Mental Health, Criminal Law and Risk of Harm

Website of the Central Mental Hospital

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

John Gallagher and mental health law

It has been reported this morning that John Gallagher has handed himself in to the Central Mental Hospital.
The Gallagher saga has had major implications for mental health law in Ireland over the years.
Now that he is back in the CMH, his case may well be reviewed by the Mental Health (Criminal Law) Review Board.

Gallagher was found guilty but insane on two murder charges in 1989.
The verdict at the time was governed by the Trial of Lunatics Act 1883.
The 1883 Act was probably in breach of article 5 of the European Convention on Human Rights, as it provided for automatic detention on an insanity verdict and because it failed to provide for reviews of detention. However, the ECHR did not become part of domestic law until 2003. It was reported in 2005 that Eamonn Daly was challenging the compliance of the 1883 Act with the ECHR.

Gallagher brought various challenges to his detention in the Central Mental Hospital.  In Application of Gallagher (No.2) (1996) the High Court found that he no longer had a mental disorder but had a personality disorder.  The court upheld his continuing detention on the basis of a personality disorder, and in spite of lengthy ministerial delays in acting on recommendations of a non-statutory review committee.
The court emphasised that he could not be detained on grounds of risk alone as this would be preventative detention.

The Criminal Law (Insanity) Act 2006 established the Mental Health (Criminal Law) Review Board.
This board has three members and reviews the detention of those detained on insanity verdicts, even if their trials took place prior to 2006.  Reviews take place every six months.
The board has various powers, e.g. to order that the person be released or conditionally discharged.
If the person was conditionally discharged (from 2006 to 2010), the Board did not have the power to recall them if they broke the conditions of their discharge. As a result, the Board had a policy of never ordering a conditional discharge.

There were two High Court cases concerning the powers of the Review Board - J.B. v Mental Health (Criminal Law) Review Board [2008] IEHC 303; High Court, Hanna J., July 25, 2008  -  www.bailii.org/ie/cases/IEHC/2008/H303.html - and L. v Kennedy [2010] I.E.H.C. 195 High Court, Peart J., May 5, 2010  http://www.bailii.org/ie/cases/IEHC/2010/H195.html.

In L. v Kennedy, Peart J. did not order that Mr. L. be released (as the case was a habeas corpus application under article 40.4 of the Constitution) but hinted that if it had been a judicial review case he might have quashed the review board's decision.

The two cases rely heavily on Johnson v UK, an ECHR case.  However, it is arguable that they fail to focus adequately on the delay aspect of the Johnson case.  In addition, there is little discussion of the Irish constitutional principle against preventative detention.

The 2006 Act was amended by the Criminal Law (Insanity) Act 2010, which provides a power of recall if a patient discharged conditionally breaches the conditions.

Mental Health (Criminal Law) Review Board - new website

The Mental Health (Criminal Law) Review Board, established under the Criminal Law (Insanity) Act 2006, now has a website at
www.mhclrb.ie [link fixed 22 June'07 12.15 p.m.]

A brief summary of the provisions of the Criminal Law (Insanity) Act 2006 is available on the Citizens' Information website.