:

"(c) The references in this subsection to a designated centre shall include any other suitable place of treatment specified by the Minister for Health and Children.”.

I welcome the Minister of State, Deputy John Moloney. I thank him for his continuing interest in these issues. We had a very good debate on Committee Stage. I have tried to change the amendments by taking account of the Committee Stage debate when submitting them and not simply returning with the same amendments on Report Stage. I note I am the only person with amendments at this point but Senator Quinn has supported amendment No. 5.

Amendment No. 1 is a proposed amendment to section 4 which refers to the designated centre. Once again, this relates to an amendment which was debated on Committee Stage and the Government at that point had an amendment which is now inserted in section 3. I am delighted the principle was accepted by the Minister of State on Committee Stage that other psychiatric centres could be designated other than the Central Mental Hospital. This is a very important principle. This amendment would add to that flexibility by allowing in this case the Minister for Health and Children to designate another suitable place of treatment. This amendment cites the Minister for Health and Children to take account of a point made by the Minister of State, Deputy Moloney, on Committee Stage when he suggested that if this were to be done, it should not be the Minister for Justice, Equality and Law Reform who does the designating. I accept that section 3, as amended, meets some of the concerns we had about allowing designated centres other than the Central Mental Hospital, for example, local psychiatric hospitals, to be designated centres. This amendment would increase that flexibility.

I second the amendment.

Before dealing with the amendment I wish to recognise the contributions made on this Bill. Rather than making a glib comment later in the debate, when I refer to wider consideration at a later stage, I mean this year rather than down the road. I do not wish Senators to think I am trying to delay dealing with any of the issues. We need to deal with issues which require urgent legislation and for the designation of centres other than the Central Mental Hospital. I assure Senators that most of the wider issues will be dealt with later this year.

The Bill was amended on Committee Stage to give the Minister for Health and Children the power to designate psychiatric centres other than the Central Mental Hospital 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. This amendment goes further by providing that higher courts may send persons to be examined in centres other than the Central Mental Hospital. However, such cases can involve serious offences and, therefore, there may be security risks and issues involved. This amendment would involve a far-reaching change to the current provisions, requiring careful examination. The Bill's purpose is to make several amendments to the Criminal Law (Insanity) Act 2006. These have been kept to a minimum because the legislation is urgently required to deal with the issue of conditional discharge of patients from the Central Mental Hospital. The wider issues related to the 2006 Act may warrant examination but the intention is to deal with them in a planned comprehensive review of the Act to be carried out by the Department of Justice, Equality and Law Reform in consultation with the Department of Health and Children later this year. The issues raised by this and other Report Stage amendments would be more suitably considered in this review.

I indicated on Committee Stage I would bring these matters to the attention of the Minister for Justice, Equality and Law Reform and I am pleased the Minister has agreed these issues will be on the agenda for examination in the course of the review. Accordingly, it would not be appropriate to provide for the amendment in this Bill and, therefore, I cannot accept it.

I thank the Minister of State for a full response. I am glad a wider review of the legislation will be undertaken later this year and that the important issue this amendment raises will be dealt with by it.

I have a difficulty with the Committee Stage Government amendment to section 3 although I am glad that, in principle, centres other than the Central Mental Hospital may be designated. The reference, however, to the District Court, which I have tried to address in amendment No. 2, is regrettable because it is not the appropriate place to make an adjudication on fitness for trial. While not being critical of any specific court or judge, the District Court is pressured for time and the experience of those working on the front line is that judges will tend to use the fitness to stand trial procedure in cases in which defendants were unruly or drunk. Given there will be a full-scale review of all these issues, I would be glad if that aspect was examined as well.

Any decision of a District Court should be based on the medical evidence available. I accept the Senator's amendments are to ensure mental health support structures are made safe in the courts system. The issues these amendments address, however, will be dealt with in the review of the 2006 Act.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 5, between lines 27 and 28, to insert the following:

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

This amendment would change the definition of "court" to exclude the District Court. This is not just a whimsical exclusion of the court as many professionals, especially psychiatrists, working in the system feel, from their difficult experience, that it is not the appropriate court for dealing with the fitness to stand trial procedure.

A more important point is that there is already in place a successful court diversion scheme run by the National Forensic Mental Health Service. Operating from Clover Hill Prison, it identifies those with major mental illnesses who have been charged with minor offences. The idea, a very progressive one, is that the court or prosecuting garda is asked to defer or drop the charges so that the defendant can be admitted to his or her locally approved centre under the Mental Health Act, the non-criminal legislation.

By contrast, however, if a fitness to stand trial mechanism kicks in, the process of diversion is prevented and the defendant is detained in a high security hospital. Using criminal procedures for what are minor charges is inappropriate and is contrary to the Minister of State's principles contained in A Vision for Change. All Members will agree people with mental illnesses must be treated in the least restrictive way necessary for their and other people's safety in the civil system where possible.

