Amendment Nos. 1 and 7 are related and may be discussed together.
Criminal Law (Insanity) Bill 2002 [Seanad ]: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 4, subsection (1), to delete lines 1 to 4.
These are technical amendments. The Office of the Parliamentary Counsel has advised that these provisions are not necessary in the light of the new provisions of the Interpretation Act 2005. The definition of "functions" is governed by section 21(2) and Part II to the Schedule to the 2005 Act, which states, "In an enactment which comes into operation after the commencement of this Act, a word or expression to which a particular meaning, construction or effect is assigned in Part 2 of the Schedule has the meaning, construction or effect so assigned to it." Part 2 of the Schedule defines functions as follows: "functions" includes powers and duties, and references to the performance of functions includes, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties.
With reference to enactments, sections and so on, these provisions are now governed by section 9 of the 2005 Act, which states, "A reference in an enactment to a Part, Chapter, section, Schedule or other division, by whatever name called, shall be read as a reference to a Part, Chapter, section, Schedule or other division of the enactment in which the reference occurs." It is one of the advantages of the Interpretation Act 2005, which started off when I was Attorney General, that these kinds of things can now be left out of statutes.
These appear to be amendments of a technical nature and we can support them.
Amendment agreed to.
I move amendment No. 2:
In page 4, subsection (1), line 5, to delete "barrister or a solicitor" and substitute "practising barrister or a practising solicitor".
Amendment agreed to.
Amendments Nos. 3, 4, 45 and 48 are related and may be discussed together.
I move amendment No. 3:
In page 4, subsection (1), line 7, to delete "disease" and substitute "other disease or medical condition".
One of the interpretation clauses states "mental disorder" includes mental illness, mental handicap, dementia or any disease of the mind that does not include intoxication. I want to extend that definition to include any other disease or medical condition in order that we do not limit it exclusively to disease. There are other personality disorders that would not be classified as a disease that could come under the heading of mental disorder. The amendment suggests the interpretation could be a little wider.
The reasoning behind some of the amendments proposed in the Seanad was to align the definition of mental disorder for the purposes of this Bill in order that it corresponded to that in the Mental Health Act 2001. In that House, I profoundly disagreed with the proposition that there should be an alignment. The purpose of the Mental Health Act 2001 is to govern the circumstances in which people can or cannot be admitted to psychiatric institutions against their wishes and to set a framework for the treatment of patients with mental illness. The purpose of this Bill is different in that it seeks to establish a mechanism for decisions by the courts that people are to be excused criminal responsibility in certain circumstances and to deal with other issues such as inability to plead and so on. There should not be any spillover effect between the two areas of law. If exactly the same definition applied in the two Acts, a situation could arise whereby one Act would be interpreted by the courts for one purpose, dealing with admissions to a psychiatric hospital, and it would have a knock-on effect on the criminal law of insanity.
The policy underlining the Bill is quite deliberate. First, that policy dictates that in the specific context of the Bill as a criminal law measure, the definition of the term "mental disorder" first and foremost must be framed against the existing position in common law. I do not propose to move outside that framework, which is why the Bill does not propose to be radical in this most complex area. It is important to stress that no singular or uniform solution has been adopted in the various common law countries on this complex issue, including those with which we are most closely connected.
Second, 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 it is not decisive. This means that an accused person who has been diagnosed as medically insane may fail to satisfy the criteria for legal insanity in the criminal law.
The Bill is designed to deal primarily with the criminal law aspect of the issue once that issue has been determined by the court with the question of carer treatment. The matter is complicated by the fact that legal and medical definitions which apply are not co-extensive. Great care must be taken during the drafting of the Bill to ensure that these matters are taken into account. Particular attention has been given to the fact that there is an overlap between the criminal justice elements and the care and treatment aspect of mental health legislation, particularly concerning matters which a court must take into account when considering the options available to it at the sentencing stage. For example, a person may be suffering from the disease of alcoholism to such an extent that he or she should be brought into a psychiatric institution for treatment. However, to say that this disease is the degree of insanity required to be acquitted of an offence is to marry two different concepts which could have very different outcomes, as we know.
The determination will be based on the definition of mental disorder set out in the Bill. In other words, as a threshold test a person must be at least suffering from a mental disorder as defined in section 1 of the Bill, meaning mental illness, mental handicap, dementia or any disease of the mind. However, for the special verdict under section 4 of the Bill, that mental disorder must additionally be defined as in section 4(1)(b), where that section, by the use of the words “the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of”, appropriately emphasises the fact that the issue for the court is fundamentally one of legal responsibility rather than simply diagnosing a psychiatric condition. The three limbs of the test, which are mutually exclusive, restate what the present test is in this jurisdiction.
With regard to amendment No. 3, the definition of mental disorder as contained in the Bill is of fundamental importance and tightly worded. To amend it in the manner suggested by the amendment would introduce uncertainty to an area where there can be no room for doubt. A reference to any other disease or medical condition is far too vague and would allow arguments to be made which would have the effect of widening the scope of the defence. I do not want to have that unintended consequence.
Amendment No. 4 is opposed for the reasons I have just outlined. What other "condition" or "altered state of mind" would we be talking about in this regard? If I were to include those words, I would have to define what is meant by them. I do not see the need to add to the word "intoxication", as it describes sufficiently well the intention behind the provision. It will be the primary consideration and I do not see the need to add any sub-conditions which might be brought about by the condition of "intoxication".
Amendment No. 45 proposes to change the reference to "mental condition" in the provision in section 17, dealing with evidential matters, to "mental disorder". The term "mental condition" is absolutely correct in this context as the question of whether a person is suffering from a mental disorder as defined in the Bill would not have been addressed at that point. There is a further reason, and section 39 of the Bill attached to the Henchy report deals with this very point. It illustrates why we must be very careful with the use of these terms in the Bill. It also makes a distinction between "mental disorder" which, in general, was the fundamental term used in the Bill attached to the Henchy report and "mental state" which is used in that Bill in the equivalent provision under section 17. The distinction in the Bill attached to the Henchy report and the Bill before the select committee underscores the fact that in the specific matter of the requirement of notice being given to the prosecution about the fact that the defence intends to adduce evidence on the issue, it is not tied to the definition of mental disorder as used in the Bill.
Between now and Report Stage, I will examine the need to refer in certain areas of the Bill, for example, sections 14(1), (2) and (5), 16(3)(a) and 19(5) to a “mental disorder” as being one within the meaning of the Mental Health Act 2001. We have used this formulation in other sections to indicate that it is a definition that applies where a court is deciding, having reached its verdict in the fitness to be tried case or a verdict of not guilty by reason of insanity, how a person is to be subsequently dealt with. Amendments to these provisions may be required for the purpose of clarification.
Amendment No. 48 proposes to change the reference to "insanity" in the Short Title of the Bill to "mental disorder". As I stated in the Seanad, I cannot accept this amendment because it would necessitate corresponding changes to the terminology of the Bill. It would be undesirable because the use of less pejorative terminology might result in widespread use of the plea on a mischievous basis. It might also give the misleading impression that any mental disorder, regardless of how trivial or complex it is, would justify returning a verdict of not guilty by reason of mental disorder. The word "insanity" does signify an important threshold of disorder, which could not be regarded as trivial, minor or obtuse. Changing "insanity" to "mental disorder" would signify that the threshold is somehow being lowered significantly.
