7 April 2004
Dr. Henry: It is very unsatisfactory for all Members that we do not have the Government amendments before us. Fourteen months have elapsed since Second Stage of this incredibly important Bill which seeks to update legislative provisions in this area by repealing the 122 year old Trial of Lunatics Act 1883.
An Cathaoirleach: I am not sure the Senator is entirely in order, but I will allow her to make her point.
Dr. Henry: We have only just received notice of the grouping of the amendments. If Senators Terry, Tuffy and I find it impossible to deal with the amendments in the groupings set out, can we change them? All of us have naturally put our notes together in such a way as to deal with the amendments consecutively.
An Cathaoirleach: If the Senator is requesting some latitude in the groupings as we progress, we can accommodate her.
Dr. Henry: Will the Minister agree? The problem is that we have only just received notice of the groupings. If we cannot cope with the groupings as ordered, will the Minister agree to address the amendments in order?
Minister for Justice, Equality and Law Reform (Mr. M. McDowell): There are 139 amendments to this very short Bill. Obviously, there must be some form of grouping. I have no doubt the House is liberal enough to accommodate people with difficulties relating to the exact sequencing of amendments. There is always some latitude on groupings. While I am not a Member of the House with power to order business, I will certainly not be squeamish or rigid on groupings.
I am very grateful to the officials of the House for the work they have put into grouping the 139 amendments. The groupings they have worked out will serve to put some degree of order on the proceedings. Government amendments which are forthcoming will not go without debate and will not be rushed through in a way which is in any way undemocratic, ill-considered or under-considered. There is a sufficient number of amendments before the House for us to make significant progress and I believe the House will not be inhibited in any way by amendments the Government tables at a later stage.
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Dr. Henry: I am sure the Minister would not try to bring forward Government amendments without debate. The only problem is that on Report Stage we can speak only once.
An Cathaoirleach: That is noted. We will proceed to deal with these matters as they arise.
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Dr. Henry: I move amendment No. 2:
In page 4, subsection (1), to delete lines 6 to 8 and substitute the following definition:
"'mental disorder' has the meaning ascribed to mental disorder within the meaning of the Mental Health Act 2001;".
While the Bill may be short it is very important. As I said when we began the debate, it repeals an Act, which is more than 120 years old and we should do our best to ensure it complies with modern terminology. We put considerable work into the Mental Health Act during its passage through both Houses of the Oireachtas to ensure this happened. The Bill before us deals with the same kind of people dealt with under the Mental Health Act except that they have or are suspected of having committed crimes. We should try to afford them the same rights and respect that apply to ordinary psychiatric patients under the Mental Health Act.
The definition in the Bill is rather old-fashioned. It describes "mental disorder" as including "mental illness, mental handicap [a phrase now rarely used], dementia or any disease of the mind but does not include intoxication". My amendments seek to mirror as far as possible what is contained in the Mental Health Act so we do not spend considerable time deciding what is mental disorder as a result of having different definitions in two Acts. The definition of mental disorder in the Mental Health Act 2001 is very good and comprehensive and states it means "mental illness, severe dementia or significant intellectual disability". The change in terminology is worth considering. The section of the Mental Health Act continues "because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons". This reflects exactly what we want in the Bill before us.
The section continues "because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission". This again is exactly what we want in removing the persons from the courts to a therapeutic unit. The section then states "the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent". This again is what we want because if at all possible we want to return them to a state of mental normality.
The section finally states:
"mental illness" means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;
The reference to altering their "thinking, perceiving, emotion or judgment" is extraordinarily important when we come to consider whether people are unable or perhaps incapable of knowing the effects of their actions. The section describes severe dementia as "a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression". This again forms a very important part of the Bill before us.
The section describes significant intellectual disability, a term much more widely used than mental handicap, as "a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person". This is precisely the sort of person with diminished responsibility addressed by the Bill before us. Rather than having "mental disorder" described as it is in the Bill, we should use the definition already passed by this House and in use in those parts of the Mental Health Act already implemented.
My amendments Nos. 137 and 138 seek to use the term "mental disorder" rather than "insanity" in the Title of the Bill. While I have not proposed replacing it everywhere, this should be done. The word "insanity" could be described as stigmatising people whereas "mental disorder" is the term used in medical textbooks these days in place of describing people as insane. Just because we are updating the Trial of Lunatics Act, there is no need to insert a word which is already out of date and we should use a term in common parlance in the psychiatric profession.
