The tragic case in Cobh, Co Cork, highlights the treatment of those with mental disorders by the criminal justice system.
The Criminal Law (Insanity) Act 2006 introduced major changes 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 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 for assessment. 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 from day to day).
Depending on the assessment, the judge can then either order that the person be detained or discharged. In this case, it appears the judge ordered 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 CMH, the question of the person’s release would be in the hands of the independent Mental Health (Criminal Law) Review Board. This board has four members and usually three 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 section 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 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, in need of reform to strengthen the rights of the individuals concerned.
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 inappropriate and anachronistic.
-Dr Darius Whelan is a UCC law lecturer and president of the Irish Mental Health Lawyers’ Association.
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