The criminal law is the main focus of this Bill. It might be said that insanity is a term of art in connection with criminal law and has a meaning which people understand. I do not wish to introduce any doubt or uncertainty into this area of the law under any circumstances. We must remember that juries and judges must grapple with this law and relatives of victims, particularly victims of violent crime, must be able to understand verdicts. It will be counterproductive if, as a result of the fudging of issues or the use of politically correct or diluted language, people manage to walk away from jail on the basis that juries have listened to a mishmash of soft language. I want the defence of insanity in criminal law to be very sharp-edged in order that the public understands it and is able to understand decisions arrived at by juries. I acknowledge it is unfashionable to say this. We need a defence of insanity in which the public has confidence. The outcome of a case involving a shooting in a hospital car park in Sligo gave rise to serious public dissatisfaction. I do not wish to create further room for public dissatisfaction.
I am not sure whether the Minister really meant what he said when he stated that he wanted to ensure the public understands this area of law. Having listened to the Minister for the past ten minutes, this area is as clear as mud. However, I respect the point he made about making the determination and definition of terminology as clear as possible. This area was discussed at length in the Seanad and I do not expect the select committee to make any further adjustments to it.
According to section 1, to which amendment No. 3 refers, mental disorder includes "mental illness, mental handicap, dementia or any disease of the mind but does not include intoxication". This appears to be somewhat gratuitous. Intoxication is a state of mind brought on by the imbibing of only one drug. There is a range of drugs that are very common in Irish society.
It begs the question of the relevance of introducing this caveat or exclusion when intoxication or the same effect of an "altered state of mind" can result from various hallucinogenic drugs, some of a serious nature and some of a minor nature, as mentioned in Deputy Gerard Murphy's amendment. We are not sharpening the definition by excluding a matter of this nature.
The Bill does not clearly define intoxication or deal with the state of mind induced by intoxication. This definition should be watertight. The Minister spoke about the Bill being clear and so forth but it is open to interpretation. We should ensure our legislation is not open to too much interpretation. No grey areas should be allowed as they give too many powers to the Judiciary.
The language used includes archaic terms such as "mental handicap" and "disease". Medical terms with specific definitions are used frequently. The Bill creates confusion by referring to words that do not have the same currency now as they did 200 years, 100 years or even 50 years ago.
There will always be confusion when one tries to develop a definition, which was explained by the Minister when he referred to the Mental Health Act 2001. Its definition of mental disorder is different from the definition the Minister has inserted in this Bill. We should try as much as possible to have definitions that can carry across various legislation. I understand the Minister's point about there being a difference — one deals with treatment and the other deals with the courts — but a court will refer someone for treatment if it finds that the person committed a crime as a result of suffering from a mental disorder.
I am in favour of returning to the definition as it appears in the Mental Health Act 2001 and avoiding the use of words that are no longer current or have different connotations that are now derogatory. We should use the words used and defined by those who work with and treat the people suffering mental disorders. I suggest changes to the language from "mental handicap" to "intellectual disability", which is commonly used. We should use the definition in the Mental Health Act 2001 to ensure that it can cross legislation.
I agree with the Minister's comments about the public understanding a jury decision or so on. However, there are so many definitions of mental illness that it is confusing for the general public. It is of the utmost importance that the public understands a jury decision in any court case.
On the use of the phrase "mental handicap", it is included in the Henchy report. It is fashionable to use the words "intellectual disability" for the former but "mental handicap" is not as pejorative a term as some say. We use all sorts of words in English which are then no longer considered tolerable. The word "itinerants" was used for Travellers at one point and then it became unacceptable. Every ten or 15 years we move from one word to another.
The word "handicap", in its colloquial use in golf or horse racing, means that while everyone participates in the same activity, some have an allowance made on the basis they have a particular inability. I never understood what is so prejudicial or pejorative about the use of the term "handicap". Golfers do not consider that it is prejudicial to state one is on an 18, 15 or 12 handicap. They merely consider that one is able to compete with others. It is not an exclusionary term. However, I will not get involved in a long discussion on the word.
It is crucial to remember what we are doing. Our system of justice is adversarial. Two skilled teams of barristers, one on either side, make points to a jury. It is extremely important that a judge and a jury understand, in so far as we can make the law clear, where the line is drawn. If we water a term down or use extremely vague terms, individual juries will consider that a phrase can be stretched to accommodate the particular circumstances of the case. I am not happy that should be so.
The word "intoxicant" in law does not only mean alcohol. The phrase "intoxicating liquor" means alcoholic liquor. Under the Road Traffic Act, an intoxicant is generally understood to be alcohol or a drug. We frequently hear that people are "out of their minds on drink". Regarding a murder charge, it may be that if somebody was completely poisoned with drink, he or she could not form the intention to kill or cause serious bodily harm when throwing someone down the stairs which, if he or she was sober, could amount to murder.
We do not want a situation where the law on insanity is availed of by people high on drugs or drunk. It would mean that if somebody got extremely drunk and cut another person's throat, the issue would be whether to send that person to Dundrum or another such institution. The general public would not accept that for a minute. There is clear evidence to suggest that crack cocaine can cause paranoia and some of the most vicious crimes committed recently——
It can cause personality disorder.
One cannot simply excuse people responsibility for what would otherwise be murder or another serious crime on the basis that they were high on crack cocaine or had drunk a bottle of vodka. Juries would then be in a state of complete confusion regarding what they should do with people who invoke the defence of insanity.
I acknowledge it is true that the phrase "mental illness" does not make absolutely clear to me or anybody else in society where its boundaries lie. The same applies to the phrases "mental handicap" and "disease of the mind". We must keep the issue of intoxication out of this. Allowing people to avoid all responsibility and be acquitted on the basis they were "maggoty drunk" or high on a substance at the time is a different issue. A number of amendments were tabled in various debates in which I was involved recently stating intoxication should never be a factor in sentencing. I sometimes wonder whether that is right or wrong. Sometimes, to be fair, one has to deal differently with someone who is drunk from someone who is stone cold sober. If a person puts a brick through the window of a shop when drunk, it may be appropriate to differentiate with regard to the penalty for that kind of activity and the penalty for a person who drives into town with a brick in his or her pocket and it puts it through a window. The Judiciary must, and does, make allowances for drink and while it is not an excuse, sometimes it explains why things happen.
Whatever we do, we cannot allow intoxication, either with drugs or alcohol, to become a basis for getting out of criminal liability by pleading insanity. We cannot go down that road. Anecdotal evidence suggests that drink plays a very significant part in 50% to 60% of homicides. If people can walk out of court saying that they were drunk or stoned out of their minds at the time that an assault leading to death took place, the law will be unacceptable to the public.
I ask the Minister to ensure we use the best modern terminology, in case there is some——
I will look again at the word "handicap"——
Dementia, for example, is a word of which the ordinary person would not have knowledge, even though it is a medical term. The term "mental handicap" may very well be problematic given that NAMHI, the National Association for the Mentally Handicapped of Ireland, changed its name this year. The Minister may have to do something about that term.
