06 April 2006
Acting Chairman (Mr. Kitt): I welcome the Minister of State to the House. This is a Seanad Bill that has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage...
Dr. Henry: I am not enthusiastic about the amendments made regarding "care or treatment" instead of "care and treatment". One my main criticisms of this Bill is how it will be implemented by those who must use it. It should be aligned as closely as possible with the Mental Health Act 2001 because the same people will have to use this legislation and, to avoid mistakes, the closer things are, the better. Inserting "care or treatment" can also allow for the warehousing of people, which would be a great pity. I am aware of the argument that a person with Alzheimer's disease could not be treated satisfactorily but there are various attempts to treat all sorts of psychiatric illness so it is not a good argument.
There is a different definition of "patient" at the beginning of the Bill from further on, when "patient" is defined under the Mental Health Act 2001. I can see my psychiatrist friends having problems with this. I welcome, however, the fact that any mistakes regarding diagnoses made in lower courts can be rectified in upper courts. That improves the Bill.
The change in amendment No. 8 to the definition of the Central Mental Hospital, established in pursuance of the Central Criminal Lunatic Asylum (Ireland) Act 1845, is wise if we are to move the Central Mental Hospital from Dundrum. The 1845 Act states that it will be in Dundrum.
However, I do not have a copy of it with me. Those are some criticisms I would make of the changes.
I am glad provision has been made for the transfer of patients back to prison. When I tabled my amendment on transferring patients from prison to court and from court to the Central Mental Hospital, the substance of which the Minister kindly accepted, I had forgotten about transferring patients back to prison if they were no longer in need of inpatient treatment.
As far as I can see from reading the Bill, the designated centre is still only the Central Mental Hospital. I am glad to note outpatient treatment is allowed. If the person was fit to be treated in what could be described as a "designated centre" in a psychiatric hospital as close as possible to his or her home, could he or she be sent there by the court? There would be a difficulty implementing this because a large number of psychiatric institutions do not have locked wards or enclosed areas which would enable them to accept such patients. I am not sure from reading the amendments and the Bill if the designated centre can only be the Central Mental Hospital. Could the designated centred include other psychiatric institutions? I am glad to note that for summary offences, in particular, people can receive outpatient treatment. Perhaps the Minister of State will clarify the issues raised.
Mr. B. Lenihan: On the question of the designated centre raised by Senator Henry, the position is a little wider than she envisages because section 3(1) provides that the Central Mental Hospital is designated as "a centre" - note the use of the indefinite article - for the reception, detention and care or treatment of persons or classes of persons committed and transferred thereto under the provisions of this Act. Section 3(2) expressly provides that the Minister for Health and Children by order may after consultation with the Mental Health Commission established under section 32 of the Act of 2001, designate a psychiatric centre as a centre for the same purpose. Other centres can be established, which is clear in the legislation.
There was a long discussion between the Senator and the Minister on the question of care or treatment. The Senator mentioned the need for consistency in the legal definitions psychiatrists must use under the 2001 Act and this legislation. In fact, the other legislation is not consistent on the question of care or treatment. At least the Minister has taken a consistent approach in this Bill and has laid down a standard of consistency for the purposes of this legislation which he believes meets the need to provide either care or treatment these persons.
Acting Chairman: I call on the Minister of State to speak on the subject matter of the amendments in group two.
Mr. B. Lenihan: These amendments have been grouped together as they relate generally to the definition of the term "mental disorder" set out in section 1 of the Bill. On Committee and Report Stages of the debate on the definition of "mental disorder", amendments to provide for a definition of what precisely was covered by the term "intoxication" were tabled by Deputy Gerard Murphy on behalf of Fine Gael. Deputy Costello also tabled an amendment on the point on Report Stage. Their principal concern was to ensure the term "intoxication" embraced all intoxicants and not only alcohol. The Minister explained that "intoxicant" in law does not only mean alcohol but he undertook nevertheless to consider whether a specific definition should be inserted in the Bill. This was done by means of amendment No. 2 on the list before the House.
