If someone with mental illness commits a serious crime like murder how do you balance the needs of treatment and justice?
The courts have grappled with this issue under the Criminal Law (Insanity) Act 2006, which introduced the verdict of “not guilty by reason of insanity” – replacing the contradictory and much criticised “guilty but insane”.
Fears in some quarters that the law would act as a “get-out-of-jail card” for dangerously disturbed individuals has not been realised. In fact, defence lawyers are prone to complain about the obstacles to mounting an “insanity defence” or pleading diminished responsibility under the Act which would – if successful – reduce a murder charge to manslaughter.
Dr Brendan Kelly, consultant psychiatrist at the Mater hospital, says "some psychiatrists would object entirely to the idea of an insanity defence", although "the majority . . . would agree there are occasions when an individual is so mentally ill they can't be held responsible for the actions".
He says it’s only right, however, that the insanity defence is sparingly used.
“In the psychiatric community there is awareness that individuals with mental illness for the most part are not entirely mentally ill. You need to be very mentally ill to think it’s okay to kill somebody.
"The vast majority of people with mental illness do not think it is okay to kill somebody. So it's correct that the defence of 'not guilty by reason of insanity' is a rare one because mental illness of that severity is very rare."
Diminished responsibility
Last June a Co Clare farmer was sentenced to life for murdering a 21-year-old student after unsuccessfully pleading diminished responsibility in the Central Criminal Court.
Joe Heffernan (33), of Cappagh Beg, Barefield, Ennis, claimed an adjustment disorder following his father's death had caused him to think he was killing the devil.
However, Dr Sally Linehan of the Central Mental Hospital said that while adjustment disorder was a mental illness, Heffernan did not satisfy other criteria for the insanity defence. She believed he had understood his actions were wrong, and she was "not satisfied the mental disorder rendered him unable to refrain".
Some people may fear that creating special rules in the courts for people with mental illness could be exploited by the likes of serial killers.
Yet psychiatrists are quick to point out that this is based on the mistaken view that psychopathy and psychosis are the same thing.
They stress the former is a behavioural disorder rather than a mental illness.
Psychopaths are characterised by low levels of empathy and remorse, and the mainstream view in medicine is that they are probably untreatable and almost certainly incurable.
In contrast, psychosis is where someone loses contact with reality in some important way, and may experience hallucinations, delusions or hearing voices. Common underlying conditions are schizophrenia and bipolar disorder, for which treatments can be found.
The Department of Justice is currently reviewing the 2006 Act, along with the other main piece of legislation in this area, the Mental Health Act 2001, which among other things allows people with mental illness to be detained for their own safety. Some 25 per cent of civil detentions are undertaken by the Garda and some mental health campaigners believe there are inadequate safeguards to protect individual rights.
'Warehoused'
Barrister Niall Nolan, who has successfully challenged a number of detentions in the High Court, says "we need to make sure people are not being 'warehoused' and shortcuts are not being taken". He cites an inconsistency in standards of review, noting a client of his was deemed unfit for release from the Central Mental Hospital by the Mental Health (Criminal Law) Review Board, which operates under the 2006 Act. But the same client was deemed fit for release by a Mental Health Tribunal operating under the 2001 Act.
“That man is back living with his family; he spent three years in the Central Mental Hospital when he should not have been.”
Dr Kelly says the key to avoiding unnecessary civil detentions is ensuring more options are available to concerned family members and gardaí, such as community mental health services.
“Some gardaí are excellent at dealing with individuals who are mentally ill and trying to get them access to mental healthcare.
"There are occasions also when the arresting garda feels they can't in all conscience let a clearly ill person just walk off into the night."
High-income countries
He notes "internationally there is a high rate of mental illness among prisoners", and studies show we are about average for high-income countries.
However, he adds, “common to everywhere is that it’s very hard to treat individuals with mental disorder who engage in offending behaviour in a way that balances the need for treatment with the need for justice, the legitimate individual and societal expectation of justice.
"It's really hard to weigh it up. Ireland is by no means the worst – but there is room for improvement in Ireland too."