The Gazette 1971

act and this must happen in conjunction with a positive programme of public education, such programme be made the responsibility of the Minister for Health. It would indeed be a good thing if members of the legal profession were to take some part in such psychiatric community care. Family solicitors should be encouraged to advise clients where appropriate of the need for psychiatric attentions for members of their families. As regards the jurisdiction of wards of court, the only Irish work on this subject is the book published in 1930 by the present Mr. Justice L. G. E. Harris. Mr. Harris states that the origin of the jurisdiction of the British Crown over the custody of the persons and estates of those of its subjects who are non compos mentis has never been satisfactorily explained. However, the High Court has now succeeded to the lunacy jurisdiction formerly delegated by the Crown to the Lord Chan- cellors, a jurisdiction which was extended and modified by the Lunacy Regulation (Ireland) Act, 1871. The main function of the office of wards of court is managing and administering the property and affairs of those of the mentally ill who, having such property, are found incapable of managing it themselves. Recently in a series of articles in The Irish Times headed "The Lissadell Affair" allegations about the mis-management of an estate under wards of court were freely made and not satisfactorily answered. Undoubtedly the law relat- ing to this jurisdiction badly needs to be brought up to date and codified as it was in Sections 100 to 120 of the English Mental Health Act, 1959. The jurisdiction is in the main regulated by the Lunacy Regulation (Ireland) Act of 1871 now reinforced by some 100 statutory orders, which makes a study of it a formidable challenge. However, it would seem that a proper system of judicial management over the property affairs of people incap- able of doing so themselves is most necessary. It is essen- tial that a modern re-assessment of this jurisdiction should take place. Under Section 283 of the Mental Treatment Act, 1945, no power, restriction or prohibi- tion contained in the Act is to apply in relation to a person of unsound mind under the care of a judge of the High Court or of the Circuit Court. This means in effect that wards of court are not governed by the Mental Treatment Act, 1945, but are solely placed, as regards their personal and property interests, in the hands of the President of the High Court. Obviously this may give rise to serious difficulties—such as possible illegal detention—and that wards of court should not be allowed out on parole or on trial or to discharge them without the sanction of the court. The authority of the court should be confined to what is strictly necessary. As regards the suggested codification of the present English jurisdiction as set out in Sections 100 to 120 of the Mental Health Act, 1969, it seems necessary to consider the following: (1) The abolition of the rather archaic system of inquisition. It should be replaced by a consideration of medical evidence given in court. (2) Such medical evidence, if conclusive, might be consid- ered as an adequate substitute for the present inquiry before a jury. (3) "Persons of unsound mind" should henceforth be referred to as "patients". (4) The system of appeals outlined in Section 111 of the 1969 Act deserves special study. Finallv we must consider those who are referred to in law as "criminal lunatics". The first question to be considered is who comes under the legal definition of "criminal lunatic". This applies to any person who, while in custody, has been certified to be insane in any of the following circumstances : (a) while on remand or awaiting trial,

(b) while undergoing sentence either in a local or a convict prison, in St. Patrick's Institution or in an Army detention barracks, (c) persons who have been found insane on arraignment, (d) persons who have been put on trial on some criminal charge, have been found guilty "but insane" by a jury, and (e) that class of persons often described as "dangerous" lunatics. Thus it will be seen that the term may apply to persons who have never been tried and may never even have committed a crime. It will be appreciated that the term "criminal lunatjc" is most unsuitable. The 1966 com- mission report considered the term "completely incon- sistent with contemporary psychiatric concepts" and used the term "custody patients" instead throughout. Generally speaking it is correct to say that the judge continued, from 1843, to charge juries as to their ver- dicts on the basis of what had been laid down in the McNaughton Rules. All efforts to extend the scope of the defence beyond the confines of the rules by judicial interpretation or by the 1924 committee on insanity of criminals, were unsuccessful in England. The law in Ireland on this important topic has gradually diverged from the course laid for it in England. The really signi- ficant breakthrough was achieved in the case of Edward Hayes charged with the murder of his wife in November 1967 when Mr. Justice Henchy stated that if the jury was satisfied that at the time of the attack, the accused man's mind was so affected by illness that he was unable to restrain himself a verdict of guilty but insane should be returned. This test of the incapability of controlling his conduct by disease affecting his mind while knowing the nature and quality of his act and knowing that the act was wrong, as was the medical evidence, was clearly going outside the McNaughton Rules, and Hayes was acquitted as, "guilty but insane" on this ground. So too we see a rejection of the whole concept of the rules by Chief Judge Bazelon of the U.S. Court of Appeals in the 1934 case of Durham v United States in which the so-called "Durham Rule" was laid down as a new test of criminal responsibility. It stated simply that an accused is not criminally responsible if his act was the product of mental disease or defect. In U.S. v Freeman (1966) the judgment of the court deliv- ered by Judge Kaufman accepted the following test: "a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appre- ciate the wrongfulness of his conduct or to conform his conduct to the requirement of the law". The Commission of Inquiry on Mental Illness has recommended the establishment of a department of forensic psychiatry. With the recognition by the courts that more and more of the persons who come before them accused of offences should not be regarded as criminally responsible because of the element of mental abnormality the problem of dealing with such cases is bound to become more acute and one could ask whether the legal test for insanity in view of modern psychiatric concepts ought to be left to individual judicial inter- pretation and expansion and to the writings of academic lawyers or psychiatrists. A new formulation of the rules regulating psychiatric evidence in criminal cases and of their presentation in court must be achieved by the judiciary and by forensic psychiatrists pooling their respective interests and resources, and propelling our legislators into action. It might be argued that the existence of insanity prevents the existence of crime and that once the fact of insanity is established the case passes outside the realm

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