The need to bring our mental health law into line with the European Convention of Human Rights is crucial to reform of the services writes Dr Justin Brophy.
The Minister for Justice, Equality and Law Reform, Michael McDowell, is to be congratulated for bringing forward the Criminal Law Insanity Bill 2002, which was recently debated thoughtfully in the Seanad. It had taken 25 years for Mr Justice Henchy's report and draft Bill to reach this stage, despite a litany of criticisms over the years on the failure to bring forward these reforms.
The imperative to meet our international obligations to bring our mental health legislation into line with the European Convention of Human Rights is crucial to reform of the services toward better practice.
Mr McDowell is clearly committed to implementing the Bill within his term of office but the consultative process with interested bodies has been limited and somewhat hasty. While the pace of the Bill's progress is commendable, as yet it has not been matched by an equivalent commitment to resource and fund transformation in services which will be required to implement these reforms.
What are the present service realities?
There is delay in the implementation of the Mental Health Act 2001, now in the doldrums due to severe under-funding, a situation which shows no signs of being rectified. This is against a background of a reduction in the proportion of funding allocated to mental health during the lifetime of the last government and the many deficiencies highlighted in the annual reports of the Inspector of Mental Hospitals and more recently in Amnesty Ireland's report, Mental Health - A Neglected Quarter.
The Irish Penal Reform Trust reported the difficulties of prisoners with mental health problems and the poor conditions of the Central Mental Hospital have been extensively highlighted and criticised.
The aspirations and promise held by the document Planning For The Future 1984 perished in the desert of the 1980s health cutbacks, resulting in severe deficiencies in community facilities necessary to implement modern mental health care.
This should signal danger for new proposals, given the present economic conditions. The result was marked regional inequalities on expenditure on mental health between health boards. This is made even worse by imbalances in social deprivation between boards, whereby the most deprived regions receive the least funding of all.
It is not surprising that the public feel that the psychiatric profession has too great a reliance on medication, but I, like many colleagues, routinely have to treat 60-plus outpatients a week, commonly without recourse to adequate or timely psychological intervention, psychotherapy, family therapy, occupational therapy, sheltered housing, hostel accommodation, adequately developed and resourced community mental health teams, specialist counsellors, outreach workers, early intervention programmes, services for adolescents and with only marginal access to specialised services for patients with learning disability, eating disorders, those with rehabilitation needs, services for the elderly mentally infirm, nursing-home beds or regional secure facilities.
It's little wonder that Irish psychiatry is also over-reliant on inpatient beds in the face of these inadequate resources in the community, but even these beds are often inaccessible, being blocked by inappropriately placed long-stay residents stranded by the lack of appropriate community placements.
Given that nearly a quarter of psychiatrists in Ireland are on temporary contract despite repeated attempts by Comhairle na nÓspidéal to get health boards to rectify this situation, it is not surprising that the psychiatric profession is somewhat sceptical about the real commitment of successive governments to improving mental health services.
Recruitment problems already exist within many disciplines in the health services and if morale reaches a critical breaking point, a flood of early retirements and unfilled posts - as has happened elsewhere - will follow. The real danger is in the collapse of services under the weight of carrying legislation which simply cannot be implemented.
What are the problems with the Bill? Giving the courts new powers as envisaged, to commit people to hospital found unfit to be tried or not guilty by reason of insanity, would result in patients being inappropriately detained in inpatient settings when community services would be preferable.
Inpatient facilities will be unnecessarily overtaxed. A person's liberty will be deprived without any certainty that their treatment needs will be met appropriately.
Furthermore, if persons with personality disorder alone are afforded grounds for diminished responsibility or not guilty by reason of insanity defences, they will quickly overwhelm the existing services which also cannot meet their specialist requirements within conventional treatment settings.
Disordered sexual offenders, disordered violent offenders and a host of other social non-conformist behavioural patterns might not only escape legitimate prosecution, but could also bog down mental health services in providing unsuitable or ineffective treatments for their needs at the expense of people who have ordinary and treatable psychiatric conditions.
This would fundamentally change the culture and values of mental health services to being centres for detention for persons of undesirable social behaviour, rather than exemplary treatment facilities for people with illness. This stigmatising effect on services would further drive people away from seeking treatment who need it and put us back into the asylum culture of 100 years ago.
The term "insanity" has no currency outside legal parlance and is now pejorative and should be replaced. The Bill should also be amended to specifically exempt violent mentally ill offenders into specialised treatment facilities away from ordinary community mental health facilities. Non-violent offenders could then receive treatment outside of prison in a least restrictive environment.
Similarly, persons with learning disabilities who offend and who are found unfit to be tried, or not guilty by reason of insanity, should be diverted into specialised services where their needs can be met.
The Inspector of Mental Hospitals has consistently reported on the misplacement of learning disabled persons detained in mental hospitals when specialised community residential facilities are more appropriate.
Before the court makes a determination, it should consult a representative of the service where it is considering sending the person, to ensure that the appropriate treatment facilities for that person's needs exist. Without this degree of linkage, people will be sent to the wrong services and services will be sent the wrong people.
Unless the legitimate and un-self-interested views of mental health user groups and the various professionals in amending the legislation are taken into account, the danger is that the legacy will be not the reform of criminal insanity legislation, but its consolidation into unworkability.
The outcome will be to compromise the intentions of the law and make for worse medical care, in the same way that judges are forced to detain disturbed adolescents in need of treatment and rehabilitation when unable to find placements for them.
The Minister's determination must be matched by the Government's equal commitment to accelerate development in mental health services, otherwise the irony will be to engender the decline of the very services they were intended to improve. This dis-equilibrium must be addressed by the Government if services are not to be stretched to breaking point.
Dr Justin Brophy is chairman of the Irish Psychiatric Association.