The name change does not mean that NAMHI was doing anything bad by using the term.
No, it was not doing anything bad and the outdated nature of the terminology is not a stated reason for the name change.
On the appropriateness of language, very few ordinary citizens would think intoxication applies equally to alcohol and drugs. It is important to be precise because there is an enormous variety of drugs available now. Alcohol has been with us forever, but many of the newer drugs have the power to impact so strongly on the mind as to effect a change in personality. The effects of such drugs might represent a step beyond intoxication as it is normally understood, although I am not sure what the best definition is. If the Minister wants to be precise, would it be better to use a phrase like "does not include a drink or drug induced state or condition"?
Between now and Report Stage I will look at the possibility of inserting an intoxicant definition.
I do not see why amendment No. 4 would not cover that. That is why we went a step further with the definition, that is, "an altered state of mind which arises from intoxication", to try to make it clear that both drink and drugs could be involved. I would have thought that amendment No. 4 backs up the Minister's thinking in this Bill and do not understand why it is not being accepted.
Magic mushrooms are openly on sale in Temple Bar and in Cork, but their effects on the minds of those who use them can be horrendous. They can have a serious mental effect but whether it constitutes intoxication or illness is a difficult question to answer.
I presume that will be dealt with in the Bill.
There is no doubt people can get appallingly drunk and do things of which they have no recollection when they sober up. When people are, so to speak, "out of their minds with drink", they can do extraordinary things. That may be relevant where intention is important, as, for example, in the distinction between murder and manslaughter. In respect of murder, it is necessary to intend to kill or cause serious bodily harm and one is presumed to intend the ordinary and natural consequences of one's actions. However, if a defendant was completely drunk when the crime was committed, a jury might be convinced that there was no intention, for example, to shove the victim off a cliff and the conviction will, therefore, be reduced to manslaughter.
A further question arises in sentencing. If the defendant, while drunk, smashed the window of a pub with a brick or by throwing a stool through it, that may or may not be relevant to the decision of whether to impose a heavy or a light sentence. Some judges would argue that the defendant should not have been drunk and would impose heavier penalties on that account. In other respects, it may be a more serious matter if someone wakes up in the middle of the night, gets into a car and, while stone cold sober, smashes the windows of a local pub. Irrespective of our views on alcohol, we have to be careful not to allow it to creep into the right to acquittal based on insanity.
I fully support that and think the Minister is correct in what he says. We agree that intoxication should be excluded with regard to mental illness but want to go a step further.
I will look at the whole question. Colloquially, most consider that the word "intoxicated" refers to drink but I am certain that the Road Traffic Act defines "intoxicant" as drink, drugs or a combination of the two. I will examine that definition.
It goes back to what I said at the beginning. If the Minister wants clear legislation that people will understand, it will do no harm to add this piece.
Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
I move amendment No. 5:
In page 4, subsection (1), between lines 8 and 9, to insert the following:
"‘mental illness' means a condition that seriously impairs, either temporarily or permanently, the mental functions of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(a) delusions;
(b) hallucinations;
(c) serious disorder of thought form;
(d) a severe disturbance of mood;
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) to (d);”.
While we have probably covered this area, we are trying further to define the term "mental illness". I accept the arguments made earlier but I ask the Minister, if he decides to re-examine the wording, to consider our proposals. As the objection was raised during Seanad debates on the Bill that we were leaving the bar too low, we have raised it with this amendment. I will not press it now but we have gone a long way towards getting it right.
Amendment, by leave, withdrawn.
Amendments Nos. 6 and 33 are related and may be discussed together.
I move amendment No. 6:
In page 4, subsection (1), between lines 10 and 11, to insert the following:
"‘patient' means a person detained in a designated centre pursuant to this Act;".
Both of these amendments are simple. The definition of "patient" should be made in the definitions section. We would prefer to remove it from section 12 and place in section 1, where definitions are normally made. They are purely technical amendments.
Since the Seanad debate at which this matter arose, I have examined the references in the Bill to the term "patient", which arise in sections 11, 12 and 13. "Patient" is defined in section 12 but it first occurs in section 11. On the face of it, therefore, it is unusual that the word is encountered before its meaning is given. I want to re-consider that issue in consultation with the Parliamentary Counsel between now and Report Stage with a view to relocating the definition, possibly to section 1 of the Bill.
Amendment, by leave, withdrawn
I move amendment No. 7:
In page 4, lines 18 to 29, to delete subsection (2).
Amendment agreed to.
Section 1, as amended, agreed to.
NEW SECTION.
Amendments Nos. 8 and 24 are related and may be discussed together.
I move amendment No. 8:
In page 4, before section 2, to insert the following new section:
"2.—Every Order (other than under section 9 or 23(2)) or regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the Order or regulation is passed by either such House within the next twenty one days on which that House has sat after the Order or regulation is laid before it, the Order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.
This amendment is intended to introduce accountability with regard to orders signed in the context of this legislation by putting them before the Houses for inspection and to enable us to determine how the legislation is being implemented. It is a caveat to ensure we see what is happening. It would be a valuable mechanism to ensure legislators did not just pass legislation to the professionals who will implement it but retained a distant supervisory role, inspected how it was implemented and dealt with it again if it did not operate as intended. While we spend hours trying to make legislation as good and accurate as possible, as we are doing today, after it passes through the Houses and out of our hands much of it is left to work without our referring to it again. To do this would establish an "umbilical cord" with the Oireachtas in order that we would know the procedure, number and circumstances in which orders were being made and inform ourselves on criminal law insanity, an important, difficult and complex area, and the people dealt with by the orders permitted under the legislation.
While I am in favour of accountability, I do not want to make the system difficult and have statutory instruments every time there is a minute change in procedure. Subsection 11(6) of the Bill reads, "the procedure of the Review Board in relation to a review by it under this Act shall, subject to the provisions of this Act, be such as shall be determined by the Review Board with the consent of the Minister and the Review Board shall, without prejudice" etc. It is proposed by the Labour Party to insert the words "by regulations made". If one takes that in conjunction with this proposal, it would mean a statutory instrument in respect of procedures at the review board. It is sometimes difficult to know where the balance should be struck between formalising everything and requiring it to be submitted to the Houses of the Oireachtas for scrutiny. While I will examine it between now and Report Stage, I think the Deputy's amendment would go too far in requiring virtually everything in the Bill to be done by regulation. I concede it is a question of judgment but having regulations and all of these things laid before the Houses of the Oireachtas tends to make an Act a little more difficult to administer.
While I understand the Minister does not want the Bill to be too cumbersome with every order and regulation coming before the House, the review board subject to the Minister is the only means of monitoring it. If we do not insert a mechanism under which it can be laid before this House for inspection, as for certain orders and regulations, we will have washed our hands of the operation of the Bill. I accept what the Minister has said but I ask him to re-examine it to see if there is some mechanism we can use.
Amendment, by leave, withdrawn.
SECTION 2.
Amendments Nos. 9 and 10 are related and will be discussed together.
I move amendment No. 9:
In page 4, subsection (2), line 36, after "Children" to insert "by order".