I have been informed by legal and psychiatric colleagues that the Circuit Court deals with this issue better and in a more reliable and responsible way, partly because it has more time for individual cases. This Bill should have given some statutory framework to the continuation of the Clover Hill diversion scheme keeping defendants out of the criminal justice system. Including the District Court in the legislation's provisions undermines the court diversion scheme because it allows for the court to deal with mentally disordered individuals under the fitness to stand trial procedure.

I anticipate the Minister of State will inform me this is a temporary measure and that once the wider review of the legislation has been undertaken, the court diversion programme will be given more recognition. Could it be done, however, at this point?

I second the amendment.

I have had the benefit of recent meetings with Professor Harry Kennedy of the National Forensic Mental Health Service and presentations on the European Convention on Human Rights at which I heard praise for the court diversion service. I believe it is the way to go in this area but it is not appropriate for me to accept this amendment at this point.

On Committee Stage, I stated my concern that the effect of this amendment would be to deny the District Court the power to refer an accused person for examination to a designated centre. This would, in turn, deny the court the opportunity of receiving a report from a consultant psychiatrist as to whether the person was suffering from a mental disorder and, in particular, in need of inpatient care and treatment in a designated centre. The power of the courts to have such reports before them before considering depriving a person of liberty is considered necessary to comply with the requirements of the European Convention on Human Rights and to be consistent with the provisions of the Mental Health Act 2001. Persons dealt with by the District Court are as entitled to the protection of such rights as persons dealt with by the higher courts.

Senator Bacik may wish to abolish the powers of the District Court to deal with issues of fitness to be tried. Such a step begs the question of what would happen when such cases arise in the District Court. Would the cases have to be referred to the Circuit Court? This would be a fundamental change to the 2006 Act and is not suitable for examination in this Bill's context. It will also be dealt with in the review of the 2006 legislation later this year.

I thank the Minister of State again for a full response and am glad the matter I have raised will be included in the overall review of the 2006 legislation. I am also glad he referred to Professor Harry Kennedy who has been an immense help in informing me of the workings of the 2006 Act and his excellent court diversion programme. I take the Minister's point that he wants space to examine it and make any amendments necessary as part of a comprehensive review but we are trying to identify problems with the 2006 Act as it is currently working. Four years on we need to move on the real reforms rather than patch up the current procedures as we are doing with this Bill but given what the Minister of State said, I will withdraw the amendment at this stage.

The last thing I want is to have a patchwork response in any of the areas of mental health. I accept the Senator's interest and commitment in this area and what she has said throughout the debate. In the coming months we will ensure that what we bring together will not be a patchwork response but will deal with the macro issues that must be dealt with.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 9, line 7, to delete "A person is in material breach of his or her" and substitute "The clinical director may revoke a".

I put this amendment on Committee Stage as well. It is an amendment to section 8. It is somewhat technical but it is to change the language in that the new section 13B, as currently drafted, has an Alice in Wonderland quality about it reminiscent of Lord Atkin in Liversidgev. Anderson, the idea being that a person is in material breach where the clinical director believes that person is in material breach. It seems somewhat circular. We thought it might be more accurate and honest for the clinical director to have to take responsibility for evoking the conditional discharge whereas currently it seems their private belief would be enough to put the person in material breach. Is it good enough under our Constitution and under due process to suggest that just because a person believes another person to be in material breach they are then deemed to be in material breach? The purpose of the amendment is to change the wording to clarify that it is not just a subjective view of the clinical director.

I second the amendment. There is something odd about the wording which states that a person is in material breach if the clinical director believes that to be the case. There must be some objective grounds for that. It must be that there is a breach on the basis of some objective grounds, and the clinical director forms a view on the basis of those objective grounds. In supporting this amendment I do not wish to restrict the ability of a clinical director to take action and direct that there is a breach but the wording is flawed, and the Minister of State might reflect on that before we finalise this Bill.

I promised on Committee Stage that I would examine this amendment but, unfortunately, it is more about terminology rather than the substance.

Having examined the issue following Committee Stage, I am of the view that I cannot accept this amendment for the following reason. Section 13 of the 2006 Act, as amended by this Bill, and the new section 13A will give the Mental Health (Criminal Law) Review Board the power to order the conditional discharge of a patient. The point at issue here does not appear to be what actually will happen. It will be the clinical director's judgment which decides if a person should be returned to the designated centre for further review by the review board. The problem appears to be with the terminology to be used to reflect that reality. I do not consider that it would be appropriate to provide in section 13B for the clinical director to revoke an order he or she did not make. The proposed amendment would contradict the review board's independence in the exercise of its functions, which is provided for in section 11(2) of the 2006 Act. In accordance with section 13B, the conditional discharge order is deemed to be revoked. The review board will subsequently decide, after the person is returned to the designated centre, whether to discharge the person again conditionally or to detain the person.

