SELECT COMMITTEE ON JUSTICE, DEFENCE AND WOMEN'S RIGHTS debate -
Wednesday, 10 Nov 2010

Criminal Law (Insanity) Bill 2010: Committee Stage.

Chairman

This meeting has been convened to consider the Criminal Law (Insanity) Bill 2010. Apologies have been received from Deputy Rabbitte. Deputy Kathleen Lynch is attending in substitution for him. I welcome the Minister of State, Deputy Moloney, and his officials. A document setting out the grouping of amendments has been circulated. Any correspondence that has been received in relation to this Bill has also been circulated. As we are in public session, I ask that all mobile phones be switched off.

SECTION 1.

Question proposed: "That section 1 stand part of the Bill."

Deputy Alan Shatter

Is amendment No. 2 of relevance to this section?

Chairman

No, there are no amendments to section 1.

Deputy Alan Shatter

The Chairman is absolutely right. We can do nothing about the name of the 2006 Act.

Question put and agreed to.

NEW SECTION.

Chairman

As amendments Nos. 1, 12 and 13 are related, they may be discussed together.

Deputy Alan Shatter

I move amendment No. 1:

In page 3, before section 2, to insert the following new section:

"2.—The Act of 2006 is amended by the substitution of the words "mental disorder" for the word "insanity" in every instance where it occurs.".

Amendments Nos. 1 and 12 involve the replacement of the word "insanity" with the words "mental disorder". Amendment No. 13 seeks to ensure that this Bill, when passed, and the 2006 Act will be referred to together as the Criminal Justice (Mental Disorder) Acts. This issue was raised by me and others on Second Stage. During that debate, I made the point that I do not understand why we continue to use language from the last century. We knew then that it was inappropriate. I mentioned that existing legislation continues to refer to people who suffer mental disorder as "lunatics". We still have legislation that refers to "insanity". Different terminology should have been used in the 2006 Act. There is no valid legal reason this legislation needs to retain the word "insanity". There is no reason its name could not be amended to the Criminal Law (Mental Disorder) Bill 2010.

When the Minister of State responded to me in the Dáil, he said that because we are amending a 2006 Act that has the word "insanity" in its name, the same word needs to be used in the name of the amending legislation. I assume that reason has been bequeathed to him by the Office of the Attorney General. As an argument, however, it has no validity of any description. This House can determine how legislation is referred to. It is possible for us to include a new Short Title provision in section 11 of this legislation. A myriad of legislation has been passed by this House which amends previous Acts without having the same name as those Acts. I understand the Minister of State has been given an explanation by the Office of the Attorney General. I am sure issues of this kind are never discussed at Cabinet level. It seems that when the Attorney General makes pronouncements on various matters, it is like Moses descending from the mountain with the Ten Commandments - the belief is that they are perfect in all form and nothing could be wrong with them.

I can give an illustration of why the advice the Minister of State is getting, which comes directly from the Office of the Attorney General, is wrong. The Dáil is currently dealing with the Civil Law (Miscellaneous Provisions) Bill 2010, which seeks to amend provisions in six existing Acts. I am open to correction if I am wrong in that regard. The number of statutes may be just five, but I think it is six. All of them have entirely different names - none of them is called the Civil Law (Miscellaneous Provisions) Act. The reason the Bill is called the Civil Law (Miscellaneous Provisions) Bill 2010 is because it is amending a miscellaneous group of Acts. There is nothing frail, imperfect or legally incorrect in doing so. The name of the Bill properly refers to the Acts in question. It is quite proper for this Bill to be called the Criminal Law (Mental Disorder) Bill 2010 and to become the Criminal Law (Mental Disorder) Act 2010, which amends an earlier Act called the Criminal Law (Insanity) Act 2006. There should be no difficulty of any description with any of this.

There is an old statute from the 19th century called the Lunatics Act. Does anyone seriously suggest that if a minor amendment to that Act were required, a Bill known as the Lunatics (Amendment) Bill would have to be introduced? Does anyone believe it would be politically or sociably acceptable to do this? Would any sane Attorney General advise a Government that it was compulsory to use the word "lunatic" in the legislation? The concept of lunatic as understood in the 1900s is the equivalent of the concept of insanity in the 20th century. We are now in the 21st century.

I appreciate that my proposal may be perceived by some as mere decoration. Some may ask why it matters what we call this legislation. It matters because we understand much more today about mental illness and personality disorders than we did in years gone by. There is no reason the amendment should not be accepted and no validity in any advice the Minister of State is receiving that it should not be accepted.

Having said this to many people outside the House, I do not have a difficulty in saying to the Minister of State's face that he has a genuine interest in his brief and operates it as best he can within the constraints imposed upon him by the Cabinet. As he is not a free spirit in operating his brief and not a member of the Cabinet, the extent to which he can deal with his brief is delimited. I ask him to take an initiative on this issue and make a mark on the brief he holds by agreeing to adopt the amendment and the two related ones. While none of them would change the world, they would all contribute to a change in the language used not only by the general public but also by the legal profession, the courts system and State bodies. I hope the Government will never again introduce legislation which describes people who suffer mental ill health as being insane.

Deputy Kathleen Lynch

I concur with Deputy Shatter. Amendment No. 13 in my name is exactly the same as the amendment tabled by the Deputy. Like him and for all the reasons he outlined, I do not understand the argument that the proposed change cannot be made. The language used to describe issues is sometimes as important as the actions one takes. We should not continue to use words such as "lunatic" and "insanity" in legislation when other universally understood words are available which are probably more descriptive of the condition experienced by certain individuals.

Given that the term "mental health" is used in other sections, why can the language used elsewhere in the Bill not be altered? The amendments would simply tidy up the language to make it more appropriate to the age in which we live. Line 25 of page 5 reads, "suffering from a mental disorder or a mental disorder (within the meaning of the Act of 2001)". If the term can be used in this instance, why can we not tidy up the entire Bill which is relatively short?

