Mental Health, Criminal Law and Risk of Harm

Dr Darius Whelan, Senior Lecturer, School of Law, U.C.C., and author of Mental Health Law: Civil and Criminal aspects (Roundhall: 2009). (This blog was originally posted on:  http://irishlawblog.blogspot.ie/2014/12/mental-health-criminal-law-and-risk-of.html )

CMH DublinCentral Mental Hospital, Dublin

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

Changes needed to Mental Health Act 2001

The Mental Health Commission has started work on developing a Code of Practice on the Mental Health Act 2001. The Commission seeks views on which parts of the Act, if any, further guidance should be provided on and the closing date for receipt of feedback is Wednesday 28th April. For further information, see this page.
Meanwhile, papers and videos from the recent Mental Health Law conference at University College Cork are available here. The conference was jointly organised by UCC Faculty of Law and the Irish Mental Health Lawyers Association. Speakers included Mary Forde of Amnesty International Ireland, Patricia Rickard-Clarke of the Law Reform Commission, Michael Lynn, B.L., Diarmaid Ring, Mental Health Service User and Activist, Dr Mary Donnelly of UCC, Áine Hynes, Solicitor, Hugh Kane, CEO of the Mental Health Commission, Mark Felton, Solicitor, and Dr Darius Whelan of UCC. Dr Mary Henry, former independent Senator, spoke at the book launch which followed the conference. Each session was lively and informative, with plenty of genuine engagement between the 120 members of the audience and the speakers. One of the many interesting slides was one from Hugh Kane about the need for reforms of mental health law, which included the following items:
  • Urgent need for Capacity Legislation
  • Review of Section 59(1), Mental Health Act 2001 [This concerns Electro-Convulsive Therapy]
  • Section 23/24, Mental Health Act 2001 [Re-grading of patients from voluntary to involuntary status]
  • Measurement of performance, overall impact of mental health tribunals, Section 49, Mental Health Act 2001
  • Need for automatic independent legal representative for children admitted to approved centres, Section 25(14), Mental Health Act 2001.
  • Definition of ‘best interests’, Section 4, Mental Health Act 2001

Mental Health Law Conference & Book Launch

The Faculty of Law, UCC, and the Mental Health Lawyers Association have announced a jointly organised conference on Mental Health Law. The event will take place in Brookfield Health Sciences Complex on Friday 26 February from 10 a.m. to 4.30 p.m.

The conference will be followed at 4.30 p.m. by the launch of a new book on Mental Health Law and Practice by Dr Darius Whelan. Dr Mary Henry, former independent Senator, will speak at the launch.

For full details and a booking form for the conference, see www.ucc.ie/en/lawsite/eventsandnews/events/mentalh2010/

Speakers at the conference include:

If you wish to attend the book launch or require any further information, you should email lawevents@ucc.ie. RSVP: 19 February 2010

Autumn Publications from CCJHR Members

The Autumn saw a number of publications in criminal justice/human rights and other areas of law from staff and research student members of the CCJHR.

PhD Candidate Claire Murray published “Safeguarding the Right to Liberty of Incapable Compliant Patients with a Mental Disorder in Ireland” in the Dublin University Law Journal in which she considers the current legislative provisions concerning the rights of incapable adults in Irish law and argues that they leave incapable adults susceptible to deprivations of liberty. The article then considers the adequacy of constitutional habeas corpus petitions and Article 5, ECHR litigation to vindicate the right to liberty of these incapable adults.

PhD candidate Olufemi Amao also published an article in the DULJ. His article, entitled “Reconstructing the Role of the Corporation: Multinational Corporations as Public Actors in Nigeria”, considers the role of corporate governance rules in the protection of various stakeholders affected by the operations of multinational corporations operating in Nigeria. Arguing for a paradigm shift in corporate governance in Nigeria, Amao’s article posits generalisable arguments about corporate governance that, in his words, “advocates harnessing the potentials of the private structure for the public interest”.