Another serious difficulty with the amendment is that it would remove the definition of the term "material breach" which is used throughout section 13B. Accordingly, if it were to be accepted, it would in effect unravel the structure of the section as a whole. I am satisfied that section 13B will work effectively in its current form and for that reason I cannot accept this amendment.

I am grateful to Senator Regan for his points and support. I still believe there is something odd about the wording, as he said. Perhaps it is unnecessary to delete the words "A person is in material breach" but the difficulty arises with the second part of the sentence which states: "Where the clinical director on reasonable grounds believes that...". It is unfortunate that some other choice of wording was not used. The Minister might examine that further, certainly as part of his overall review.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 10, line 20, to delete "section 13" and substitute "sections 13, 13A, 13B and 13C".

This is a technical amendment. I think I mentioned on Committee Stage that it might be necessary. Currently, subsection (8)(c) of new section 13B provides that the board may exercise all the powers available to it under section 13. We wondered if that should not also read “sections 13, 13A, 13B and 13C”, all of which have now been inserted and some of which give new powers to different bodies.

I second the amendment.

As Senator Bacik pointed out, this is a technical amendment. Subsection (8) of the new section 13B deals with the review by the Mental Heath (Criminal Law) Review Board of the detention of persons returned to designated centres following material breach of a conditional discharge order.

The Office of the Parliamentary Counsel has advised that it is not necessary to make an amendment to section 8 to include a reference in subsection (8)(c) to section 13A. Section 13, as amended by this Bill, will provide that the review board shall make such order as it thinks proper in regard to the patient, whether for further detention, care or treatment in a designated centre, for his or her conditional discharge under section 13A or for his or her unconditional discharge.

I am advised there is no need to include a reference to section 13B, as proposed in the amendment, as the only place where the review board is mentioned in section 13B is in subsection (8) itself.

As the new section 13C has nothing to do with the powers of the review board, it would not be appropriate to include a reference to it here.

Is the amendment being pressed?

Amendment, by leave, withdrawn.

Amendment No. 5 is in the names of Senators Bacik, Alex White, McCarthy, Ryan, Prendergast and Hannigan. Senator Quinn has also tabled this amendment. Amendment No. 6 is consequential on amendment No. 5 and therefore amendments Nos. 5 and 6 can be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 11, line 15, to delete "(Insanity)" and substitute "(Mental Disorder)".

This is an amendment about which we had extensive debate on Committee Stage, and I am glad Senator Quinn has supported it. Senator Regan also supported it on Committee Stage. It is a more substantial issue. It is about the language we are using in this legislation and it is most unfortunate, in 2010, that we are still using the outdated and stigmatising language of insanity. I am aware the Minister of State agrees with me on that. The Minister gave a full response on Committee Stage where he said that mental disorder may not be the best substitute. I accept that. I could not think of any better wording but it is important that we move beyond the language of insanity because of the stigmatising effect and the outdated nature of that language. Perhaps "mental incapacity" would have been a better expression. I take the Minister's point that the 2006 Act uses the term "insanity" and that is the reason we have put in the related amendment No. 6, which is to ensure that in future the collective Acts on this area will be known as mental disorder Acts rather than insanity Acts.

On the civil side we have moved well away from the language of "lunatic", "insane" and so on that was used in the past. In current psychiatric practice that sort of language would never be used. It is always language of mental disorder and mental disability that is used.

I am aware this amendment is strongly supported by the prison inreach and court liaison service, the College of Psychiatry of Ireland and everyone I can think of in the mental health and advocacy fields. It is long overdue that we move away from the language of insanity in the criminal law. I accept that in the common law it is still referred to as the defence of insanity. We still use the language in the 2006 Act but we should now change it, and there is probably no disagreement about that.

I anticipate the Minister will be changing it as part of the review that will be carried out into the overall area this year but we have been waiting a long time for this change. It should have been done in 2006 as part of the Criminal Law (Insanity) Act. It certainly should have been done for 2010. There is no excuse to retaining this sort of language in our modern legislation.

I second the amendment. I appreciate it would require consequential changes to many other Acts, but the use of the term is an anachronism and it is time we made the change. I am sure the Minister of State will consider it, given his responsibilities in the area.

I add my voice to that appeal. The word "insanity" does not fit into the language used nowadays. The term "mental disorder" works a good deal better. I refer to the original Bill when Stewarts Hospital, which I visited recently, was opened in 1870. The word used then was "lunatic". It seems we have changed the word used from "lunatic" to "insanity" and it is time to change it again. I understand what has been said by the two speakers, that it would mean making several other changes. I also understand why the Minister of State might be reluctant to do this, but the change would be worthwhile. It would mean a great deal, especially for those involved.