Deputy Dan Neville

I welcome the opportunity to contribute. Deputy Shatter, in addressing the legal aspects of the issue, stated words mattered. I propose to address the other aspects of the issue. Shame and stigma attach to mental illness. In some senses, society psychologically tortures people with mental health difficulties. Cruelty is shown towards people with a mental illness because society misunderstands it. For example, persons who attempt suicide are sworn by their families not to reveal that they have attempted suicide for reasons of shame and embarrassment. Those who suffer mental illness feel stigmatised by the attitudes and views prevailing in society.

The issue in hand is the use of language to stigmatise those who experience mental illness. One in four people will suffer mental illness at some stage in life. It is not, therefore, a rare condition. The language used to describe mental illness is key to changing attitudes towards it and tackling the stigma associated with it. I do not refer only to the word "insane" which is part of the problem but also to words such as "lunatic", "mad", "deranged", "crazy", "daft", "barmy", "crack-brained", "nutcase", etc. These descriptions reinforce the prejudices and misunderstandings many have about mental illness. They also stereotype mentally ill patients, allow people to continue to make fun of individuals suffering mental illness and facilitate continued discrimination against this group.

The amendments proposed by Deputies Shatter and Lynch represent one small advance in demonstrating that we must change our approach to the language used to describe the mentally ill. In previous generations tuberculosis was known as "consumption" because it consumed a person. This term stigmatised those with the disease and is no longer used. We used to refer to cancer as "the big C", a term we no longer hear because the stigma associated with cancer has been removed. What we want to do through the amendment is to take a small step towards removing the stigma associated with mental illness. Language has an important role to play it that regard.

Those in leadership roles must make every effort to educate people to assist them in understanding the pain of mental illness and to seek help. I congratulate the Minister of State on the initiatives he has taken in this regard. I refer specifically to the See Change campaign to open up the area of mental illness, change attitudes and behaviour towards it and reduce the stigma and discrimination associated with mental health problems. As the Minister of State noted, the vision for the See Change campaign is to have a country in which every person has an open and positive attitude to his or her mental health and that of others. The objective of the programme which the Minister of State is rolling out all over the country and on which he is to be congratulated is to reduce the stigma associated with mental health problems, challenge discrimination and create an environment in which people will be more open and positive in their attitudes and behaviour towards mental health.

The Minister of State will not be embarrassed if I cite a statement he made on the See Change campaign. He stated:

One of the most significant problems encountered by people with mental health problems is the misunderstanding of what it actually means. This can be deeply hurtful and isolating. Learning to live with mental health problems is extremely difficult, but this difficulty can be compounded when someone experiences, at first hand, the prejudice caused by stigma. It can also be distressing for the families and friends of those persons.

Eliminating the misunderstanding associated with mental ill health will not happen overnight. However the "See Change" campaign has the potential to effect change within Irish society and help lay the necessary foundations for a real and positive transformation of how mental illness is perceived.

The Minister of State needs to take a risk with regard to the advice he is taking. He must use the Bill in a small but important way to highlight the need to change our attitudes towards mental illness and the language we use to describe it in order that we challenge the prejudices associated with the illness. I ask him to accept the amendments proposed by Deputies Shatter and Lynch, move away from language such as "insanity", "lunatic", "daft" and the various other terms I used and change the Bill to send a message that things must change.

Deputy David Stanton

I welcome this very important Bill. It is vital that we pass it as quickly as possible.

Let me draw the attention of the Minister of State to the Education for Persons with Special Educational Needs Act. When that legislation came before the House initially, it was called the Education for Persons with Disabilities Bill. We had a discussion at the time with the then Minister, Deputy Noel Dempsey, that was similar to this discussion. Deputy Lynch was involved. We debated the issues and concluded that the Title of the Act and the words used therein are very important, as Deputy Shatter and others stated. Changing the language of the Title had the effect of changing the tone of the legislation throughout and the way in which people viewed children with special educational needs. We now have an opportunity to do something similar in respect of the Bill before us. We should not get too hung up on this but the Minister of State and committee members now have an opportunity to change the way we approach these issues. By talking about mental disorder rather than insanity, we will come into line with thinking across the world on these issues. Various UN conventions are moving from a medical model to a human rights model. This is what we should be considering. It is our mindset that we need to change rather than pure words. It is what follows words that is important.

Minister of State at the Department of Health and Children (Deputy John Moloney)

I acknowledge members' understanding of the Bill. I was taken by the presentations made, particularly the compelling case made by Deputy Shatter. He asked whether we will use the same wording if we have to revisit some issue under the lunatics legislation. This suggests he hopes we will treat this Bill in a similar manner. I do not want to be negative about this and want to be very specific. I cannot accept the amendment and will state why. I would like to see terminology changed to result in destigmatisation as much as the Deputy.

With a view to being helpful and definite, I contend it is not a matter of refusing to accept the amendment proposed. I will explain my reasons for not accepting it later. As soon as this Bill is enacted, the commitment I made in the Dáil to review immediately the 2006 Act will stand. It would be a total contradiction for me not to change the terminology on foot of the review and at the same time talk about a sea change.

The amendment is being rejected not because of a Cabinet diktat but because of my taking advice from my Department. There are legal implications. Deputy Shatter is a legal man and I do not want to use the cover of legal implications. I would like to tease out the legal advice I have received.

The issues need to be examined carefully. This will be done in the course of the planned comprehensive review of the 2006 Act, to be carried out by the Department of Justice and Law Reform in consultation with the Department of Health and Children. The Minister for Justice and Law Reform has agreed specifically to the issues raised by Deputies Shatter and Lynch. Others will be examined in the course of the review. It is not sufficient merely to examine the wording; it is a question of changing the wording in the review.