These are technical amendments. Amendment No. 9 provides for the insertion of the words "by order" after "Children" in subsection (2) to make it clear that the designation of centres by the Minister for Health and Children is to be made by order by that Minister. This is related to the subject on which we spoke a moment ago. We are formalising it. It is not just written on the back of an envelope in the Department of Health and Children, but a formal order. The real question is whether it should be brought before the Houses of the Oireachtas for validation, and that is the question we will examine. The Parliamentary Counsel has advised that the provision in subsection (3) is unnecessary in light of section 22(3) of the Interpretation Act and should be deleted.
Amendment agreed to.
I move amendment No. 10:
In page 5, lines 1 to 3, to delete subsection (3).
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
I have a problem with section 2(2)(b) which states “with the consent of the Minister, designate a prison or part thereof,”. In terms of a prison being designated in this instance, I presume the Central Mental Hospital would be the main institution to where people who have been found guilty but insane, as the title suggests, would be committed. That is not necessarily appropriate. I understood the purpose was to move away from committing people to prison. There is a reference to “prison” in section 1 which I suggest we change.
In addition, the section should be amended to allow for community-based mental health facilities to be designated also. The current designation is for psychiatric centres but there are many community-based mental health facilities which might be appropriately dealt with under this legislation.
If psychiatric centres are to be designated, notice must be taken of the fact that many of them already suffer from a lack of resources. That aspect must be taken into account to ensure that if people are sent to these centres, the rights of existing patients are not affected and that an onerous burden is not put on the management of the centres. If the Minister is able to designate in this instance, that aspect must be taken into account to ensure that if a designation is being made, the additional required resources will flow thereafter or that they be put in place prior to the designation. I suggest we examine the definition of "designated centre" in the context of the Mental Health Act 2001 which refers to approved centres. I intend tabling amendments to give effect to that but perhaps the Minister would like to comment on it.
Do we take that as a statement of the Deputy's intent to table amendments on Report Stage?
Yes.
I referred at some length in my Second Stage speech to the fact that I had concerns about a prison being a designated centre for the purposes of reception, detention and care or treatment of persons or classes. An unhealthy connection between prison and mental health has been established over the centuries, and there is a close connection between Mountjoy Prison and the Central Mental Hospital. There is no doubt that over the years transfers took place from a prison to a mental hospital on inappropriate medical grounds and the procedures used for the transfer left a lot to be desired. If a prison or part of a prison is designated for the care and treatment of a person, what will that mean in practice? Prison staff members are employed to detain a person in prison for the prescribed term of imprisonment on conviction for a crime. They do not have a role in the care and treatment of offenders.
By doing this, we are reverting to old habits and procedures whereby there was an overlap between the detention of a person in a prison and in a mental institution. This is not just unhelpful but dangerous. It is impossible to see where a level of treatment would arise in an institution that is specifically designated to detain offenders for a prescribed period, unlike another institution that has as its primary focus the care and treatment of offenders, that is, people who have been found by the court to have a mental illness and to have committed an offence in which there was a strong element of mental illness or mental disorder involved.
We are also talking about the Minister's latest project, Thornton Hall. There is still a possibility that the Central Mental Hospital in Dundrum will be transferred to the same campus. I do not know what is meant by this. Section 2 is stark and would go against the grain of modern thinking with regard to dealing with somebody who is transferred to a designated centre if we allow the word "prison" to be included in legislation along with the words "care" and "treatment" of the persons involved.
I appreciate the point made by the Deputies. However, the power for the Minister for Health and Children — it is not a power of the Minister for Justice, Equality and Law Reform — to designate a prison or part of a prison as a centre for the reception, detention or, where appropriate, care or treatment of persons or classes of persons is confined to persons or classes of persons committed or transferred thereto under the provisions of this legislation. It is not as if the Tánaiste could decide one morning to allow lay people to be committed to a prison under the mental treatment Acts. That is not what is provided for in the legislation. The person must be committed or transferred under the provisions of this legislation before that could arise.
Curiously, this is not a new issue. The Henchy report proposed the establishment of special units. In paragraph 12 of that report, Judge Henchy's committee stated that there was a need for a special category for persons who are not suitable for detention either in a prison or in a designated centre. Those are persons who come within a class sometimes referred to as psychopaths or sociopaths but whom the committee considered it more proper to identify as persons suffering from a persistent disorder, disability or personality which manifests itself in abnormally violent or aggressive conduct. Due to their propensity to cause injury to themselves or others, such offenders create problems of security and therapy or care for which prisons or kindred institutions are not equipped to cope.
Designated centres would also not be suitable for the detention of such persons for, as the committee was advised, such persons are not generally amenable to any conventional psychiatric therapy and the conditions of high security which they require would be otherwise counterproductive in a designated centre. As there is likely to be, at any given time, a small number of such persons requiring suitable detention, the Henchy committee envisaged the designation by the Minister for Justice, Equality and Law Reform of a unit which the Bill refers to as a special unit for the detention of such persons. The special unit should be designed and run to deal best with the special problems presented by such persons who, according to the expert advice available to the committee, do not fit into any recognised category of mental disorder and do not accordingly qualify for exemption from criminal liability by reason of mental disorder.
In the Seanad I used a phrase in the context of an amendment tabled by Senator Henry. I commented:
On the other hand, there may be rare situations where it might be appropriate to detain a person in a prison rather than a psychiatric hospital. That unfortunately is the reality of the situation. We cannot rule out the possibility that at some stage the requirements of public safety might override other considerations and that a person may have to be detained within the confines of the most secure facility available ... I am talking here about a rare phenomenon or possibility; a Hannibal Lecter kind of situation where it would be necessary for somebody to be kept in the most secure accommodation possible. In such case, no mental institution, including the Central Mental Hospital, would be appropriate for that person. Any concerns about the treatment, care and well being of a person detained in such circumstances are met by the provisions of the Bill governing the establishment of a new mental health review board and the extensive provisions of the Mental Health Act 2001.
The Henchy committee envisaged having a special unit somewhere, but I cannot imagine building a special unit on a greenfield site waiting for Hannibal Lecter to turn up. The Department of Education and Science has enough problems with its special units which ended up with 70 staff and no young offenders in them, which is a minor problem.
I am being practical. It will be used exceedingly sparingly and will be initiated not by me or my successor but by the then Minister for Health and Children. It is to deal with a category of people who, if they were put in any kind of psychiatric institution, would effectively transform that institution into a prison.
I fully appreciate what Deputies Costello and Ó Snodaigh are saying — that if a portion of a prison is dedicated to a unit of this kind, that is in some sense unsatisfactory. However, it may be equally unsatisfactory to say that a progressive, liberal and therapeutic environment must also have within its confines a high security base with alarm bells, double doors, locks and guards constantly surrounding a particular person. The real issue is where one is going to locate Judge Henchy's special unit. The view taken was that it is more likely to be in a prison than in a stand-alone site or in a properly run mental hospital. That is the background to it.
It is more a question of the way the Minister has expressed the matter. It is presented quite starkly here, whereby reception, detention, care or treatment are juxtaposed and one is equal to the other as though they went hand in glove. Subsection (2) provides that after consultation with the mental health commission, the Minister for Health and Children may designate a psychiatric centre, prison or part thereof, with the consent of the Minister for Justice, Equality and Law Reform. There is no mention of any special unit. Obviously, the only reason the Minister for Health and Children is consulting the Minister for Justice, Equality and Law Reform is because the latter Minister is responsible. There is nothing in the subsection to state that the Minister is suggesting this option in exceptional circumstances.