Dr. M. Hayes: I support Senator Henry's amendments and I hope the Minister will be able to accept them. During the passage of the Mental Health Act, we spent considerable time fashioning the definition of mental disorder, which meets the requirements of modern practitioners. There is no point in reinventing the wheel if it can be done by cross-referencing to an existing definition. I suggest it would be more convenient for the expert witnesses called to the courts to deal with these matters in terms to which they are accustomed. Like Senator Henry, I believe it would be gracious to use the term "mental disorder" rather than "insanity" in the Title. At least the Minister has saved us from "lunacy". However there is a slightly derogatory overtone in the term "insanity".
Ms Terry: I wish to speak to my amendment No. 4. I support Senator Henry's amendments which seek that the Bill use the modern term "mental disorder" rather than "insanity". The Bill should be updated in every possible given that many years have passed since it was first drafted. It needs to be modernised.
The definition of mental disorder is central to the legislation. I am concerned that the definition as provided for in the Bill is a little ambiguous. Perhaps that is deliberate but I fear the definition in its current form will inevitably lead to judges determining their own meaning of the words "mental disorder". We are the people who make the legislation and we must ensure, when drafting, amending and enacting it, that our intentions are clear. In defining something we should be clear about what we want. While the definition of "mental disorder" refers to intoxication, it does not deal with a state of mind induced by intoxication. I would like the Minister to consider my amendment with a view to accepting it.
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Dr. Henry: There appear to be two thresholds in the Bill. Under the section on fitness to be tried, section 3(b) states that the courts should determine "if the accused person is suffering from a mental disorder, within the meaning of the Act of 2001." If it is suitable there, why is it unsuitable for the whole Bill? Under subsections (7) and (8), the courts are supposed to use the mental disorder definition from the Mental Health Act. Subsection (7) states:
Where on the trial of an accused person the question arises as to whether or not the person is fit to be tried and the court considers that it is expedient and in the interests of the accused so to do, it may defer consideration of the question until any time before the opening of the case for the defence and if, before the question falls to be determined, the jury by the direction of the court or the court, as the case may be, return a verdict in favour of the accused or find the accused person not guilty, as the case may be, on the count or each of the counts on which the accused is being tried the question shall not be determined and the person shall be acquitted.
The Minister said that he does not want the Mental Health Act definition used in the Bill, but it is referred to in this section.
Subsection (8) states:
Upon a determination having been made by the court that an accused person is unfit to be tried it may on application to it in that behalf allow evidence to be adduced before it as to whether or not the accused person committed the act alleged and if the court is satisfied that there is a reasonable doubt as to whether the accused committed the act alleged, it shall order the accused to be discharged.
Why is the definition from the Mental Health Act used in this subsection yet not used in the definition?
The Minister's definition of thresholds for mental disorder introduces a lower one than that in the Mental Health Act. The public is entitled to have the higher definition applied. Under the Minister's definition of mental disorder, it can be claimed that 25% of the population will suffer some form of mental disorder. If those with Prozac prescriptions are included, the definition could apply to anybody. Why not use the higher definition as in the Mental Health Act?
This Bill will treat people differently. For example, a large number of mentally ill people used to congregate at Baggot Street Bridge. Due to my complaints that they were getting so little treatment there, they have been moved on to some other bridge. Occasionally, some of the local shopkeepers had trouble with them with items such as milk being stolen. In general, the shopkeepers were understanding about this and did not contact the police. However, what if a shopkeeper got fed up and decided to contact the police? Under this Bill, that same mentally ill person will have a different test of mental disorder applied to him because the shopkeeper pressed charges. Is this right under human rights legislation when this is the same mentally ill person? Why is the Minister for Justice, Equality and Law Reform persisting in deciding that these people must be treated differently?
The Minister's threshold of mental illness is much lower than the one put forward by the Mental Health Act. I cannot understand this but I am sure that the Minister will elucidate matters. Why is he using the definition in the most important subsection? Mentally ill people must be taken out of the criminal law system. At the same time, their rights should not be destroyed. Mentally ill people have certain rights and, irrespective of whether they are charged for stealing a bottle of milk , they must get the same treatment in the law.
From the Minister's comments, he does not have a high opinion of psychiatrists and sociologists.
Mr. M. McDowell: I never said anything of the sort.