I am accepting the advice I received because the definition of "insanity" in the 2006 Act was drafted on the basis of the decided judicial authority and the precise meaning of insanity and the circumstances in which the finding of insanity will excuse a person from criminal liability. While I would like to jump at the Deputy's suggestion, I am concerned about the impact in respect of criminal liability. The plea of insanity in Irish law is an excuse rather than a condition. I made this point in the Dáil. It is a factor that excuses liability from 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 but not decisive. This means that an accused person who has been diagnosed as suffering from a mental disorder in the medical sense 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 is not that one might be suffering from a mental disorder but that the mental disorder was such that the accused person ought not to have been 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 that he or she 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. I am not in a position to accept the amendment because I am considering issues beyond my remit in the legal area that I am not able to address at this point. However, I am making the commitment that, as soon as this legislation is enacted, which will be as quickly as possible, the review will commence. For what it is worth, my direction in respect of the review is that the terminology should be changed.

Deputy Alan Shatter

The 2006 Act is entitled the Criminal Law (Insanity) Act 2006. The amendment I have tabled would have the effect that the word "insanity" in that Act would be replaced by "mental disorder" in the Title. It would also have the effect that the word "insanity" in the body of that Act would be replaced by the phrase "mental disorder". This, in turn, would mean that the definition of "insanity" in that Act would become the definition of "mental disorder". Someone would simply then be found not guilty by reason of mental disorder as opposed to not guilty by reason of insanity.

My amendment has the effect of changing the 2006 Act in addition to the Title to the Bill in the context of the final amendments in my name and that of Deputy Lynch. Having improperly used the word "insanity" in the 2006 Act, we would bring the wording together such that both Acts would be in sync with each other. By simply providing for a "not guilty" verdict by reason of mental disorder, we would introduce modern terminology that does not have the stigmatising impact described and referred to by my good colleague Deputy Dan Neville.

This is not all that complex. I appreciate the Minister of State saying "not today but mañana”.

Deputy John Moloney

I am not saying that.

Deputy Alan Shatter

Irrespective of my personal regard for the Minister of State, he is part of the Government and of a party that has been in government for 14 years. There is a mañana mentality in this Government. So many things are being done recently that should have been done in legislation five, six or seven years ago, and so many things we could be doing are put off for some time in the future. If the Minister of State agrees with what we are saying, his response will not require some high-powered review of the legislation. It just means that we should replace the word “insanity” in the 2006 Act with the phrase “mental disorder”, and that a similar amendment should be made to the Bill before us. Thus, all the legislation would be in sync. It does not disrupt defences that exist under the 2006 Act, nor does it change circumstances dramatically. What it does is ensure that we use appropriate non-stigmatising terminology and take account of modern-day learning in this area. It is a question of not continuing to pass legislation using wording that emerged in the 1930s and of replacing the word “lunatic”. It is as if we are in some time warp out of which we cannot move. God help us if Fianna Fáil continues in government for another four or five years, as we will be lucky to see another piece of legislation addressing this issue in at least the next five to six years. I know how long it took to have the Criminal Law (Insanity) Act 2006 passed. Reform of that area of the law was the subject of discussion for about 15 years, if not longer. I believe the need to reform the law in that regard dates back to the time I was a law student in Trinity College. Sadly for me, that dates back to about 1971 when we used to discuss the way in which our legislation was out of synch with the law in the United Kingdom and needed to be reformed. It took about 35 years to do this, which was some achievement. I am just telling the Minister of State that there is not a valid legal reason for not adopting the amendment. I do not want to delay members any longer, but it is my intention to formally put the amendment to a vote and not to rely on a promise that something might happen when a review is completed or a report is published on a distant future date.

Deputy John Moloney

I should like to give a quick response before the amendment is put.

Deputy Kathleen Lynch

Normally when we look to have amendments accepted, they have a consequential effect on other pieces of legislation, but that is not the case in this instance. We would simply be changing the language used. I do not doubt the Minister of State's sincerity and actually believe he is convinced by the argument made. Perhaps, if we on this side of the table are given the opportunity to be Ministers, we might encounter the same difficulties as the Minister of State in this regard, but I do not believe so. He needs to exert his influence, as I believe he is convinced by the argument put. If he is not convinced, he need only reflect on the reasons we changed the language used in dealing with children born outside marriage, for instance, and the effect this had. It had a dramatic effect on the way in which we saw ourselves and others. It is not as if the amendment would change the definition or the way we deal with people with mental health difficulties when it comes to dealing with crime or other issues in society. We are simply seeking to change the language used, nothing else.

Deputy John Moloney

Of course, I accept a change has to be made and I am won over by the argument made. However, I am also concerned about the possible consequential effects. I take on board Deputy Shatter's comment. I will not be in government, as I do not believe we can extend the lifetime of this Dáil for a further three years, much as we would like to do so. My argument is that as soon as this legislation is passed, we will move by way of revision. If the members opposite are in government, they will start straightaway.

Everything that has been said on the other side of the House in this regard meets everything we tried to accomplish in the anti-stigma campaign and we have tried to change the language used. I would hate it if it was thought the Government was insisting on retaining the old titles rather than moving on. I want to move on, but I also have to be concerned about the advice I have been given which is to the effect that a jury could take the view that any mental disorder, regardless of how minor, could provide grounds for an acquittal. The 2006 Act provided for a high threshold; changing the word "insanity" to "mental disorder" could send a signal to the effect that the threshold was being significantly lowered. That is my concern. Clearly, I cannot accept that one can change the wording without taking the implications into account. I cannot do this, but I-----

Deputy Kathleen Lynch

Does the Minister of State agree that the word "insanity" carries greater weight than the term "mental disorder"?

Deputy John Moloney

There are hundreds of degrees of mental disorder.

Deputy Kathleen Lynch

And insanity.

Deputy John Moloney

And insanity. Somebody with a mental disorder could be at the very lowest point and my concern is that this might have an enormous bearing on a jury in terms of the implications. The Opposition is stating we are just making promises, taking a mañana approach and just pretending, but this vital legislation which we need to enact will clearly be the springboard in undertaking the next major review. I cannot be more explicit in saying this will happen immediately. Why should I pretend otherwise, given that I have to attend a public meeting in Castlebar next week, for instance, at which someone might accuse me of not changing the word “insanity”? I have to be able to say I am not changing it because of the consequenetial implications, but clearly it is up to me to work out how they can be removed. I regret that I cannot move on the amendment. I take on board what has been said as being right, to the effect that we should not use the word “insanity” in any legislation, but I need time to enable the position to be reviewed. That process will begin immediately. If I do not do it, somebody on the other side will.