I will tell the Deputy what I mean.
In years to come we may not get a benign Minister like Deputy McDowell or, indeed, a benign Minister for Health and Children such as the Tánaiste, Deputy Harney, who see eye to eye on these matters.
In subsection (2), line 36, I will consider deleting the words "after consultation with the mental health commission", and make them applicable to both (a) and (b). That might deal with the issue. If I made the consultation mandatory for either procedure it would ensure that there would be a check or balance in respect of the use of that power under paragraph (b). Obviously, there has to be the consent of the Minister for Justice, Equality and Law Reform. As one cannot have the Tánaiste simply designating parts of a prison against my wishes, I must have a right. On the other hand, I take the point that the Mental Health Commission consultation procedure seems to apply only to paragraph (a) and does not apply to paragraph (b). It might well be the case that people would feel it appropriate that some outside body should have some input into a paragraph (b) decision as well as a paragraph (a) decision.
The two Ministers are from the same party.
I can understand some of the Minister's logic in terms of a prison and the need to separate the security aspect from psychiatric institutions. Although I have never been there, I presume the Central Mental Hospital has secure units within it to provide for incidents where people have bouts of mental illness whereby they become a danger to themselves or to staff.
There is another aspect. If one were to create a secure unit — I hope it would never be used other than in the type of incident the Minister talked about, a Hannibal Lecter situation — based in the Central Mental Hospital, at least the medical and other staff would be on hand to try to address the mental disorder of the person confined there. Otherwise, we will end up having such a person in prison with staff having to travel from wherever they are located. If it were in Thornton Hall, they would only have to go from one end of the structure to the other. The Central Mental Hospital has safeguards for patients who are a danger to themselves or to staff.
The Government was considering this issue today and its view of mental health institutions generally will be incorporated into a report to be published by the Tánaiste. Without in any way anticipating the publication of that report, the emphasis is clearly going against stand-alone psychiatric hospitals and in favour of acute psychiatric units in other hospitals. In that context, we will put one of Henchy's special units into either Dundrum or a prison, but one cannot have it out in St. Vincent's psychiatric ward. That is not a runner. One cannot have Hannibal Lecter being kept out in St. Vincent's Hospital. That is definitely not possible. I will re-examine this matter.
I take the point that Deputies Ó Snodaigh and Costello are making. It is not that I do not see the point, it is just that I want to put in place something which is workable and which takes into account what Judge Henchy identified — was it 25 years ago? It was a long time ago.
Yes.
It was in 1978, when the draft Bill was first proposed. My advice is that the issue has not changed. We will have to do something to address that exceptional circumstance. As regards Deputy Costello's point, it is a centre for reception, detention and, where appropriate, care or treatment. There are some people who are beyond care or treatment.
I was reminded today of a case I came across as a barrister where somebody was so violent that she was in a ward in a mental hospital, but her bed was surrounded by a cage. I became aware of this situation because on one occasion the door to her cage was left open and she got out and assaulted a psychiatric nurse. The question was whether the hospital was liable for the negligence of somebody in not locking her cage. That summons up a horrific 19th century picture. Some are beyond medication and treatment and must be dealt with in very secure circumstances. Whatever we do, let us remember the Minister for Health and Children will make the decision in this case, not the Minister for Justice, Equality and Law Reform. If we make it conditional on a consultation process with the Mental Health Commission, there is no issue of my somehow identifying a corner of a prison which will be used as a type of dungeon for people with mental health problems. I do not intend to do that.
The committee should know this has nothing to do with padded cell use in prisons. This is for people who are, as a result of a process, required to be put into a designated centre. The padded cell issue is dramatically different. In case the committee is not aware, I should state that nearly all padded cells have now been eliminated in the prison system and the remaining ones will be eliminated in the next month or two. Padded cells have been radically improved. They are not places in which any of us would like to spend much time but at least they now have a television, natural light, an elevated bed and so on. They are no longer what they used to be, that is, dark little holes into which people were put in semi-darkness with a rubber mattress on the floor and a pot. They are totally different now.
We appreciate the good work the Minister has done on padded cells. It is very welcome. Why is there a need to designate a prison? One is talking about a very small number. If one designates a prison, it smacks of a return to the old way and it suggests the person can be put anywhere in the prison. A part of a prison means that at least the Minister has taken some care in regard to——
I agree with that point. I may take out that word but I want to be careful about this. If somebody is put into a part of a prison, I do not want it to be the case that he or she cannot, for instance, use the exercise yard or whatever because other prisoners use it. I will consider that point. If I can narrow it down——
We know of the abuse which has taken place and which, to my mind, continues to take place in regard to the Central Mental Hospital and Mountjoy Prison, in particular, and the procedures used. It is easy for somebody to be transferred between those two institutions. Such transfers do not always take place for the best medical reasons. If this is left too loose, the danger is people will take the easy option. One must remember we are talking about somebody whose essential problem is one of health, or lack of it. Therefore, whatever else the legislation reflects, it should reflect that as the foremost priority.
I will consider the question of the whole prison as it seems a very broad thing to do. Let us remember that wherever we put a special unit, there will have to be a high wall and security around it and the idea of doing so other than in a prison seems to be very unlikely. I cannot imagine places in which that could be done.
Question put and agreed to.
As I hope to adjourn in 45 minutes, I ask members to adopt a speedy approach or whatever is necessary.
SECTION 3.
Amendments Nos. 11 and 12 are related and may be discussed together.
I move amendment No. 11:
In page 5, between lines 13 and 14, to insert the following subsection:
"(2) An accused person is presumed to be fit to be tried unless the contrary is shown.".
I am not sure why amendments Nos. 11 and 12 are being discussed together. I will withdraw amendment No. 11 as I have read back over the Minister's comments in the Seanad and do not believe it is necessary to discuss it further.
Amendment No. 12 returns to the matter of clarity. The Minister deemed it unnecessary in the Seanad because the word "or" was inserted after section 3(2)(e). While I understand the meaning of this section, it needs to be clarified further. That is why I ask the Minister to accept the amendment inserting the words “such that he or she cannot do all of the following”.
It is not a matter of clarification. The provisions reflect existing case law and it was never intended that the conditions cited at paragraphs (a) to (f) should be applied conjunctively or cumulatively. This is evidenced by the inclusion of the word “or” at the end of paragraph (e). The clear policy is that the existence of any one of the conditions mentioned in paragraphs (a) to (f) will be sufficient basis for the accused person to be deemed unfit to be tried. It will not need to be all of them.
It will be any one of them.
It is disjunctive.
Our interpretation was that it had to be all of them. That is why this amendment was tabled.
No.
That is fair enough. I will withdraw amendment No. 12.
Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
Amendments Nos. 13 and 15 are related.
I move amendment No. 13:
In page 6, subsection (4)(a), line 3, to delete “court” and substitute “Court”.
