Ivana Bacik

Second Stage

17th February 2010

Senator Ivana Bacik:  I welcome the Minister of State to the House and apologise for not having been present for the entire debate as I was attending two joint committee meetings. On behalf of the Labour Party, I welcome the Bill which makes some sensible amendments. I would like to see some further amendments which I shall outline shortly. The Minister of State stated the Bill does not represent “a full review of the operation of the Criminal Law (Insanity) Act 2006”, and clearly it does not constitute a full review of that Act. However, I am glad the Minister for Justice, Equality and Law Reform plans on having a full review once this Bill has been enacted.

I did some research on the 2006 Act and spoke on it a number of years ago in Trinity College at a conference on evidence-based mental health services for Ireland. I was very fortunate to hear from psychiatrists and medical practitioners who have a very different perspective to offer on this Act and also on the Mental Health Act 2001, which came into force on 1 November 2006. The implication of those Acts has been a welcome change in the focus of our mental health services. We have moved towards a more rights-based approach, which I very much welcome. I wish to quote Dr. Anne Marie O’Neill, who has written one of the leading texts on Irish mental health law, who pointed out:

[T]he philosophy of the law has progressed significantly from the days of incarceration and control of “lunatics” as a matter of public order when the issue of rights was considered anathema in the light of the “problem” to be solved. It has moved from this stage to a welfare philosophy where the state’s intervention was perceived as benign and as in the interests of the welfare of the person with mental illness so that the issue of rights was considered irrelevant. Now it is faced with a new challenge: that of acknowledging that the recognition of the rights of the person with mental illness is an essential ingredient of the ethical carer/patient relationship.

Moving away from that incarceration model to the welfare model, we still have not moved fully to the recognition of the rights of persons with mental illness. However, we are moving that way and the Bill represents a step in that direction.

I shall make a few more general points before talking more particularly about the amendments in the Bill. At a general level, we have always seen in the criminal law - I speak as a practising criminal barrister - an uneasy relationship between the criminal justice system and the area of medical, psychiatric and psychological sciences. The criminal law is of particular relevance because there has been a relatively frequent occurrence of cases in which crimes have been committed by persons with mental disorders, often by reason of those mental disorders, as a result of which they may not have been able to form a requisite intent for a crime or they may not have had the capacity to understand the criminal justice process. In the criminal justice system we have wrestled with the difficulty of accommodating recognition of persons with mental illness. It is a matter of shame that so many persons with mental illness continue to be incarcerated in our prisons when in fact they require medical treatment.

We have seen the development of a defence of insanity at common law and very overdue reforms of that in the 2006 Act. However, although the 2006 Act is clearly more enlightened than the legislation that previously governed this area, it is most unfortunate that the 2006 Act and the Bill before us continue to use the judgmental and outmoded word “insanity” in the title, especially as our mental health legislation and our psychiatric services would no longer use that language. There is a corollary, which is that the relationship between the 2006 Act and the Mental Health Act 2001 remains somewhat unclear. In particular, different definitions of mental disorder are used in both. The 2001 Act, which governs the civil law aspects of voluntary and involuntary detention in psychiatric institutions, deals with a narrower definition of mental disorder as being a psychiatric disorder necessitating treatment, whereas the 2006 Act covers a much broader definition of mental disorder, governing persons who would not in the psychiatric sciences be regarded as suffering from psychiatric illness at all. To some extent there are inevitable differences between the definitions on the mental health side and the criminal justice side, which is unfortunate. Dr. Simon Mills, who has written extensively on the subject, said that retaining these two very different categories of so-called insanity or mental disorder may lead to difficulties. One of the difficulties is now being acknowledged in the Bill, which is that a person may be discharged from psychiatric care but subject to certain conditions. This was a major flaw in the 2006 Bill.

I wish to move to consider the first key reform in the Bill, which I welcome. It is the reform that will allow enforceable conditions to be applied to conditional discharge. As the Minister of State has said, the 2006 Act envisaged a rather black and white situation. Either the person required inpatient treatment or was completely cured. That neglected or ignored the reality in psychiatric care where there might well be persons who are capable of some sort of conditional discharge. I very much welcome the amendments to section 13 of the 2006 Act contained in sections 6 and 7 of the Bill which will allow conditional discharge subject to enforceable conditions. That will allow persons to be discharged. I note that the Minister of State has stated that there is a certain urgency attached to this in that persons are currently being detained when they should, if the law allowed it, be considered for conditional discharge. That is a very serious matter and I know there is litigation on it. I welcome those amendments and the conditional discharge principle is important.

The second important reform in the Bill is the one which I say does not go far enough. In his speech the Minister of State acknowledged that further amendments could be made. I refer to the amendment of section 4 of the 2006 Act contained in section 3 of the Bill relating to what was called the fitness to plead procedure. The procedure in section 4 of the 2006 Act used fitness to be tried to replace the old common law idea of fitness to plead. That change, allowing the judge to decide on the issue of fitness to be tried, was a very welcome reform. However, there were problems in the 2006 Act which are recognised in the Bill. Its failure to provide for medical evidence to be given to the judge was a difficulty.