Deputy Thomas Byrne

The Irish words "gealtacht" and "gealt" are used in a slightly different context to the word "insanity" and not favourably. Perhaps, therefore, they should also be looked at in the review. It may not be an exact translation, but certainly they have been used in other contexts also.

Deputy Alan Shatter

I do not appear to have the 2006 Act to hand, but I believe I am 99.9% right in recalling that the concept of insanity is defined in it. If it is defined in that Act, applying the same definition to the concept of mental disorder would mean that the concept would not change in any way. A jury in looking at the issue would not be dealing with a different concept or one of less seriousness. I am afraid, despite the good will of the Minister of State, the arguments he has been given, whether by his office or the Office of the Attorney General, are spurious because they do not affect the definitions used. "Insanity" as defined in the 2006 Act would become "mental disorder". It would have no impact beyond the terminology used.

Amendment put:

The Committee divided: Tá, 6; Níl, 7.

Tá

• Carey, Joe.
• Clune, Deirdre.
• Lynch, Kathleen.
• O’Shea, Brian.
• Shatter, Alan.
• Stanton, David.

Níl

• Byrne, Thomas.
• Kenneally, Brendan.
• Moloney, John.
• Mulcahy, Michael.
• O’Brien, Darragh.
• O’Connor, Charlie.
• Treacy, Noel.

Amendment declared lost

Section 2 agreed to.

SECTION 3

Question proposed: "That section 3 stand part of the Bill."

Deputy Brian O’Shea

This section deals with the issue of fitness to be tried. In recent days, a matter was brought to my notice regarding prisoners who have already come through the system but in respect of whom there is a question of whether they were fit to be tried in the first instance. A particular case referred to me has raised concerns in my mind.

I am seeking a change in the legislation. I am informed that, in Britain, a prisoner who has been sent for treatment to a particular institution can have his or her case brought to court by the director of that hospital, be reclassified and become a patient of the hospital.

The case I have in mind was a serious one involving a murder and occurred more than 20 years ago. Evidence shown to me raises concerns about the court's finding that the person was fit to be tried. The man in question was sentenced to prison for life, but the term is not the issue. Instead, the issue is that, after being found to be fit, he was subsequently found to suffer from schizophrenia. He has been referred several times to the Central Mental Hospital, but there is no procedure whereby a person can be referred out of a prison. It has been pointed out to me that prison is not giving this individual the help he needs because it is not designed to do so. I am seeking something akin to the legal provisions applying in Britain, which would allow the director of the Central Mental Hospital to apply to the courts to have the individual reclassified. At the discretion of the courts, he could then serve the remainder of his incarceration in hospital. My proposal is not based on the release of the individual but on the concern that he is being housed in inappropriate accommodation. There is no legal vehicle to allow such circumstances to be addressed where a person is held in an institution which is not designed to address his or her problems. The issue arose from the fact that the wrong finding was made on this individual's fitness to stand trial. Can the Minister of State see a way of amending the legislation to cater for the problem I have described?

Deputy John Moloney

I do not want to trot out the usual response that we are conducting a major review, although that is what we are doing. If people are found to be in an inappropriate setting based upon a clinical appraisal of their medical conditions, I would have to introduce a legal requirement on the State to allow them to be transferred for appropriate care. I am not familiar with the specifics of the case to which the Deputy referred and I would like to meet him next week to learn more about it before I frame legislation to prevent such a possibility. This Bill is intended to provide an immediate response to a gap in the law but I give a commitment that we will subsequently conduct a thorough review of the 2006 Act and I will have the opportunity to address the Deputy's concerns in that context.

Deputy Brian O’Shea

Knowing the Minister of State, I am happy to accept his commitment in good faith and I look forward to discussing the specifics of the case with him.

Deputy John Moloney

My officials and I will arrange to meet the Deputy within the next two weeks.

Question put and agreed to.

SECTION 4

Deputy Kathleen Lynch

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 designated centre shall include any other suitable place of treatment specified by the Minister for Health and Children.”.

We should not always conclude that only one centre should be designated to deal with court referrals for people with mental disorder. We could allow people to stay closer to home, provided the relevant centre possesses the requisite security and treatment facilities.

Deputy John Moloney

That should be the thinking and it is also in line with A Vision for Change. However, the Deputy's amendment would have a number of effects. It would allow the District Court to send persons charged with minor offences to centres other than the Central Mental Hospital for examination where an issue of fitness to be tried arises. That is to be welcomed because if we can avoid people being admitted to the Central Mental Hospital, we can reduce the level of stigma they have to deal with afterwards.

However, the amendment would also allow higher courts to send persons charged with serious offences to other centres for examination where an issue of fitness to be tried arises. The District Court would be able to order persons who are unfit to be tried for minor offences to be detained in centres other than the Central Mental Hospital. Finally, higher courts could order persons who are unfit to be tried for serious offences to be detained in other centres.

Deputies will appreciate that the amendment would have very far reaching consequences. I accept the principle of trying to ensure that people with mental health problems are treated to the greatest extent possible in a less restrictive setting, as envisaged in A Vision for Change. Accordingly, I introduced an amendment in the Seanad to give the Minister for Health and Children the power to designate centres other than the Central Mental Hospital as capable of examining persons referred by the District Court where a question of fitness to be tried arises.

However, more serious issues arise in relation to the other courts. For example, criminal cases before the higher courts can involve serious offences and security issues may therefore arise. This amendment would involve a far-reaching change to the current situation and would require careful examination. Similarly, sending persons who are unfit to be tried to centres other than the Central Mental Hospital for detention, care or treatment raises difficult issues which cannot be resolved within the timescale envisaged for the enactment of this Bill.

The purpose of the Bill is to make a small number of amendments to the Criminal Law (Insanity) Act 2006. The amendments to the 2006 Act are being kept to a minimum because the Bill is required to deal with the issue of conditional discharge of patients from the Central Mental Hospital. The broader issues raised by this amendment are more suitable to be considered in the context of the planned review of the 2006 Act. The Minister for Justice and Law Reform has agreed that these issues will be on the agenda in the course of that review.