This makes it clear that the reference to the court should be understood as the District Court. In subsection (4)(a), the court in question is the District Court, as evidenced by the reference to "the Court". However, in line 3 on page 6 there is an erroneous reference to the court with a small “c” which follows the definition in subsection (3)(a) which means a court other than the District Court. This should be changed to a capital “c”. That is a small matter. Amendment No. 15 relates to the same issue.
Amendment agreed to.
I move amendment No. 14:
In page 6, subsection (4), lines 10 to 18, to delete paragraph (c) and substitute the following:
"(c) If the determination under paragraph (b) is that the accused person is fit to be tried, the person shall be sent back by the court of trial to the District Court to enable that court to exercise its functions under the Criminal Procedure Act 1967.”.
Section 3(4)(c) indicates that the Criminal Procedure Act 1967 shall apply as if an order returning the person for trial had been made by the District Court. Effectively that would mean that a determination would not be made in the District Court. In other words, once the fitness to plead issue had been dealt with, the District Court would be skipped and one would go straight to the Circuit Court. Is that a healthy option, that is, that the matter would not be dealt with first in the District Court and that the merits of the case and so on would be adjudicated there? Skipping to the Circuit Court is an easy option and it immediately suggests a much more serious matter because it is being taken in that court. Would it not be better to act is if the case had been heard in the District Court? The merits of the application should be heard in the District Court in any case.
Section 4A of the Criminal Procedure Act 1967 provides that a person charged with an indictable offence before the District Court will be sent forward for trial save where the matter is to be tried summarily, where the accused pleads guilty or where he or she is unfit to plead. One is sent forward unless one is unfit to plead. The purpose of section 3(4) and part of subsection (4)(c) is to avoid the situation where an accused person goes backwards and forwards between the District Court and the court of trial. If one ends up in the court of trial, it is not proposed to send one back to the District Court for a second run at it, so to speak. At that stage, it will be dealt with by the court of trial.
The trial process will be entirely avoided in the District Court.
Yes. The District Court will, at that stage, be spent in the process and the Circuit Court——
Once a plea of insanity or fitness to plead is dealt with and the person has been declared unfit to plead, all cases will go straight to the Circuit Court for determination. Is that the position?
The District Court loses seisin of the case once this process under section 3 has been invoked.
What are the implications of that for the person who is before the court? Effectively, it means that the case is then treated more seriously. What sort of staffing and representation are required?
Section 4A of the 1967 Act provides that one must be sent forward except where one is tried summarily, where the accused pleads guilty, or where he or she is unfit to plead.
I can understand a summary offence. It is not very serious. If somebody pleads guilty, obviously the matters can be dealt with easily. If somebody is unfit to plead, however, he or she is equally unfit to plead in the Circuit Court and the District Court.
On a summary offence one will not be sent forward for trial. However, if one comes before the Circuit Court and it is established there that one is unfit to plead, the Circuit Court——
But one would be coming before the District Court. Will it not be established there? Then one will not be dealt with in the District Court at all.
I will look at the matter between now and Report Stage. It is my understanding, on the basis of my note, that section 4A of the 1967 Act provides that a person is sent forward for trial except if he or she will be tried summarily, if the accused pleads guilty, or if he or she is unfit to plead.
That is what I am questioning, the grounds for including unfitness to plead with a summary offence. The District Court——
The District Court is to look at a person and state he or she is unfit to plead. There is no point in sending the person off and wasting the Circuit Court's time with the person if he or she is not fit to plead.
However, the person goes to the Circuit Court. The District Court will deal with none of these cases and they all will be referred to the Circuit Court because there is an unfitness to plead determination at the District Court stage.
I can arrange for the Deputy to see the section but it seems to me that the District Court is more or less mandated to stop a case where the accused is unfit to plead from going to the Circuit Court in the first place.
That is what I am questioning. It is the seriousness of the offence that determines whether somebody is dealt with in the District Court.
Regardless of whether it is serious, if one is manifestly unfit to participate in the criminal justice process at either level one should be stopped at the beginning.
I would not disagree with that at all but it means that the return for trial process in the District Court is now stopped.
Perhaps we are at cross purposes. Subsection (3)(a) deals with the case where somebody is charged with a summary offence or an indictable offence which is being tried summarily. Subsection (4)(a) states that where an accused person is before the court charged with an offence other than an offence to which paragraph (a) applies, any question as to whether that person is fit to be tried shall be determined by the court of trial. I think the Parliamentary Counsel has covered the point to which the Deputy refers.
Subsection (3)(a) deals with an indictable offence triable summarily or a summary offence. It states that the District Court decides the issues. Subsection (4)(a) states that if the District Court has not jurisdiction to deal with the accused, it is for the Circuit Court to decide the issue.
I will leave it.
Deputy Costello may ruminate on the amendment and bring it back on Report Stage if necessary.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 6, subsection (4)(c), lines 13 and 14, to delete “District”.
Amendment agreed to.
Amendments Nos. 16 and 22 are related and may be discussed together.
I move amendment No. 16:
In page 6, subsection (6)(a), line 48, to delete “, (4)”.
These are technical amendments.
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
I wish to inform the committee that it may be desirable to allow for periods of extension to the 14 day period set out in section 3(6)(a)(i) along the lines provided for in section 4(3)(b) and it may also be desirable to reduce the overall period in that section from the maximum of six months to a period more in keeping with a similar provision in the Mental Health Act 2001. I will discuss that matter with the Department of Health and Children and may bring forward an amendment on Report Stage.
I also wish to consider certain matters that have been raised with that Department as to how courts may deal with persons in fitness to be tried cases and those who have committed violent offences. This involves reconsidering sections 3 and 4 of the Bill. If the Department of Health and Children comes forward with good arguments for amendments, I may table them on Report Stage.
Question put and agreed to.
SECTION 4.
I move amendment No. 17:
In page 8, between lines 6 and 7, to insert the following subsection:
"(2) Where a person has been found guilty of an offence, but prior to passing sentence the court becomes of opinion that the person is suffering from a mental disorder, the court having imposed a sentence may recommend that the sentence shall be served in a specified designated centre until such time as the person is no longer in need of in-patient care and treatment and shall thereafter be served in a prison or place of detention, and the Minister shall have regard to such a recommendation.".
I must delete the word "prison" from the amendment, in the context of what the Minister may be doing. The amendment refers back to the court the jurisdiction to have certain options or flexibility in the sentencing process, that, in other words, a determination by the judge, which is not provided for in the legislation, could be that a person is sentenced to an institution where he or she will receive care and treatment and where that is successful, he or she can be referred to a place of detention where the remainder of the sentence could be served.
If any judge made a recommendation, except in an extraordinary circumstances some regard would be had to it. It would not be simply put on a spike or into a shredder because it came from a judge.
The real question is this. It is open to judges to make recommendations on passing sentence. When one considers such a situation it is hard to see how judges making such recommendations at a very late stage in the trial could really make persuasive recommendations without medical advice to support it. In general, as a matter of principle, rather than putting into the judge's side of the tennis court the function in this respect of a formal kind, it is better for the Prison Service to make decisions rather than the Judiciary because it has the time to reflect on the person who is before it. It is not just hearing a plea in mitigation, and a nominated doctor, where the prosecution has not had time to examine the report in great detail or bring its own countervailing report stating whether it accepts it.