Section 4 represented a serious improvement on what had been the case prior to 2006. Previously when a person was found unfit to plead - the old language - the judge had power to direct his or her indefinite detention in the Central Mental Hospital. Professor Dermot Walsh, a leading writer on criminal justice matters, had queried the constitutionality of this power and its compatibility with European convention. While section 4 represented a major change, section 3 of the Bill makes important further reforms in that a judge will now hear medical evidence in making the decision. The court can decide on foot of a psychiatric examination whether the mental disorder, if present, renders the person unable to understand the nature or course of proceedings, which is very important. I note the Minister of State said he undertook “detailed consideration of obligations under the European Convention on Human Rights in this area and the advice of the Attorney General”. I am glad the examination may be made on an inpatient or outpatient basis.

However, the amendment overlooks the fact that a number of the fitness to be tried proceedings are still being tried in the District Court and relate to summary offences, that is, minor offences. However, the Central Mental Hospital remains the only approved centre. The Minister of State has said he wants to consider the possibility that centres other than the Central Mental Hospital could be designated for the purpose of carrying out examinations in accordance with section 4, and I believe amendment should be made to the Bill at this stage. I am grateful to hear the Minister of State say he possibly wants to table an amendment on Committee Stage, and I hope he does that in this House. It would be very useful to have this debated in full both in this House and in the Dáil. This is something I was going to raise, in any event, so I am glad the Minister of State has stated that. It would clearly be helpful to allow courts to send someone to any approved centre rather than just the designated one, the Central Mental Hospital, since the majority of cases at District Court level are minor. They have to be minor to be in the District Court, but it is inappropriate in many of these cases to send them to the Central Mental Hospital. I am conscious there is a traditional review currently before the courts challenging committal to the Central Mental Hospital under the existing procedure.

I do not believe the Minister of State mentioned the point as regards who the medical evidence is sought from where the judge is seeking to make a decision on fitness to be tried. Has he considered providing that medical evidence should be sought from the admitting hospital? Currently, that is from the Central Mental Hospital, but if he were to expand the category of designated centres, it could be from any of the designated hospitals. This would be an appropriate measure to insert in the Bill because it would provide a judge with a fuller picture in terms of where he or she was proposing to send the person. It would give a medical opinion from a different perspective and that, perhaps, would be a useful provision. I should like to hear the Minister of State’s view and to whether he has considered that.

There are other issues which relate more broadly to the manner in which we treat persons with mental illness. The issue as regards the perspective we are bringing to bear on persons with mental health difficulties is vitally important. We have not, as yet, moved fully away from that welfare model, where as Anne-Marie O’Neill has said, we are regarding the State’s intervention as always benign. We may recognise, in practice, in many individual cases that the State’s intervention has not been benign. Our changing legislation, not just in the criminal justice area but in the Mental Health Act as well, reflects our growing awareness of the failure by the State to be benign in all cases where it has intervened in respect of persons with mental illness. We have a very shameful history of incarcerating large numbers of the population in industrial schools for children, Magdalen institutions for women and indeed in psychiatric institutions for persons deemed to have been mentally unwell. It is very much a positive development that we no longer adhere to that policy of incarceration, but there are some very chilling figures as regards the numbers that have been incarcerated in past decades. Colleagues in criminology in UCD and UCC have done a great deal of research on the large proportion of the Irish population that was detained in different institutions for so many decades. This is very interesting because for many years, we who as criminologists took a narrow view and looked at prisons, were congratulating ourselves that in Ireland a very low number of persons per thousand of the population were being detained in prisons. The true picture, however, is that we were detaining far more people in psychiatric institutions, Magdalen homes and industrial schools than was the case in other countries. Happily, we have moved away from the incarceration model and viewing State intervention as benign in all such cases. However, we still have to move to a fully rights based approach.

To explain what I mean by that I want to refer to Gerard Quinn’s writing. He is a well-respected academic from NUI Galway, with an international reputation in the area of disability rights and law. He writes:

The human rights paradigm enables us to see more clearly the reality of the lives of people with mental disability. Viewing the issue of legal competence as a human rights issue centres the rights and abilities of the individual with mental disability in the determination, notwithstanding his or her difficulty or disabilities, in personally exercising those rights. The reality is that mental disability complicates but does not ruin human existence. Our law has yet to match this reality.

As he says, our law has yet to match the reality that mental disability should not always be seen as a problem. If we see legal competence, for example, in the fitness to be tried area, as a human rights issue, then we place the rights and abilities of the person who is potentially on trial at the forefront. If we look at it from his or her viewpoint, we then start to see, for example, the merit in a judge having access to a fuller picture of mental health when making a decision on fitness to be tried.

I ask the Minister of State to take on board what I have said in relation to the expansion of the categories of designated centres beyond the Central Mental Hospital and to consider, in particular, how the Bill will impact upon cases in the District Court. These are often overlooked, but in fact they form the vast majority of criminal cases and also deal only with minor offences. Where minor offences are at issue, then using the Central Mental Hospital as the only centre is akin to using a sledge-hammer to crack a nut. That is a completely wrong analogy to use, but effectively it is using a far too extreme institution, one that should not be used in respect of persons found not guilty by reason of insanity, for example, in respect of minor offences.

This is very much a Bill that is to be welcomed, but there are some aspects in which it could go further, particularly as regards the amendments to the fitness to stand trial procedure.