Seminar - Fri, 23rd January, 2015 - "Mental Health and Criminal Law"

“Mental Health and Criminal Law”

This event is a collaboration between The Association of Criminal Justice Research and Development, The Irish Mental Health Lawyers Association and Dublin City University.

Venue:  Education Centre, Law Society of Ireland, Blackhall Place, Dublin 7.
Date:     Friday, 23rd January, 2015  
Time:     5.30 pm – 8.00 pm  
Cost:      €5.00 per person   

The seminar will feature the following presentations:

KEYNOTE: "Mental Disorder and Liability to Punishment: Recent English Developments"

Mr. Kris Gledhill, University of Auckland  (An abstract of Mr. Gledhill’s paper, can be found on www.acjrd.ie.)

"Mental Disorder and Proportionate Punishment"

Mr. Tom O'Malley, National University of Ireland, Galway

 "Operating The Criminal Law (Insanity) Act:  a Legal Practitioner's Perspective"

Ms. Aine Hynes, Irish Mental Health Lawyers Association

The event will be chaired by Judge John O'Connor.

Please note that online registration is required. To buy your ticket and secure your place, please click here.

Attendance certificates for CPD purposes will be issued after the event, on request.

ACJRD Ltd.  Tel: 00 353 1 6174878   Email: admin@acjrd.ie   Web: www.acjrd.ie  
ACJRD Ltd, Spade Enterprise Centre, North King Street, Dublin 7

Mental Health, Criminal Law and Risk of Harm

Blog post by Dr Darius Whelan:

The recent tragic case of stabbings in Cobh, Co. Cork, highlights the treatment of those with mental health issues by the criminal justice system.

This is a complex area and further details may be found in some of the source materials referred to at the end of this blog post.

The Criminal Law (Insanity) Act 2006 introduced major changes in Irish law concerning mental health  and criminal law.  For example, it changed the verdict in some of these cases from 'guilty but insane' to 'not guilty by reason of insanity'.  In order for such a verdict to be reached, the Act requires the following:  
 

(a) the accused person was suffering at the time from a mental disorder, and

(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—
(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or
(iii) was unable to refrain from committing the act,
the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.

According to media reports in this case, it appears that such a verdict was returned regarding this individual (Mr Michael Greaney) in 2013.

Under the 2006 Act, if such a verdict is returned, the judge does not automatically send the person for mental health treatment.  Instead, the person may be sent to the Central Mental Hospital (CMH) for assessment to see if the person requires treatment.  The emphasis switches at this stage from the person's mental health on the day of the act to their health at the time of assessment.  A person's mental health may fluctuate enormously from month to month (or even from day to day).

Depending on the assessment, the judge can then either order that the person be detained in the Central Mental Hospital or discharged.  In this case, it appears that the judge ordered that the person be discharged, on condition that he live away from the family home.  That condition was later lifted by the court.

If the judge ordered that the person be detained at the Central Mental Hospital, the question of the person's release would be in the hands of the independent Mental Health (Criminal Law) Review Board.  This board has 4 members (listed here) and usually 3 members sit on a hearing to review a particular case. There are approximately 110 hearings per year.  Each case is reviewed every six months and the person will be represented by a solicitor.  A person could also be temporarily released by the CMH under s.14 of the 2006 Act (which does not require approval by the Review Board).

A decision made by a judge to release a person (or to put it another way, not to order that they be treated in the CMH) would be made based on psychiatric evidence of the risk they pose at the time of the assessment.  Assessment of risk is a difficult matter and it is impossible to predict risk of harm with high levels of accuracy.  As a society, it is important that we strike a fair balance between detaining those who may pose a risk to the community and recognising that a person with significant mental health issues may not have been criminally responsible for their actions. The current law attempts to strike that balance as best it can, with advice from medical experts.  This law is in fact of need of reform to strengthen the rights of the individuals concerned, e.g. there is a need for more frequent reviews of detention by the Review Board as the cases of those detained under the civil legislation - the Mental Health Act 2001 - are reviewed more frequently. The law also urgently needs to be changed to remove the "insanity" label from such individuals, a label which is entirely inappropriate and anachronistic. 