Deputy Kathleen Lynch

Is there no way of separating the two issues? I acknowledge the Minister of State's argument but my amendment deals with people who would not give rise to the security problems to which he referred.

Deputy John Moloney

It is up to us to find a way to separate cases which involve security elements from those presenting minimal risks. It is a question of balance. There is no point in sending somebody to the Central Mental Hospital if he or she can be sent to another centre.

Chairman

How stands the amendment?

Deputy Kathleen Lynch

I will press the amendment.

Amendment put and declared lost.

Section 4 agreed to.

Sections 5 to 7, inclusive, agreed to.

SECTION 8

Deputy Kathleen Lynch

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 would like to hear what the Minister of State has to say about my amendment, which would remove the risk that directors might take a particular view of certain conduct.

That is how a material breach is defined. If there was a different director, his or her view of what constitutes a material breach might very well be different. The section as currently worded imposes a restriction on people who are conditionally discharged that does not affect the rest of us in terms of definition or perception. Through this amendment, I hope to tighten up on the definition of a material breach based on the perception of a particular director. A person would have to breach one of the conditions under which he or she was released in order for the director to be able to revoke his or her conditional discharge order. It should not be a matter of perception.

Deputy John Moloney

I understand the point being made. The decision on whether a person should be returned to the designated centre for further review by the review board will be down to the clinical director's judgment. 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 is that it will be down to the clinical director to decide whether the person should be returned to the centre for further review. The problem is in the terminology used to reflect that reality. It is important to note that section 13B(2) requires the clinical director to have reasonable grounds for his or her belief, and this would apply regardless of who the clinical director is. The person is in breach of his or her conditional discharge if either there is a likelihood of the person's causing problems, or the person is in need of inpatient care or treatment. Again, that is for the clinical director to decide.

Section 13B(1) states: "A conditional discharge order shall, in respect of a person who is the subject of the conditional discharge order, be deemed to be revoked if the person is in material breach of that order." The review board will decide, after the person's return to the designated centre, whether to discharge the person conditionally or detain him or her. In other words, if there is a breach, the person is returned to the centre and the review board, which initially cleared his or her conditional discharge, will have to decide whether to detain or discharge him or her. The latter is an important safeguard to ensure the protection of the rights of the person in material breach of a conditional discharge order.

My serious difficulty with the amendment is that it would remove the definition of the term "material breach", which is used throughout section 13B, and, if accepted, would effectively 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 the amendment.

Deputy Kathleen Lynch

I am not even certain why I am worried about this. Our experience of supervision orders has not been great. To rely on the perception of one person, the director, might leave the person who was conditionally discharged at the mercy of the director that is there at the time. I accept the Minister of State's point that the amendment would have effects on the rest of the section. However, what constitutes a material breach to one person might not to another. I worry about that.

Deputy John Moloney

I accept the Deputy's concern, but I do not think it is entirely at the discretion of the clinical director. The professionals on the review board must have an input.

Deputy Kathleen Lynch

After the person has been returned.

Deputy John Moloney

That is right. I see the point the Deputy is making. She is asking what constitutes a breach. Let us tease this out. When is person is conditionally discharged, he or she must adhere to the conditions on his or her discharge sheet - for example, that he or she must live within a certain distance of the hospital or agree to be visited by the community health nurse. Those are obvious conditions that could be breached. Another possible breach would be a failure to take appropriate medication. This would be communicated through word of mouth by some observer, probably a professional observer. Ultimately, those who signed the conditional discharge - that is, the review board - will need to be satisfied that the person was correctly returned to the centre. It is down to the clinical director to make that decision based on the evidence. The evidence would have to stack up - the reason the person was brought back to the centre must be consistent with a breach of the conditions of the original discharge. That is as much as I can say about it.

Deputy Kathleen Lynch

The safeguard is the board, as the Minister of State said.

Deputy John Moloney

The risk is that if we disregard the issue of conditional discharge, there are far greater implications. It is better to err on the side of caution. I thank the Deputy.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 4 to 7, inclusive, and 10 are related and may be discussed together.

Deputy John Moloney

I move amendment No. 4:

In page 9, between lines 37 and 38, to insert the following:

"(6) Without prejudice to subsection (5) and to any other power conferred by law, a member of the Garda Síochána may arrest without warrant any person whom he or she with reasonable cause suspects to be unlawfully at large pursuant to subsection (1).

(7) A person who is arrested under subsection (6)* by a member of the Garda Síochána shall, as soon as practicable, be transferred into the custody of an officer or servant of the designated centre or an authorised person for the purpose of effecting the return of that person to the designated centre concerned.".

The purpose of these amendments is to clarify issues that were raised with regard to the Garda's powers of arrest under section 13B and to ensure that persons arrested under this section can be transferred by the Garda into the custody of staff of the designated centre. It is proposed to remove the reference to Garda power of arrest in section 13B(6) and, instead, to provide that a Garda may arrest without warrant a person whom he or she, with reasonable cause, suspects is unlawfully at large under section 13B. The new subsection (7) provides that the person must be transferred to the custody of an officer or servant of the designated centre or an authorised person for the purpose of effecting his or her return to the centre.

The amendment will not materially change the provision but was, on reflection, deemed necessary to ensure that section 13B clearly sets out what should happen to a person arrested under that section.

Deputy Alan Shatter

This amendment will result in the insertion of new subsections (6) and (7). Subsection (6) states that the Garda may arrest a person without warrant, while subsection (7) provides that a person arrested by a garda must be transferred into the custody of an authorised person from the designated centre. Amendment No. 6, which I do not think we are discussing-----

Chairman

We are discussing amendment No. 6.

Deputy Alan Shatter

I beg your pardon. Amendment No. 6 deletes the word "arrest" from the original section 13B(6). Could the Minister explain why the word "arrest" is being deleted from that position?