The Minister would like to acknowledge that Senator Terry also tabled an amendment on Committee Stage in this House on 7 April 2004 which is in very similar terms to the Minister's amendment which is drawn from the Criminal Justice (Public Order) Act 1994. At that time, the Minister thought it was better to leave the term undefined and Senator Terry withdrew her amendment. It only goes to show that persistence with this Minister can, on occasion, pay off and he wishes to formally acknowledge Senator Terry's perspicacity in this regard.
The Minister in his response to this amendment referred to the report of the Law Reform Commission on Intoxication published in November 1995. Senators might be interested to know that the commission states that the definition of "intoxication" or "intoxicant", in the sense that either term involves the consumption of drugs as well as of alcohol, does not appear to have given rise to difficulty in any jurisdiction, including our own, studied by it in the course of its work nor was it raised as an issue by any of the experts who met the commission. In practice, intoxication is not accepted as a defence in Irish courts and the commission goes on to point out that, if anything, it has been found to be an aggravating factor.
The definition of "mental disorder" was constructed from the outset on the basis that there was no need to spell out that, in strictly legal terms, "intoxication" does not only mean a state of intoxication stemming from the consumption of alcohol.
On amendment No. 4, speaking generally for a moment, Senators will be aware there was much debate in this House and in the Dáil about the terminology and language used in the Bill and the Minister's position on the definition of "mental disorder" used in section 1, and the need to keep this separate from the definition of "mental disorder" in the 2001 Act. This reflects the basic policy underlying the Bill in this area that the ultimate resolution of the issue of mental disorder in the context of insanity in the course of criminal proceedings is one of law and not medicine. I am happy to state that one of the sternest critics of this approach, the Mental Health Commission, has now indicated that it accepts the need for this variation. It notes that the definition of "mental disorder" used in the Bill is identical to that used in the definition in the Mental Health Act 2001 when referring to issues of treatment. It accepts that the Bill uses a different definition when the matter is being considered during court proceedings.
However, on Committee Stage in the Dáil, the Minister said he would look again at one element of the definition of "mental disorder" in section 1 which referred to "mental handicap". The Minister believed the term "mental handicap" was not as pejorative a term as some might consider. Neither did he believe it was an exclusionary term. However, he agreed to the change proposed by Deputy Costello which was supported strongly by other Deputies and thus the appropriate reference now will be to "mental disability" instead of "mental handicap".
Dr. Henry: The clarification of intoxication was a good idea and is important. I understand the reasons for the definition of "mental disorder". It is good that throughout the rest of the Bill "mental disorder" is described as being within the meaning of the Act of 2001 because these people will have the protection of Part 4 of that Act when detained in a designated centre under this legislation. I understand the difference in the two definitions of "mental disorder". I am particularly glad that under section 3(3), Part 4 of the 2001 Act shall apply to any person detained in a designated centre under this legislation.
…
Dr. Henry: These amendments are mainly technical. I would have thought it would be wiser to have the same definition of "patient" in this Bill and the Mental Health Act. Given that this is the only opportunity I have to comment on the review boards, I must say they are totally different to those included in the Mental Health Act, not just in terms of their function but also in terms of how their members are appointed. People must apply to become members of the Mental Health Commission and are vetted to determine whether they are suitable to serve on the boards. However, the Minster has the power to choose the members of the review boards envisaged in this legislation. Worse still, he has the power to remove them. As we always say, we are not worried about the present Minister but that we may not always have as reasonable and rational a Minister in the future. Such a Minister might not be so careful and cautious in appointing individuals to the review boards and in removing them if they act in a way he does not consider desirable. I am therefore sorry the review boards are not more like those envisaged in the mental health legislation. Otherwise, I understand the small amendments being made.
…
Dr. Henry: Naturally I am delighted that the Minister accepted Deputy Ó Snodaigh's amendment and decided a prison was not a suitable place for someone being treated for psychiatric illness. I presume other changes will have to be made to the Bill because, under certain sections, it appears that persons could be treated in prison.
The governor, as the clinical director, would make clinical decisions - admittedly having been given advice by a medical practitioner - which does not seem to be in accord with amendment No. 10. This is a very important change and I am delighted it has happened.
While amendment No. 44 is also good, I have a slight concern. After a person had finished his or her sentence, perhaps having been in the Central Mental Hospital for some time, is the clinical director in the Central Mental Hospital or other designated centre required to send him or her back to prison or can the person be discharged? The Bill does not seem to make provision for such people to be discharged if they have finished their sentence. At that stage they are patients.