Dr. Catherine O’Sullivan has an article in the current issue of the Irish Criminal Law Journal entitled “The Burglar and the Burglarised: Self-Defence, Home-Defence and Barnes” (p. 10). The article concerns the recent Court of Criminal Appeal decision in DPP v Barnes ([2006] IECCA 165) in which a burglar who had caused the death of the homeowner attempted to appeal a murder conviction on the basis of self defence. O’Sullivan contextualises the case in the light of DPP v Nally ([2006] IECCA 168) and the LRC proposals on self-defence (Consultation Paper on Legitimate Defence).

Dr. Ursula Kilkelly has published “Complicated Childhood: the rights of children in committed relationships” in Binchy & Doyle (Eds) Committed Relationships and the Law (Four Courts Press; Purchase).

Dr. Shane Kilcommins and Dr. Barry Vaughan (IPA) published “The Europeanization of Human Rights: An Obstacle to Authoritarian Policing in Ireland” in the European Journal of Criminology. The article explores the extent to which European human rights standards (mostly the ECHR) “temper[..] the shift towards a repressive model of criminal justice by introducing greater regulation and oversight of policing” in Ireland.

Fiona de Londras has published “The Right to Challenge the Lawfulness of Detention: An International Perspective on U.S. Detention of Suspected-Terrorists” in the Journal of Conflict and Security Law (currently available by advance access) in which she considers the role of detention practices of the US in the ‘War on Terrorism’ and advocates the vindication of suspected terrorists’ right to challenge the lawfulness of their detention under international human rights law. She also published a comprehensive text book on The Principles of Irish Property Law (Clarus Press; Purchase).

Dr. Mary Donnelly and Fidelma White have published “Webtraders’ obligations under the Distance Selling Regulations 2001—From legal standards to best practice” in The Commercial Law Practitioner (p. 172) in which they consider webtraders’ pre-contract information obligations under the European Communities (Protection of Consumers in Respect of Contracts made by means of Distance Communication) Regulations 2001 and principles of best practice that exceed the requirements of the Regulations but that might nonetheless be adopted by webtraders for reputational reasons. The article presents the authors’ arguments in the context of an empirical study of 80 Ireland-based websites.

Mental Health & Human Rights: Challenges for Law and Practice

Posted below are details of a seminar to be hosted by the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC on human rights implications of mental health law. Please circulate this to all those who you think might be interested and to any students, practitioners or researchers who may wish to attend. The seminar should of equal interest to lawyers and mental health and welfare professionals and students. Please RSVP as soon as possible to d.appelbe@ucc.ie
Full details are available here

5.30 Registration; Tea/Coffee

6.00 p.m.
• Welcome and Introduction: Professor Caroline Fennell, Dean of the Faculty and Head of the Department of Law, U.C.C.
• Seminar Chair: Dr. Edmond O’Dea, Chairman, Mental Health Commission
• Keynote address: Dr. Jimmy Devins, T.D., Minister of State with responsibility for Disability and Mental Health
• Dr. Darius Whelan (Faculty of Law, U.C.C.) – ‘European Human Rights Standards in the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006’

This paper will discuss the compatibility of the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 with the European Convention on Human Rights. It will consider issues relating to the powers and structure of Mental Health Tribunals and the Mental Health (Criminal Law) Review Board. The primary focus will be on Articles 5 and 6 of the ECHR and case-law such as Winterwerp v Netherlands, Johnson v UK and L.R. v France.

• Ms. Áine Hynes (Roger Greene & Sons, Solicitors, Dublin) – ‘The Mental Health Act 2001 in Practice: a Legal Representative’s Viewpoint’

• Dr. Mary Donnelly (Faculty of Law, U.C.C.) – ‘Treatment for Mental Disorders and Protection of Patients’ Rights’

This paper considers a range of human rights issues arising in the context of treatment for a mental disorder. Its focus is not just on patients who have been compulsorily detained under the Mental Health Act 2001and who come under the treatment framework set out in the MHA but also on those patients in psychiatric facilities (the vast majority) whose treatment is not covered by the MHA and which, currently is subject to the most minimal legal oversight.