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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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