Deputy John Moloney

On reflection, it was considered necessary to remove the word "arrest" and to remove the reference to the Garda power of arrest in the section and to provide instead that a garda may arrest such a person without warrant. It is to do with the definition of arrest and allowing a garda, as anybody else, the power of arrest. It removes the need for a legal apparatus - that is, a warrant - to take somebody who might have a mental health difficulty into care.

Deputy Alan Shatter

I suggest to the Minister of State that one of the amendments is right, but the one that introduces the two new subsections is wrong. It is absolutely right to do what amendment No. 6 proposes - that is, to remove the word "arrest". However, with regard to the new subsections (6) and (7), I suggest to the Minister that we do not need to be arresting people who suffer from mental disorders and break their discharge conditions. What we need to do is to ensure there is a power to detain them. When a child is in difficulty we look for a care order for the child and do not seek to have the child arrested. I suggest to the Minister of State the terminology used is entirely inappropriate. What is needed is terminology that would facilitate gardaí in detaining individuals in circumstances where conditions had been broken and returning them to the Central Mental Hospital or other such designated facility under the legislation. I suggest to the Minister of State that we should take on board amendment No. 6 and that if we cannot do so on Committee Stage, we should do so on Report Stage.

The new subsection (6) should read: "Without prejudice to subsection (5) and to any other power conferred by law, a member of the Garda Síochána may detain any person whom he or she with reasonable cause suspects to be unlawfully at large pursuant to subsection (1)". That would give the Garda power to detain rather than arrest individuals, just as in certain circumstances under the Child Care Acts gardaí can take a child into care or to a place of safety. The terminology attached to making an arrest is not used.

Subsection (7) could be worded similarly: "A person who is detained under subsection (6) by a member of the Garda Síochána shall, as soon as practicable, be transferred into the custody of an officer or servant of the designated centre or an authorised person for the purpose of effecting the return of that person to the designated centre concerned".

I suggest to the Minister of State that we are dealing with persons who have been found not guilty, unfortunately, by the use of the word "insanity" - I would prefer to use the term "mental disorder" - who are allowed to leave the Central Mental Hospital, subject to conditions. When they violate these conditions, we do not ask the Garda Síochána to arrest them but that there be a power to detain them. The Bill, as far as I understand it, envisages that persons other than gardaí may be involved in returning individuals who have broken conditions to the Central Mental Hospital. No one, except a member of the Garda, has the power to arrest a person; therefore, all such persons can do is to detain the individuals concerned. I suggest that, if we were to take on board the amendments proposed, the Minister of State could table an amendment on Report Stage to replace the word "arrest" with "detain" in the new subsection (6) and the word "arrested" with "detained" in the new subsection (7).

Deputy John Moloney

I will not ignore that point and will have the opportunity to examine it before Report Stage. However, I ask Deputies to consider the distinction. The word "detain" is included either way, where a person has breached a conditional discharge order and detention is at the discretion of the Garda. This provision merely gives gardaí powers in the event that there is a need for an arrest. It is important for us to acknowledge that many people, particularly professionals, who deal with an individual with a mental health difficulty have chosen to adopt the easy approach rather than seek a warrant or an arrest. These powers are provided for in the event that a person presents with a serious mental health difficulty. However, rather than send the wrong signal in this regard, I am prepared to look at this issue before Report Stage.

Deputy Jan O’Sullivan

The amendment is agreed to but on condition that we will return to the matter on Report Stage.

Deputy John Moloney

We are trying to bring about a change for the better in this legislation and the last thing I want is for the notion to be given that persons in breach of conditions will be arrested by the Garda. At the same time, we must be conscious that there may be a serious breach as a result of which a person might pose harm to himself or herself. Unless such a person was to be properly arrested, there could be a problem. However, I understand that if I ignore the suggestion made, it could send entirely the wrong signal. I am prepared, therefore, to consider the issue before Report Stage.

Amendment agreed to.

Deputy John Moloney

I move amendment No. 5:

In page 9, line 38, to delete "(6) A member of" and substitute "(8) A member of".

Amendment agreed to.

Deputy John Moloney

I move amendment No. 6:

In page 9, line 47, to delete "arrest,".

Amendment agreed to.

Deputy John Moloney

I move amendment No. 7:

In page 9, line 49, to delete "(7) (a) Notwithstanding the generality” and substitute “(9) (a) Notwithstanding the generality”.

Amendment agreed to.

Chairman

Amendments Nos. 8 and 9 are related and may be discussed together.

Deputy John Moloney

I move amendment No. 8:

In page 9, line 50, to delete "who is returned" and substitute the following:

"who returns or who is returned, as the case may be,".

The purpose of the amendments is to clarify that the safeguards in sections 13B, 76B and 8 will apply to a person in material breach of a conditional discharge who voluntarily returns to a designated centre just as they are to apply to a person who is involuntarily returned to the centre. The safeguards are to apply, first, to a person who returns or is returned and brought before the Mental Health Criminal Law Review Board as soon as possible after his or her return to have his or her detention reviewed, and second, to the person suited to all of the provisions of the 2006 Act just as they would be if he or she was being detained for the first time under the Bill.

Amendment agreed to.

Deputy John Moloney

I move amendment No. 9:

In page 10, to delete lines 10 and 11 and substitute the following:

"(10) Where a person returns or is returned, as the case may be, to a designated centre pursuant to this section—".

Amendment agreed to.

Deputy John Moloney

I move amendment No. 10:

In page 10, line 22, to delete "(9) In this section," and substitute "(11) In this section,".

Amendment agreed to.

Deputy Alan Shatter

I move amendment No. 11:

In page 10, between lines 32 and 33, to insert the following:

"(2) Any person providing services relating to effecting the return of persons to a centre pursuant to subsection (1) shall be provided with appropriate training on issues relating to mental disorders.".