Senator Quinn should note that I am not reluctant to make such changes, but at this point I cannot do so. I have also had the benefit of visiting Stewarts Hospital. Yesterday I heard at first hand of the tremendous service it had given for many years. At the launch of See Change last Thursday fortnight, I pointed out that, even if we had all of the capital required to modernise the mental health service, including for the provision of new acute psychiatric units, a new central mental hospital and new nursing units, it would count for little unless we changed the attitude towards mental health. That is a given. I thank Senators Bacik, Regan and Quinn for their interest in the issue.

See Change is a two year programme, concerned with changing attitudes towards the use of such words as "lunatic" and "insanity". I refer to the way in which the Local Government Act applies to this House also. I have written to the Minister for the Environment, Heritage and Local Government, Deputy Gormley, to bring about change in this regard. Regardless of the outcome of reviews or whatever else is coming down the line, even if there were no reviews or no new mental health Act, it is vital and essential that all of the old stigma tags are removed as quickly as possible.

The Minister for Justice, Equality and Law Reform understands the concerns raised regarding the use of the term "insanity" in the 2006 Act. Complex issues are associated with replacing that term, which I explained on Committee Stage. I am not seeking an excuse or a cop-out. There would be little point in having a Department with responsibility for mental health if we were still attached to the old norms of the last century or the previous one. I assure the House that when I use the phrase "in due course", it means this year. The Minister for Justice, Equality and Law Reform has agreed that the issue should be examined in the course of a review that will take place this year.

Senator Bacik has remarked that "mental disorder" may not be an appropriate term owing to the considerations I described on Committee Stage. It may have the effect of lowering the threshold of a defence. I have no wish to nit-pick or be at cross purposes because I take on board all of the suggestions and recommendations made by Senators. However, replacing references to "insanity" in the Bill with another term would require corresponding changes to the terminology used throughout the Act. It is our determination in the Department to deal this year with the issues involved to remove all of the stigmatising attachments.

I am pleased the Minister of State has acknowledged the need for this change. I accept entirely that a sea change is required in attitudes and culture. However, it has occurred elsewhere in the system in terms of psychiatric services, civil legislation and so on. It is unfortunate we cannot make the change in this legislation also. It is clearly an anachronism that is not only of the 20th century but also of the 18th and 19th centuries. The language is so outdated that it is unjustifiable to include it in a modern Bill. Therefore, I will press the amendment, although I take on board the Minister of State's comments and appreciate this issue will be considered as part of the overall review. I am pleased to note he is considering a review of the use of stigmatising language in the overall review to be undertaken this year.

I accept the Senator is pressing the amendment, rightly so. However, I make the point again to provide a more definite response. The past three or four weeks have seen the introduction of the new See Change campaign to change attitudes to mental health. Last Saturday week I attended a debate in Trinity College, Dublin which involved people aged between 16 and 17 years from colleges throughout the country. At issue was the targeting of the necessary reform of mental health services. It showed the demand not only of the older generation but also of the younger generation for change. There is a need for compatibility as regards physical ill-health and mental health. That is the great challenge for us. The Department must show immediate change, that is, this year.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 28; Níl, 23.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Dearey, Mark.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Mooney, Paschal.
  • Ó Brolcháin, Niall.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Ivana Bacik and Eugene Regan.
Question declared carried.
Amendment declared lost.
Amendment No. 6 not moved.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass".

I thank my officials, Valerie Fallon and Tracy O'Keeffe, who have backed me up over the past few weeks in the House. I appreciate their involvement.

Senator Regan quite properly advised during the vote that I might ask the Law Reform Commission to look into the use of different wording and I accept the advice. I will try to have that ready for the next outing.

I thank the Minister of State for the time he gave to the Bill as it went through the different Stages in the House. He is familiar with, and in command of, this subject. His openness to amendments is appreciated, in particular, to the language we use in this area. I very much welcome his response.

I also thank the Minister of State and his officials for their work on this Bill. We had a productive and constructive debate and I am glad he took on board the issue of designating centres other than the Central Mental Hospital. It is a pity we could not move on from the use of the language of insanity but I very much look forward to the outcome of the review the Minister of State has promised. I hope there will be a significant sea change, as he has described, in stigmatisation and attitudes towards mental health as a result of that review.

I concur with my colleagues. I listened intently to the debate on the amendments tabled by the Labour Party and Fine Gael and it was worthwhile. I take great heart from the Minister of State's comments on the broader issue coming down the track. This is the first time in my 17 years in the Oireachtas that there has been a sea change in the approach to mental health services. The Minister of State's heart is in the right place and I am certain change will occur. It is a difficult area and sometimes it is hard to make changes but this legislation is a small step in the right direction. The Minister of State has other plans, about which we will hear before the year is out.

Question put and agreed to.
Sitting suspended at 4.55 p.m. and resumed at 5.30 p.m.