It would be better to leave this as it is at present, that judges are perfectly free to make recommendations and the Department and the Prison Service are aware of those recommendations when they are made. Formalising the function for the Judiciary to start making recommendations of this kind, first, presupposes that judges are expert in this area, which many of them are not. With the best will in the world towards the Judiciary, many of them are no better or no worse judges of that issue than other people involved in the criminal justice process.
Second, if we insert this provision in the section, there will be lawyers stating that they want to make an application to the court for such a recommendation and it would slow the process down. It would provide for a hearing before a judge in circumstances where it would be, in general, as a matter of principle, better that the Judiciary are not invited by statute to make recommendations of this kind. If the recommendations are to be treated respectfully, one will be in a position where judges should hear both sides on the issue and should look behind what they hear from a doctor, psychiatrist or whoever on one side and allow the prosecution challenge it. I believe that in those circumstances it overly formalises matters.
The problem is that if somebody is sentenced by the court, what will happen if he or she is declared sane? They must return to court for another hearing, which is equally cumbersome. The court can only send the person to a designated centre as it has no other powers under the Bill. The options are limited without a return to the court.
How would the Deputy see it working out if the order continued and remained at the end of the sentence?
The judge would say somebody suffered from mental disorder condition and he or she would be sentenced to a designated centre. If the medical people to whose attention and care the person was submitted then determined he or she was no longer in such a condition, the person would be referred to an ordinary prison to serve the rest of the sentence rather than in a mental institution. The judge could determine that matter.
The amendment implies that everybody who has been sentenced with a mental disorder will become sane during the course of the sentence.
It suggests the court "may recommend".
It implies the person will be sane during the course of the sentence. It states: "until such time as the person is no longer in need of in-patient care". What happens a person who continues to be in need of in-patient care, even after the end of the period of the sentence?
That would still be covered. The designated centre would remain the designated centre to cover that matter.
Has the Minister any other response?
This amendment was debated in the Seanad. While I understand the reasoning behind it, it is better to leave matters as they are.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 8, subsection (3)(b), line 30, to delete “section” and substitute “subsection”.
Amendment agreed to.
I move amendment No. 19:
In page 8, subsection (4)(b), line 44, to delete “section 5” and substitute “section 5(1)(c)”.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill".
With regard to section 5, I intend to consider whether I should change the law of infanticide which currently has a reference to a necessary condition for a finding of infanticide that at the time of killing, the balance of the mother's mind was disturbed by reason either of not having fully recovered from giving birth to the child or, secondly, the effect of lactation after the birth of the child. This was medical science in the 1940s. I may want to look at this again.
Postnatal blues it is known as now.
It is postnatal depression eventually. Lactation is not necessarily connected to the subject.
Question put and agreed to.
Section 6 agreed to.
SECTION 7.
Amendments Nos. 20 and 21 are related and may be discussed together.
I move amendment No. 20:
In page 10, subsection (4), line 27, after "effect" to insert the following:
"and, in that case the provisions of section 3(5)(c) shall apply”.
These are technical amendments.
Amendment agreed to.
I move amendment No. 21:
In page 11, subsection (9), line 17, after "effect" to insert the following:
"and, in that case the provisions of section 3(5)(c) shall apply”.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
I move amendment No. 22:
In page 11, subsection (1), line 27, to delete "3(4)(d),”.
Amendment agreed to.
Section 8, as amended, agreed to.
Sections 9 and 10 agreed to.
SECTION 11.
Amendments Nos. 23, 25 and 28 are related and may be discussed together.
I move amendment No. 23:
In page 13, subsection (4)(b), line 15, to delete “tribunal” and substitute “Review Board”.
These are three technical amendments that tighten up the wording of the Bill.
Amendment agreed to.
Amendment No. 24 not moved.
I move amendment No. 25:
In page 13, subsection (6)(a), line 44, after “the” where it secondly occurs to insert “Review”.
Amendment agreed to.
Amendments Nos. 26 and 27 are related and may be discussed together.
I move amendment No. 26:
In page 13, subsection (6)(b), line 48, to delete “or” where it firstly occurs and substitute “and”.
These are two technical amendments providing for a clarification of the meaning of the section.
Amendment agreed to.
I move amendment No. 27:
In page 13, subsection (6)(c), line 51, to delete “or” where it firstly occurs and substitute “and”.
Amendment agreed to.
I move amendment No. 28:
In page 14, subsection (6)(e), line 10, to delete “for Justice, Equality and Law Reform”.
Amendment agreed to.
Amendments Nos. 29 to 32, inclusive, are related and may be discussed together.
I move amendment No. 29:
In page 14, subsection (6)(h), line 23, after “oath” to insert “, affirmation”.
As the Minister knows these amendments are concerned with the word "affirmation", I will not go into detail.
This came up in the Seanad and I agreed that I would consult the Parliamentary Counsel about it. In the Interpretation Act 1937, paragraph 20 of the Schedule states, "The word "oath", in the case of persons for the time being allowed by law to affirm instead of swearing, includes affirmation." Therefore, wherever the word "oath" appears in an Act, it includes "affirmation".
That is fine as long as the ordinary member of the public understands it. Only the word "oath" is mentioned here. They are two separate words.
It is a matter of public law now. In the Interpretation Act 2005, the word oath is interpreted, "‘oath', in the case of a person for the time being allowed by law to affirm or declare instead of swearing, includes affirmation or declaration".
If the public understood it in 1937, it will surely understand it now.
Amendment, by leave, withdrawn.
Amendments Nos. 30 to 32, inclusive, not moved.
Section 11, as amended, agreed to.
SECTION 12.
Amendment No. 33 not moved.
I move amendment No. 34:
In page 15, subsection (2), line 19, after "director" to insert the following:
"of the designated centre where the patient is detained".
This is a technical amendment to make it clear that the "director" is the director of the centre where the patient is detained.
Amendment agreed to.
Amendments Nos. 35, 37, 39 and 40 are related and may be discussed together.
I move amendment No. 35:
In page 15, subsection (5), lines 53 and 54, to delete "for the patient's disposal" and substitute "in relation to the patient".
These amendments are technical in nature and largely concerned with tidying up some of the provisions and language of the Bill. They arise from a change which I introduced in the Seanad when I amended subsection (7), following comments from Senators that the word "disposal", seemed somewhat inappropriate.
Amendment agreed to.
Amendments Nos. 36 and 38 are related and may be discussed together.
I move amendment No. 36:
In page 16, subsection (7), line 13, to delete "and" and substitute "or".
These are two technical amendments.
Amendment agreed to.
I move amendment No. 37:
In page 16, subsection (7), lines 15 and 16, to delete "as to how the patient should be dealt with" and substitute "in relation to the patient".
Amendment agreed to.
I move amendment No. 38:
In page 16, subsection (8)(b), line 43, to delete “treatment or care” and substitute “care or treatment”.
Amendment agreed to.
I move amendment No. 39:
In page 16, subsection (8)(b), lines 44 and 45, to delete “for the patient’s disposal” and substitute “in relation to the patient”.
Amendment agreed to.