Dr. Henry: The Minister should not shake his head. On Second Stage, he informed the House that this Bill was for the ordinary, common sense, normal people one finds in the Four Courts and not psychiatrists. However, the courts rely on psychiatrists to give a medical opinion in cases. To ask them to give an opinion in a situation which they believe is crazy - forgive the use of the term - is not good. It may be all right in legalistic terms, but these professions have ethical responsibilities to the people in front of them in a courtroom, which they must consider first and foremost. The Minister does not have to include every last line of section 3 of the Mental Health Act to say that one has a mental disorder. If parts of it apply to an individual, that will be sufficient. If an individual is suffering from hallucinations, one does not have to say he has delusions as well.
The Bill asks professional people to go before the courts to use vague forms of wording and definitions that they do not believe are suitable. I object to the term "mental handicap" being used because it went out with buttoned boots. The definition is pitched too low. The Minister claims people wanted it pitched high enough and that is why the word "insanity" is used. Its use does not mean it is high enough. This is an old-fashioned word although I do not mind if people giggle about it in 40 years time. However, modern psychiatric terminology should be used in a Bill concerning mentally ill people. Psychiatrists coming before the courts to give professional opinions in cases must believe they are doing so within the parameters of psychiatric disease.
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Dr. Henry: I do not for one instant think the Minister is being specious. I just want him to be sensible. I accept fully that some of the Minister's best friends are psychiatrists and, indeed, the odd sociologist may also be thrown in. However, I do not agree with the Minister. I think the mental disorder definition is sensibly inserted in this section and it would have been much better to follow it in the remainder of the Bill. The interpretation of the definition in this section will lead to people being able to prove there is mental illness when people were perhaps on Librium at the time. The definition in the Mental Health Act is of a much higher standard. I am unenthusiastic about part of section 4, which we will have a chance to discuss later. The Minister alluded to section 3(5)(c) but one of the big problems with it is that a judge can only recommend in-patient care or treatment in a designated centre, whereas the person may not need to be put anywhere. They could be perfectly all right under supervision in the community. Those points are for a later discussion, however.
Amendment, by leave, withdrawn.
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Dr. Henry: I move amendment No. 5:
In page 4, subsection (1), between lines 8 and 9, to insert the following definition:
"'Mental Health Tribunal' means the Mental Health Tribunal established under Part III of the Mental Health Act 2001 with the additional condition that when determining matters in relation to a patient detained under this Act the Chairperson shall be a Judge of the Court which exercised criminal jurisdiction in relation to the patient;".
As the Minister knows, the Mental Health Act has proposed mental health tribunals which are in the process of being established. The composition of the commission and the tribunals looks like being eminently sensible. The membership of the commission will consist of a person with not less than ten years' experience as a practising barrister or solicitor in the State, ending immediately before his or her appointment to the commission; three registered medical practitioners, two of whom shall be consultant psychiatrists who are to have a special interest and expertise in the mental health service; two representatives of registered nurses whose names are with An Bord Altranais and who have psychiatric training; one representative social worker with special interest in this area; one representative psychologist with a special interest and expertise in the provision of mental health services; one representative of the interests of the general public; and three members from voluntary bodies promoting the interests of persons suffering from mental illness, at least two of whom shall be a person who suffers from or has suffered from a mental illness. In the latter case, such people will be easy to find because some 25% of us suffer from some form of mental illness during our lives. There will also be one representative of the chief executives of the health boards, although I do not know how they will find such a person given the boards are being abolished. In addition, not less than four members of the commission shall be women, and not less than four shall be men.
When there is one good commission which is to bring forward tribunals, why on earth does the Minister not use that and save the taxpayer some money? The Bill's explanatory memorandum states "it is not anticipated that the proposals in the Bill will have significant financial or staffing implications", but I have never known anything that did not cost something. The establishment of the mental health review board will certainly cost money. It would be sufficient for the Minister to appoint as chairperson of the tribunal a judge of the court which exercised criminal jurisdiction in relation to the patient.
Section 10, which provides for the establishment of a mental health review board, does not include much information as to what sort of people should be on it. That information is well laid out in the Mental Health Act. The Minister could save his Department and the taxpayer a great deal of time, trouble and expense by accepting that the tribunals, as established by the Mental Health Act, could review such cases. After all, the same sort of people will make up the membership both of the tribunals and the mental health review board, and they will be looking for the same sort of things. The person affected will have the same rights, whether they have been detained under this Bill, once enacted, or under the Mental Health Act. I would have though the Minister could easily accept this amendment.
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