As the Minister of State mentioned Judge Henchy, I am interested to see that the term "was unable to refrain from committing the act" is still used in section 5 and in another part of the Bill. I spoke at some length about the matter when debating the Bill here. Psychiatrists are not very enthusiastic about the idea that even if a policeman was standing at a person's shoulder he or she still could not refrain from committing an act. Unfortunately, I believe we will live to regret it. I believe the Minister was thinking about only very serious crimes. However, I could envisage people committing very minor crimes, like stealing a bottle of milk, claiming they were unable to prevent themselves from doing so and using this provision as a plea. When I raised the matter on Committee Stage, the Minister said that Judge Henchy was the greatest legal brain of the last century and I was not going to argue with him. Nevertheless, I hope we do not live to regret having left that plea in the Bill.
Mr. B. Lenihan: The Senator will be glad to hear that Judge Henchy is alive and well.
Dr. Henry: The Minister said that Judge Henchy was the greatest legal brain of the last century. I do not know whether he believes there is another claimant this century.
Mr. B. Lenihan: He retired from the Supreme Court in the last century. He penned many erudite judgments which are devoured with great interest by jurists and legal scholars. He was undoubtedly a very distinguished judge. I have no doubt his capacity is unimpaired in that regard.
The Senator asked what happens if a person's sentence expires while they are in the designated centre, which is addressed in section 16 as follows:
Where a prisoner is detained in a designated centre pursuant to section 15, the Governor of the prison from which the prisoner was transferred to the centre shall, as soon as it is practicable to do so, give notice in writing to the clinical director of the centre of-
(a) the date, if known, on which the prisoner will cease to be a prisoner, and
(b) any change to such date.
When the sentence expires the person is then free. There is no question of needing to be re-conveyed to a prison in some kind of formal act of delivery. The person is at liberty once his or her sentence has expired. Of course, the provisions of the 2001 Act can apply to a person in that position. They are dealt with by the civil legislation applicable to the care or treatment of such persons.
The Senator also referred to some outstanding superfluous references left in the legislation. The Minister is very anxious to have the legislation passed. The matter has been drawn to his attention. While they are now superfluous to the legislation, the Minister proposes to address this superfluity on another day in a different measure.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan): On behalf of the Minister for Justice, Equality and Law Reform and on my own behalf, I thank Senators for the time and effort they have devoted to this Bill and for their many contributions which served to improve it as it progressed through this House. I was involved in some of the debates in question in this House.
The Minister decided to initiate the Bill in this House, because he believed that the reflective capacity of the Seanad could improve the legislation. That is reflected in the fact that the most significant changes to it were made during its passage here. The Minister wants to single out, in particular, Senators Henry, Tuffy and Terry, who put in a good deal of work on this Bill and made many positive contributions in the discussions. Senators will acknowledge that the Minister showed a willingness to take on board suggestions for amendments. It might have taken a number of attempts before he accepted certain amendments, but it goes to show that perseverance sometimes may pay dividends. I would not advocate perseverance in all cases as regards this Minister, however.
The Minister was happy to have been in a position to accept amendments to improve the Bill and to be able to deliver, following a promise of further consideration on a range of other points that merited serious attention. The Bill is an historic measure in a way for the following reasons: for the first time there are provisions in place for readily-accessible statutory rules of the test for insanity and related issues in the criminal law; new administrative arrangements will replace outdated and Byzantine rules for the transfer of prisoners who are mentally ill as between prisons and psychiatric centres; the introduction of the concept of diminished responsibility in cases of murder; new rules for courts to avoid referring persons who are mentally ill to prison and allow them, instead, to be referred for care or treatment to a designated psychiatric centre on an inpatient or outpatient basis, as appropriate, under the control of the court; and most crucially, the establishment in line with the European Convention on Human Rights of a new independent review board which will keep under ongoing and active review, with the power to release, the cases of all persons who are detained because of fitness to plead issues, or have been found not guilty by reason of insanity, or who have become mentally ill while serving sentences of imprisonment.
Visit the Irish Government Website for the full text of this speech