I move amendment No. 40:
In page 17, subsection (9), line 2, to delete "for the patient's disposal" and substitute "in relation to the patient".
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
I move amendment No. 41:
In page 17, subsection (2), line 19, after "the" where it thirdly occurs to insert "other".
This is a technical amendment, the purpose of which is to clarify that the reference to "centre" at the end of subsection (2) is to the other centre to which the patient is to be transferred, not to the first centre from which he or she is being transferred.
Amendment agreed to.
Amendment No. 42 not moved.
Question proposed: "That section 13, as amended, stand part of Bill."
I know amendment No. 42 could not be accepted. However, will the Minister take a look at what would happen if the risk to assessment is underestimated?
I regularly sign orders in respect of a mentally ill patient, allowing him or her out for a time and on occasion I question whether I am making the right or wrong decision. I must sign the orders with the therapeutic interest of the patient at heart because the people concerned have been acquitted; they are not guilty. It is not reasonable to say the State should pick up the tab if anybody makes a mistake, because that would mean that very cautious decisions would be made rather than therapeutic decisions.
I accept that but we feel there is a great responsibility on the people making the decisions. While most of them carry out their job properly, there is a fear there could be consequences and this reference should be included. We would accept this in the Minister's wording.
I do not wish to suggest in any way that people might be liable if they made a mistake. I am not 100% sure that if a grossly negligent decision was made at the moment, that there would be absolute immunity. That is a matter for the courts to work out.
If the Minister signs the order, the State must be responsible.
Question put and agreed to.
SECTION 14.
Amendment No. 44 is cognate on amendment No. 43 and both may be discussed together.
I move amendment No. 43:
In page 19, subsection (6)(a), line 21, to delete “statement” and substitute “certification”.
Amendment agreed to.
I move amendment No. 44:
In page 19, subsection (6)(b), line 23, to delete “statement” and substitute “certification”.
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 and 16 agreed to.
SECTION 17.
I move amendment No. 45:
In page 21, subsection (1), line 10, to delete "the mental condition" and substitute "a mental disorder".
In sections 14 to 16, inclusive, we are looking at possible amendments concerning prison transfers to and from designated centres. There is a possibility that I will tender some amendments in this regard on Report Stage but I am not sure.
Amendment, by leave, withdrawn.
I move amendment No. 46:
In page 21, subsection (1), line 12, to delete "of arraignment for the offence" and substitute the following:
"of the accused being asked how he or she wishes to plead to the charge."
This amendment arises from an amendment introduced by me on Report Stage in the Seanad in response to a Fine Gael amendment on Committee Stage. The word "arraignment" in subsection (1) connotes procedures in the court and, strictly speaking, its applicability to the District Court is slightly doubtful. We have included words that are applicable to the District Court and pertain to indictment procedures. One does not refer to people being arraigned in the District Court.
Amendment agreed to.
Section 17, as amended, agreed to.
Sections 18 to 22, inclusive, agreed to.
NEW SECTION.
I move amendment No. 47:
In page 23, before section 23, to insert the following new section:
23.—The Freedom of Information Act 1997, is amended in paragraph 1(5) of the First Schedule, by the insertion of the following:
‘(b) the Mental Health Review Board,’.”.
This amendment is to ensure the Freedom of Information Act would apply to the mental health review board, which is established under section 10. It has been included because of the contempt often shown for the Freedom of Information Act. I ask that it be accepted and see no reason why it cannot. No doubt, the Minister will have some reason.
We do things the wrong way around. All legislation should be presumed to be subject to the Freedom of Information Act. I am not criticising this amendment but we do have to insert instances of where the Act is applicable. There should be a presumption that freedom of information legislation applies to all legislation unless those parts to which it should not apply are specified. This would be a healthier option. In any case, I fully support this amendment.
As the committee knows, it is open to the Government, by order, to designate additional bodies. I do not want to start amending the Freedom of Information Act at this point but it is open to the Government to make an order extending the ambit of the existing legislation. I note what Deputy Costello says about having a presumption in the Oireachtas that the legislation apply in one way rather than the other. It is the wrong time of the afternoon to start discussing this.
I noted also the Information Commissioner's recently expressed views on these matters and it is not as if I am unmindful of them. It is clear that the review board will have ongoing access to confidential and sensitive information. Section 11(8) provides that meetings of the board shall be held in private. Section 11(9) also provides that the documents, reports and statements of the review board shall be absolutely privileged. The question as to whether they should be the subject of FOI accessibility is one on which I would have to think long and hard. I would like to take into account actual experience before making them such.
Will the Minister consult the commissioner?
The commissioner is always entitled to express a view on the matter and I welcome her views.
This has been the most secretive coalition Government in the history of the country.
Let us remember that there was a procedure whereby Opposition parties could apply to the Minister for Finance to have their policies costed in complete confidentiality and secrecy. It was such that Fine Gael, in preparing for the next general election, could bounce ideas off the Department of Finance so they could be costed. This measure was to enhance and strengthen democracy. The former information commissioner was going down the road of making applications for costing subject to freedom of information legislation. It did not all cut one way. I have the greatest respect for the former Information Commissioner, Mr. Murphy, but the decision taken under his aegis struck me as unhelpful in that an Opposition party, such as Fine Gael or the Labour Party, can no longer go to the Department of Finance in confidence to test its policies without my writing a freedom of information application asking what it is up to. I do not accept this.
Can we come back to my amendment?
That was one of the amendments made by the Government.
If the Deputy attended this committee more often, he would note that it is very seldom that we discuss particular amendments.
I might attend more often. If it is the Government's decision to include this, will the Minister, as a member of the Government, raise my concerns? I know he has concerns about what information is circulated but I understand certain information is held back in any case, to be dealt with at the time designated. I do not believe it is for us to decide what is sensitive or not. I will withdraw the amendment if the Minister agrees to give it some thought.
The question on that matter might be put to the appropriate Minister.
I will draw it to the attention of the appropriate Minister, I will not make any commitment beyond that.
Is the Deputy pressing the amendment?
I would like to but I will withdraw it if the Minister agrees to give it some thought.
I do not know if he will. Is the amendment withdrawn?
I have had no serious commitment that the Minister will give it any thought.
Will the Minister give it a little thought?
Yes.
That will do for now.
Amendment, by leave, withdrawn.
Amendment No. 48 not moved.
Section 23 agreed to.
Schedules 1 and 2 agreed to.
TITLE.
I move amendment No. 49:
In page 3, line 15, after "A" to insert the following:
"BODY TO BE KNOWN AS ANBORD ATHBHREITHNITHE MEABHAIRSHLÁINTE (AN DLÍ COIRIÚIL), OR, IN THE ENGLISH LANGUAGE, THE".
It is clear what this amendment seeks to achieve. I am playing the green card and want to see the first language included in the Title. It should not refer solely to the establishment of "A MENTAL HEALTH REVIEW BOARD" but should also include its title in Irish.
I agree with the Deputy. This amendment is typical of him and I accept it.
Amendment agreed to.
Title, as amended, agreed to.
In some instances in the text reference is made to a person having "committed" certain acts. I intend to consider replacing the word "committed" with "did" throughout the Bill. This is a drafting point that I want to consider.
I thank the Minister and his officials for attending.