The Gazette 1971

of criminal law. On the other hand it might be urged

that the crime exists notwithstanding the perpetrator's

insanity but that such a crime differs from other crimes

in that the criminal behaviour stems, not from a per-

manent moral defect in the character of the offender

but from a moral defect resulting from a purely transient

pathologic condition, which may be improved or cured.

Society, however, must prevent transgressions of the

criminal code even where the transgressors are, by virtue

of mental incapacity, morally irresponsible. The solution

must be sought in a preventive detention which will

protect the wellbeing of society and at the same time

prove therapeutic from the detainee's point of view. As

was stated in

U.S. v Freeman

(1966), "our function as

judges requires us to interpret the law in the best

interests of society as a whole. We therefore suggest

that if there are inadequate facilities and personnel in

this area, Congress, the state legislatures and federal and

state executive departments should promptly consider

bridging the gap".

We must finally consider the idea of a central place

for the separate confinement of such custody patients

and the procedures whereby custody patients are

admitted either to a district mental hospital or to the

Central Mental Hospital. This hospital founded at

Dundrum in 1850, with the express object of the segre-

gating persons who had committed offences, or were

charged with offences, from other patients. The present

legal provisions may be summarised as follows : persons

in custody who are found to be mentally ill may be

admitted either to a district mental hospital or to the

Central Mental Hospital on the order of the Minister

for Justice. This order obliges the resident medical

superintendent to keep the patient in question "in con-

finement until the further order of the Minister for

Justice". Such persons may also be transferred by the

Minister for Justice from the Central Mental Hospital

to a district mental hospital and vice-versa. As to the

discharge procedures, under Section 3 of the Criminal

Justice Act,. 1960, the Minister for Justice may release

temporarily any custody patient who is not deemed

dangerous to himself or others. Otherwise the discharge

of custody patients is regulated as follows : persons "on

remand", or awaiting the "government's pleasure" hav-

ing been found insane by a jury either on arraignment,

or after trial must stay in the district mental hospital

or the Central Mental Hospital until they are certified

as having recovered. They may then be returned to

custody or discharged by the Minister for Justice. In

the case of persons found guilty of murder but insane

the matter is first referred to the Government by the

Minister for Justice before conditional or absolute dis-

charge is authorised. Persons awaiting trial stay in the

mental hospital only until the court to which thev are

brought to trial is held. The person is then usually

arraigned, found unfit to plead and dealt with as afore-

mentioned. Persons undergoing sentence remain in the

mental hospital, if they continue to be of unsound mind

until their sentences expire, when, as a result of a

Minister's order, they are dealt with as ordinary patients.

If they recover before their sentences expire they are

returned to prison. Finally there is the judicial power of

transfer to the Central Mental Hospital under Section

207 of the Mental Treatment Act, 1945, validated by

the Supreme Court in the

State (O'Neill) v Central

Mental Hospital

on 28th July 1969. This states that a

patient in a district mental hospital may be charged

with an indictable offence, before a justice of the District

Court sitting in such a district mental hospital. If, on

the basis of the evidence given, the justice is of opinion

that there is

prima facie

evidence that the person com-

mitted the offence and would, if placed on trial, be

unfit to plead, the justice may by order certify that the

person is suitable for transfer to the Central Mental

Hospital. The inspector of mental hospitals then exam-

ines this patient, who is kept meanwhile in the district

mental hospital concerned and, after consideration of

the report of the inspector, the Minister for Health,

may, if he so thinks fit, by order, direct and authorise

the transfer.

However, two events of the past six months have

focused much attention on these legal provisions and

on the institution of the Central Mental Hospital. The

first of these is the case of the self-styled Maoist, Martin

Dolphin, who while serving a one-week sentence in

Mountjoy for contempt of court, found his imprison-

ment suddenly and arbitrarily extended under Section

13 of the Lunatic Asylums (Ireland) Act, 1875. The

second event was the escape of several young men from

Dundrum in recent months. This involves, firstly, the

whole question of the law as a guardian of individual

freedom, when incomplete and unsatisfactory evidence

from a limited selection of doctors can cause an indi-

vidual, having no legal adviser, to be deemed as "unfit

to plead" and then subjected to what has been called a

medico-legal conspiracy and resulting in what would

seem to be an arbitrarily extended imprisonment.

Secondly, there is the disquiet as to the powers vested in

psychiatrists who by unknown criteria can curtail indi-

vidual freedom for instance by equating political rebelli-

ousness with mental ill-health. Finally there is the very

important query as to the unsuitability of Dundrum

Hospital as a place used for the care and treatment of

custody patients, who could suitably be provided for in

district mental hospitals. Such unsuitability is based on

facts such as the inadequacy of remedial psychiatric

care and the undesirability of lack of segregation of the

old and young patient. The unease about Dundrum as a

secretive institution is surely justified by the remarks of

the present governor of Dundrum. when she remarked

on a recent television programme that a number of

people in the hospital should not be there at all. If

Dundrum Hospital is to be retained as a central place

of detention for custody patients who have committed

heinous offences or who portray very violent or homi-

cidal tendencies then steps will have to be taken for the

improvement of the care and attention available there.

It is to be hoped that the proposed April takeover of

Dundrum by the Dublin Health Authority is a step in

this direction. The provisions about the transfer to the

Central Mental Hospital should be consolidated with

elucidation on the procedures by which persons are

selectively assigned to it ensuring that where possible

custody patients will be catered for in district mental

hospitals. Finally an acceptable criterion must be pre-

sented governing "fitness to plead".

In conclusion, unfortunately the problems of the

mentally ill are still not free of the ignorance and shame

which have attached to them historically. It is the duty

of those who should know better that all such stigma

be completely eradicated. Until it is fully realised that

mentally ill people are not outcasts of society to whom

the administration's hand should be occasionally

extended, rather they should be regarded often-

times as a product of our society to which such adminis-

tration owes a duty. This duty can to a large extent be

fulfilled by enlightened attitudes and action, but such

enlightened attitudes must extend all along the line,

through the lawmakers and law enforcers. The politi-

cians and the judiciary must be prepared to regard to

the fullest degree the expertise of psychiatrists, psycho-

logists and social workers—obviously this attitude must