This amendment seeks to insert a new subsection (2) into section 13B. Subsection (1) envisages that the registered proprietor of a designated centre, a point of particular relevance in circumstances where centres other than the Central Mental Hospital in Dundrum are so designated, may enter into arrangements for the purposes of arranging for persons who are members of the staff of that centre to provide services to effect the return of persons to the centre. This is in regard to circumstances where a person leaves a designated centre and clearly relates to the earlier issue I raised with the Minister of State where it is envisaged that persons who are not members of the Garda Síochána will be employed to effect the return to a centre of an individual suffering a mental disorder who has been the subject of a court order which resulted in him or her being sent to the centre. There is an assumption, especially in the context of the Central Mental Hospital, that it will primarily be members of the Garda Síochána who will do this; hence the suggestion the Garda be given a power of arrest. I reiterate, however, that this is the wrong way to deal with the situation.

The amendment envisages that persons other gardaí would effect the return of individuals. One can only assume gardaí receive some training in how to deal with individuals sufferering a mental disorder. This provision is proposed in order to ensure that if individuals are to be employed to effect the return to a designated centre of a person suffering a mental disorder, the individuals so employed would receive appropriate training. It is a simple provision, one I hope the Minister of State will take on board. However, I cease to give any credence to my hopes because after three and a half years of suffering the Government I have learned this exercise is futile and I do not know why we waste our time engage in it. No Opposition amendments are ever accepted. Therefore, we might as well abandon Committee Stage debate on Bills and allow Ministers to use them for their own personal psychotherapy. The amendment is straightforward, but I have no doubt the Minister of State will find a reason not to accept it. However, he might surprise me and prove me wrong.

Deputy John Moloney

We are not here to consider the Bill for reasons of psychotherapy but to ensure a better level of support in dealing with the associated issues. The Deputy's statement creates the notion that I am refusing to accept the amendment just for the sake of it. We often talk about the great demands placed on personnel in the Central Mental Hospital or mental health services. Were we to expect mental health personnel to provide the service again it would create a very significant demand on the services. What is in place is sufficient, although perhaps I should not use the word "sufficient" but the type of personnel in place serve to deal with the issue raised by the Deputy. They are used by the HSE at national level. They are accredited as well. This point has arisen before in other discussions. There is no question of a yellow pack service or using bouncers on public house doors to effect the legislation. The members of the team are required to provide certain standards, some of which I will outline. All members of the team are required to be familiar with mental health legislation. The review board has clearly outlined the required level of confidence. Also, they must be aware of patient rights, personal rights and civil liberty issues. They are also appropriately trained in predicting and preventing violence, restraint procedures, resuscitation techniques, the maintenance of a safe environment, disability awareness and the needs of people with disabilities. It is not a matter of willy-nilly having someone to effect the conditional discharge. The people required are of a professional competence and are knowledgeable and able in the mental health area.

Deputy Alan Shatter

I do not know why any of us are wasting our time with this.

Deputy John Moloney

If Deputy Shatter is wasting his time, I am not wasting mine.

Deputy Alan Shatter

The Minister of State is wasting all of our time.

Deputy John Moloney

Deputy Shatter has the choice of leaving if he believes he is wasting his time.

Deputy Alan Shatter

There is not one constructive amendment that we can propose to this or any legislation. This is symptomatic of a party that has been in government for 14 years and, having destroyed the country, believes the font of all wisdom still rests in its soul.

The legislation makes express provision for those who find themselves to be not guilty for reason of insanity not only to be sent to the Central Mental Hospital but to other "designated centres". This point has been part of the discussion on the Bill. An individual could be in another centre which does not have the staff with the training of Central Mental Hospital staff and may go absent without leave, AWOL, or may not comply with conditions. Based on the provisions in the Bill, the gardener who cuts the grass in the grounds of the particular facility could be deployed to go and retrieve an individual and bring him or her back. Why?

Deputy John Moloney

That is unbelievable stuff.

Deputy Alan Shatter

No, it is absolutely true.

Deputy John Moloney

That is purely headline-grabbing and nothing else.

Deputy Alan Shatter

All they have to be is an employee of the designated centre. It could be the chef in the kitchen.

Deputy John Moloney

That is not the case.

Deputy Alan Shatter

It could be an individual who makes the bed, the gardener or anyone. Why cannot the Minister of State agree to a simple provision to the effect that any person who will provide a service relating to effecting the return of persons, presumably with mental disorder, to a centre shall be provided with appropriate training on issues relating to mental disorders? Let us consider this for a moment. The phrase "appropriate training on issues relating to mental disorder" does not mean he or she must complete a six year course in university, must necessarily be a trained psychiatric nurse or must be a trained psychologist. However, it means he or she has received some level of training not only to become aware of what legislation exists and people's human rights but which indicates that he or she has the capacity to deal and cope in a humane way with an individual with severe personal difficulties as a consequence of mental disorder. It does not prescribe the particular training although perhaps this is something a good Government would do by way of guidelines. The idea that there is no such provision is extraordinary.

This is a very simple amendment. The Minister of State has fulfilled my expectation with his response but I believe it is an amendment worth taking seriously. The Minister of State's response was confined to circumstances where the person in charge of the Dundrum Central Mental Hospital would choose an appropriately qualified individual to perform such a task. We have discovered to our cost and to the cost of many young people in the country that various designated child care centres have behaved appallingly towards children and that wrong decisions have been made. We are still learning and making mistakes in the area of mental health. This provision simply requires some level of appropriate training in dealing with mental disorder for those employed to retrieve individuals, who have failed to comply with conditions in those circumstances either for their own safety or for the safety of others, and return them to a mental health facility. Those individuals should have some level of training. I find it quite extraordinary that this cannot be taken on board but it does not surprise me.

Chairman

Before I return to the Minister of State, Deputy Lynch wishes to intervene.

Deputy Kathleen Lynch

I accept fully what the Minister of State has said in terms of Dundrum and the Central Mental Hospital because it is run to such a high standard. No one disputes this. However, the aim of the Bill is to go somewhat further and I gather the Minister of State is inclined to go somewhat further than the provisions of the Bill in terms of designated centres and the lower courts presenting people to other centres. If we are to put in place legislation which deals with very vulnerable people then it is imperative that we dot the i's and cross the t's, ensure people are well trained and that only people with certain expertise and training in mental health are involved directly with the patients. Such is the spirit of the amendment and it might be worthwhile to take this on board.