Source Materials

Barry Roche - Irish Times coverage  

Muiris Houston in Irish Times

Ralph Rigel - Irish Independent coverage 

Irish Examiner coverage

T.J. McIntyre, Sinead McMullan & Seán Ó Toghda, Criminal Law, 3rd ed. (Dublin: Round Hall, 2012)

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Round Hall, 2009)

Liz Campbell, Shane Kilcommins & Catherine O'Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010)

Darius Whelan, annotations of Criminal Law (Insanity) Act 2006 and 2010, available in Westlaw IE database

Citizens' Information - Criminal Insanity and Mental Health

Website of Mental Health (Criminal Law) Review Board

Full text of Criminal Law Insanity (Act) 2006 as amended by Criminal Law (Insanity) Act 2010

Darius Whelan, slides on Criminal Law (Insanity) legislation

Mental Health Commission, Forensic Mental Health Services for Adults in Ireland, Position Paper, 2011

Mental Health Reform submission

Louise Kennefick blogpost on Human Rights in Ireland

Assisted Decision-Making (Capacity) Bill 2013 and the Implications of the Bill for the treatment of vulnerable persons in congregated settings

Submissions by The Irish Mental Health Lawyers Association on the Assisted Decision–Making (Capacity) Bill were made to the Department of Justice on the 30th of October 2013.

The Prime Time programme aired last night on the treatment of vulnerable persons in the care of the HSE at Áras Attracta highlights the urgent need for the Assisted Decision-Making legislation to be implemented as a matter of urgency. We and other organisations have made submissions in relation to appropriate deprivation of liberty safeguards which we consider should have been included in the Bill. An extract from our submissions are set out below.

We consider that it is necessary at this time, to emphasise that there must be appropriate legal mechanisms in place to ensure there is proper oversight of vulnerable adults in care, who cannot speak for themselves and who are entitled to be afforded their basic human rights. Legal mechanisms such as deprivation of liberty safeguards can serve to shine a light on poor practice and unlawful acts. We also consider that it is of the utmost importance that serious consideration is given to the immediate implementation of the Personal Advocacy Service provisions of the Citizens Information Act 2007.  

EXTRACT FROM SUBMISSION

1.    Reviews of detention of persons who lack capacity admitted to residential centres other than approved centres.
The Bill does not fully resolve the issue of people who lack capacity and are admitted to a residential centre on a "voluntary" basis but are de facto detained in the centre.  This is an issue which arises in residential settings such as nursing homes, social care institutions and centres for people with disabilities.  Ireland is not directly tackling the problem of the "Bournewood gap" and ECHR case-law such as H.L. v UK; Stanev v Bulgaria; D.D. v Lithuania and other cases.

Recommendation
The IMHLA recommends that the Bill should state that if a person is being admitted to any residential centre, this can only occur on a voluntary basis, where the person has capacity to consent to such admission and does consent to such admission.  Capacity to consent should be assessed appropriately.  

Áine Hynes, IMHLA                    Phone 01 6779097

10 December 2014

Full IMHLA Submission on Bill

Commentary on the Assisted Decision-Making (Capacity) Bill 2013

Our President, Dr Darius Whelan, has written a blog post about the Assisted Decision-Making (Capacity) Bill 2013 on his personal blog here.   

This blog post also contains links to various other commentaries on the Bill which have been written so far.  

Blog post on Assisted Decision-Making (Capacity) Bill 2013

Publication of the Assisted Decision-Making (Capacity) Bill 2013

IMHLA welcomes the publication of the Assisted Decision-Making (Capacity) Bill 2013 as an important step in the reform of the long-outdated law on mental capacity. The new legislation will greatly assist vulnerable people with limited decision making capacity to better manage their personal, property and financial affairs.  We welcome the replacing of the Wards of Court system with a new legal framework that gives greater autonomy to those who need assistance in making fundamental decisions concerning their lives.  We welcome the provisions for detention related safeguards and reviews of people who are detained in psychiatric institutions under orders made under the current Ward of Court system. We also welcome the announcement that the Bill will, at Committee Stage, incorporate provisions relating to Advance Care Directives, which will be provided by the Department of Health.

We congratulate Justice Minister Alan Shatter and Junior Minister Kathleen Lynch for their commitment to getting this Bill published. This Bill will replace the long-outdated Lunacy Act of 1871. Its publication represents crucial progress in Ireland’s journey towards implementation of the UN Convention of the Rights of Persons with Disabilities (CRPD).

While we welcome the publication of this Bill, we are also concerned on our initial review of the Bill that there are a number of flaws within it that stop it from being fully in line with the CRPD. In particular it seems that the provisions of the proposed legislation may not be available to people who are suffering from a Mental Disorder in relation to their treatment under the Mental Health Act 2001. The Convention expressly states that people with disabilities, including mental health problems, should enjoy legal capacity on an equal basis with others in all aspects of life.

We look forward to working with Oireachtas Members as the Bill goes through the Houses and to further clarification on the interaction of this legislation with the Mental Health Act 2001.

For further information please contact:

Áine Hynes Chair, Irish Mental Health Lawyers Association

01 6779097