The new Criminal Law Insanity Act is a missed opportunity to reduce the number of people with mental illness going to prison, writes Fr Tony O'Riordan.
Rushed legislation is never good legislation. But the inverse of this rule is not automatic. The Criminal Law (Insanity) Act 2006, which comes into force today, cannot by any stretch of the imagination be described as rushed.
Three-and-a-half years have elapsed from its introduction in the Seanad in 2002 to its enactment into law in April of this year.
In fact this law has been nearly 30 years in the making as it implements recommendations made in the Third Interim Report of the Interdepartmental Committee on Mentally-Ill and Maladjusted Persons (The Henchy Committee) published in 1978. So by any standards this is not rushed legislation, but is it good legislation?
The answer depends on the range of one's peripheral vision as one looks at the interaction of our criminal justice system and defendants suffering from mental illness. Viewed in narrow terms and considering defendants with the most extreme forms of mental disorder, there are some welcome and humane provisions in the Act. It clarifies and updates the way a defendant's fitness to be tried is ascertained, as well as new rules in relation to appeals against such findings.
Significantly, it contains a statutory definition and a restatement of the test for criminal insanity. It also provides for a new verdict of "not guilty by reason of insanity" to replace the existing "guilty but insane" verdict, and a new plea of "guilty but with diminished responsibility" in cases of murder.
It also provides for a new independent Mental Health (Criminal Law) Review Board. The main function of the board will be the regular review of all cases of detention in designated centres of persons found not guilty by reason of insanity or unfit to be tried.
These measures represent a welcome step forward in dealing with what is likely to be a small group of people who fall within the definition of criminal insanity. However, the new law is a missed opportunity when the interaction of people with mental illness and the criminal justice system is seen with broader peripheral vision.
A recent study led by Dr Harry Kennedy of the National Forensic Mental Health Service suggested that as many as one in five male sentenced prisoners and one in three female sentenced prisoners have a mental illness.
Successive reports of the prison chaplains have also drawn attention to a significant number of people in prison suffering from mental illness.
These reports also highlight the inappropriateness of prison regimes for such people. There remains an urgent need for improved mental health services in Irish prisons to bring them into line with international human rights standards for the care of people with mental illness and to meet the requirements of the Irish Prison Service's own healthcare standards.
A particular concern is the long waiting list for admission to the Central Mental Hospital, which results in many of the prisoners who are recommended for transfer to inpatient psychiatric care never receiving it.
This raises a question about the reliance on the Central Mental Hospital, a high-security centre, as the only location for in-patient treatment of prisoners, regardless of the security requirements of the prisoners concerned.
In effect, locally-based psychiatric services are exempt from treating prisoners who are mentally-ill, irrespective of the security risk. Perhaps this highlights the stigma that attaches to mental illness in society as no corresponding exemption applies to general hospitals.
If a prisoner in Mountjoy became ill with meningitis, most likely he would be transferred to the nearby Mater Hospital. But if the same prisoner required in-patient psychiatric treatment he will not be transferred to nearby Grangegorman but will go on a waiting list for the Central Mental Hospital and is unlikely to receive appropriate treatment.
However, the main long-term challenge is to reduce the number of people with mental illness going to prison in the first place. This is where the new law fails.
The central problem is that the new legislation does not address the situation of those defendants who have a mental disorder, but not one of such severity that they would come within the scope of the narrowly-defined situations with which the new law is intended to deal.
The criminal justice system still lacks adequate power, mechanisms and resources to ensure that people with less severe mental illness who come into the system can be diverted to mental health services and away from prison.
To tackle this issue we still need the necessary legislation to alter the sentencing powers of courts to include treatment orders, so that persons who are mentally-ill but who are not deemed criminally insane could be sent to more appropriate places for treatment.
However, if increased diversionary powers for the courts are to have any meaning in practice, there must be adequate mental health services available in the community.
The Government needs to take immediate action to radically reform our mental health services along the lines suggested in A Vision for Change, the comprehensive policy framework for the development of the mental health services published in January this year.
What is required is not just broader peripheral vision but a long-sight vision too.
Fr Tony O'Riordan SJ is the communications officer at the Jesuit Centre for Faith and Justice. www.cfj.ie