Deputy John Moloney

That is the spirit proposed by Deputy Lynch but not by Deputy Shatter. His thinking is totally about Government bashing. I am here on a different mission altogether. I wonder aloud whether Deputy Shatter had the chance to read the conditions within the contracts. Had he done so he would not have asked the question. It is simply headline grabbing to suggest the gardener could be sent after someone and I will not go to that level of debate. I prefer to deal with what is realistic and what we are about.

I take on board what has been said by Deputy Lynch. The conditions of the contract would require a level of professionalism and knowledge of the Mental Health Act. This just applies to the Central Mental Hospital. It is important to note that this organisation is used professionally by the HSE nationally. Certain people must subscribe to and be conversant with many conditions.

I trust that the message to the effect that we are somehow trying to deal with serious mental health issues with the use of part-time or gardening staff will not go out. Anyone who takes it upon himself to make such a suggestion in the absence of reading the conditions of the contract is not serious about the changes to this legislation.

Deputy Alan Shatter

I am looking at the wording of the legislation.

Deputy John Moloney

The Deputy should have taken time to examine the wording of the contract. For those who want to hear the reply and who are not here in the committee room simply for Government bashing, the provisions of the new section 13B and 13C are similar to the provisions of the Mental Health Act 2001 as amended by section 63 of the Act. It provides that a clinical director can arrange for members of staff of the approved centre or authorised persons to bring or return a patient to the approved centre. The Act provides that the registered proprietor of the centre may enter into a contract for the purposes of arranging assisted admissions by persons other than staff of the approved centre. The clinical director of that approved centre must then authorise, in writing, persons who are employed by the external agency, to provide assisted admissions to that approved centre. It is necessary for a clinical director to have access to authorised persons to provide assisted admissions where these cannot be provided by staff of the approved centre. This is not confined to the Central Mental Hospital. The HSE at a national level has contracted an external agency to provide such assisted admissions. The service contract places an obligation on the provider to ensure that the staff who will be designated as authorised persons are professionally qualified. That is not my wording; it is specifically stated in the contract that they must be professionally qualified. It is fair enough to say that if we designate people who are professionally qualified that must mean they have knowledge of the Mental Health Act. There must be appropriately skilled and trained people to carry out their duties to a high standard. All members of the team are required to be familiar with mental health legislation, patients' rights and personal rights. Following the enactment of the Bill it will be necessary for the HSE, as the registered proprietor of the Central Mental Hospital, to enter into an arrangement for an assisted admissions service relating to the return of persons to the Central Mental Hospital following the revocation of their conditional discharge orders.

This arrangement is likely to mirror the contractual arrangements the HSE has in place for the provision of externally provided admissions, including the high standards obtaining regarding the qualifications and training of persons who are designated as authorised persons. I consider that matters such as the training requirements of authorised persons are best addressed at operational level in the context of the contract negotiations. That is the point at which those responding to tender can be assessed to determine whether they are properly qualified. Accordingly, that deals with what this Bill proposes.

The agency currently contracted by the HSE has provided a very professional, high-quality and safe admissions service for the past four years. There have been no complaints. The company employs fully qualified psychiatric nurses for designation as authorised persons - no gardener is mentioned - all of whom have received intensive specialised training, including appropriate interaction with service users and training on de-escalation and talk down techniques which might be appropriate occasionally.

The company complies with all Mental Health Commission guidelines and standards in its work and provides special transport with trained drivers and co-operates effectively with the Garda Síochána when its assistance is required. The experience of the use of the external agency has led to the development of considerable specialist expertise in the provision of assisted admissions because of the frequency with which a team engages in the provision of the service. The development of this expertise has been of considerable benefit to mental health services nationally. I ask the members of the committee to believe, based on that part of the response, that professional people are involved.

Deputy Alan Shatter

I will be extremely brief. That was all very interesting but the problem is this Bill envisages new designated centres. There is no certainty who they would employ to do this job.

Deputy John Moloney

There is certainty.

Deputy Alan Shatter

There is not. There is no point in dragging this out any further. I will press the amendment.

Amendment put and declared lost.

Section 8, as amended, agreed to.

Sections 9 and 10 agreed to.

SECTION 11

Deputy Kathleen Lynch

I move amendment No. 12:

In page 11, subsection (1), line 15, to delete "(Insanity)" and substitute "(Mental Disorder)".

We have already had a vote on the amendment. I am not inclined to push it to another vote. I ask the Minister of State to take on board what we have said on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 13 not moved.

Deputy John Moloney

I move amendment No. 14:

In page 11, subsection (2), line 18, to delete ", Equality".

Deputy Kathleen Lynch

What is the explanation for the amendment?

Deputy John Moloney

The amendment simply changes the reference to the section from the Minister for Justice, Equality and Law Reform to the Minister for Justice and Law reform. It deletes "Equality" in accordance with the most recent changes in ministerial responsibilities.

Deputy Alan Shatter

Equality is no longer an issue in the Department of Justice and Law Reform.

Deputy John Moloney

It is an issue but it is being dealt with by another Minister

Deputy John Moloney

We have dealt with the issue and voted on it. I do not want to leave the committee meeting with members thinking we are totally setting our faces against the proposals on the name change. While I did not commit myself to talk about Report Stage it is very important for me to try and bring some change in that regard and I ask members for their forbearance and belief, if that is not too much to ask, that we will try to make the appropriate changes.

Amendment agreed to.

Section 11, as amended, agreed to.

Title agreed to.

Chairman

I thank the Minister of State, his officials and the committee members.

Deputy Alan Shatter

I am very conscious that there are a number of individuals in the Central Mental Hospital who should be currently conditionally released and who have not been able to be conditionally released. I invite the Minister of State to take Report Stage next week and complete passage of this Bill.

Deputy Kathleen Lynch

I support that. We sometimes forget that there are people out there desperately waiting on this Bill.

Deputy John Moloney

I will certainly make every attempt to take Report Stage next week.

Bill reported with amendments.