Ireland's Criminal Law (Insanity) Bill 2002: implications and recommendations

Background

The Criminal Law (Insanity) Bill was published on 12 December 2002, by Ireland's Minister for Justice, Equality and Law Reform, as a concerted effort by the government to reform this area of law, and bring mental health policy more in line with its obligations under the European Convention on Human Rights.

Under the new legislation the present 'guilty but insane' verdict will be replaced by a new 'not guilty by reason of insanity' verdict. The Bill includes provision for 'fitness to be tried', and a statutory definition of 'criminal insanity'. In cases of murder where the mental disorder does not justify an insanity verdict, defendants will be able to plead 'guilty but with diminished responsibility'. The legislation also establishes a Mental Health Review Board, which will consider the cases of persons who are detained following a verdict of 'not guilty by reason of insanity' or findings of 'unfitness to plead'.

While the bill has been welcomed as a necessary and long overdue step in reforming Irish law relating to the criminal prosecution of mentally ill persons, it nevertheless falls short of fully reforming the law in this area which dates from the 19th century.

Implications of the new legislation

The process of diverting offenders from prison into mental health services is not adequately outlined, and this failure is of serious concern. Such a diversionary process system needs to be conducted with the full cooperation of the receiving services, and the new legislation as set out does not provide for this. As a result some people may be misplaced within the system.

Crucially the Bill does not provide for the opportunity to treat an offender as an out-patient accessing services in the community. Community based services including nursing, day hospital or centre, vocational rehabilitation, and addiction counselling can greatly benefit offenders, and are necessary parts of a holistic approach to mental health recovery.

With in-patient care specified as the only form of care, offenders would be detained in mental hospitals rather than receiving treatment in the most appropriate setting. It would be highly retrogressive to introduce such a system, as evidenced by historical examples of the failure of this model of treatment.

Detaining offenders in this way would divert resources away from people who need in-patient care, and add to the problem of stigma by reinforcing the image of mental health centres as locations for the detention of people guilty of undesirable social behaviour.

In-patient mental health facilities should exclusively be for people needing in-patient treatment as medically defined, and should not be required to detain offenders when that is not appropriate. In modern mental health care it is impractical to detain people not requiring in-patient care, as these centres are neither secure nor intended to be custodial.

Recommendations

Against this background Shine has recommended that:

1. Definitions of mental illness and disorder should be consistent in Irish legislation in order to ensure harmonisation of practice and implementation between governmental agencies;

2. The Criminal Law (Insanity) Bill 2002 should clearly stipulate that provisions only apply to non-violent offenders, and that provisions for violent offenders should await the creation of regional secure facilities in the health services;

3. The Criminal Law (Insanity) Bill 2002 should provide for the opportunity to treat a non-violent offender as an out-patient accessing services in the community.

Summary

Ireland's Criminal Law (Insanity) Bill 2002 will help to improve access to services for offenders who are mentally ill, however, further issues need to be addressed to ensure that the new legislation is viable. Varying definitions of mental illness and disorder in Irish legislation, regional secure facilities, distinction between violent and non-violent offenders, and out-patient treatment are areas of serious concern.

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