The Gazette 1971

be reciprocated by these experts, they too appreciating

the tasks and limitations of the legislature, the executive

and the judiciary. This problem in Ireland is one of

great importance and deserving of full attention.

Mr. Thomas Finlay, Senior Counsel, said that it

was necessary to stir up the apathy and break down

the ignorance of society towards a constructive approach

to the problem of mental illness, and in particular, the

legal approach to it.

It would be essential to have a bridge of two-way

communication between lawyers on the one hand, and

the medical and sociological professions specially con-

cerned with mental illness on the other, because it

was necessary to present a balanced and informed

solution to the politicians with detachment.

Substantive law has in regard to those who are

mentally ill, four main functions.

(1) To lay down the procedure which, with safety to

the rights alike of both the individual and society, is

best designed to ascertain when the law is called upon

to make an ascertainment of who is and who is not,

mentally ill.

(2) To ensure that within the limitations of state

services the best cure, care and protection of the mentally

ill is secured.

(3) To ensure on the one hand, that no person whose

mental illness makes him truly irresponsible for what

otherwise would be a crime, is punished, and to ensure

on the other that society is protected from those whose

mental illness makes them dangerous.

(4) Finally to protect and care for the propertv and

possessions of those, who by. reason of mental illness,

cannot perform this function for themselves.

The mixture of legislation and judicial decision

which has accumulated to provide our present code for

these purposes, is neither homogeneous in its form, nor

in its origin. This branch of law is heavily informed by

two basic concepts which would today not gain

approval.

One

was

the

extreme

importance

of property in Victorian and earlier legal thinking.

This probably explains with regard to wardship matters,

what appears to be an imbalance between the emphasis

placed on the administration of the wards affairs, and

the emphasis placed on the cure and treatment of the

ward. The second would appear to be in regard to

criminal law, the concept so long retained, that there

was a priority of the protection of society as against the

rights or concern of the alleged criminal, and this

general idea would appear to have led to the harshness

so slowly disappearing, of the definitions of insanity in

relation to crime.

The first question to consider would appear to be,

what is the best designed and most appropriate proce-

dure for ascertaining, for any legal purpose, as to

whether a person is. or is not truly mentally ill and

whether this should be done by the courts at all. No

matter how much the courts can and should gladlv

accept the expert testimony and advice of the medical

profession with regard to this basic question it must

retain the ultimate responsibility and function of

determining that fact. This is the only form

of illness which can still lead to a person

being deprived of his liberty. Secondly, it is the only

form of illness which may alter or remove, what other-

wise would be responsibility for a criminal act. Thirdly,

it is the only form of illness which can and may, under

certain circumstances, protect a person from what other-

wise would be to him or her, the damaging civil conse-

quences of his acts or omissions. No matter how far

medical science may advance it seems impossible that

these consequences of it, in relation to the law and legal

rights will ever disappear and consequently it would be

the ultimate responsibility of the courts to enforce it.

We must next consider the extent to which a jury is

the appropriate body to decide the mental illness of a

person, and here a distinction should be drawn between

civil and criminal law. It seems wholly unjustifiable to

suggest that as for matters of any substantial

importance an accused person in this country still has

the right to have the question of his guilt or innocence,

and therefore the question of his liability to punishment

or not, dccided by a jury. It is undoubtedly necessary

that there should now be an extension of the definition

of criminal insanity.

The present verdict solemnly reached, of guilty but

insane accords neither with the reality nor with any

charitable version or understanding of the position of

an insane person charged with a crime. Surely we should

by now, long since have substituted for it, some such

verdict as "not guilty by reason of mental incapacity".

Normally speaking, the issue in a civil case arises

solely on the question as to whether a person should

continue to be detained in some mental institution. The

liberty of an individual is no less important to him, and

no less a vital matter than his guilt or innocence of any

crime. At the same time, one would have felt that a

judge was a more appropriate person to try this parti-

cular issue than a jury as he could gauge the appro-

priate treatment. One would hope that under modern

conditions, a judge would be extremely sensitive to the

views of qualified psychiatrists or psychologists with

regard not only to the condition of the person seeking

such an inquisition, but also as to the precise from of

treatment required. This decision of a jury on inquisi-

tion seems to ignore much of the advance in medical

science in this field in recent years. There is therefore

much to be said for the suggestion that this particular

form of trial of the sanity of a person should be left

in the hands of a judge alone.

A person found insane and unfit to plead, or not

guilty by reason of a mental incapacity, must necessarily,

for his own protection and cure, receive some treatment.

There are certain basic principles which can now easily

be applied to the form of sentence or judgment which

is recorded in respect of such a person. Firstly, there

must not either be in fact or in appearance, any idea of

punishment in connection with it. Secondly, it does not

seem necessary that such a person so finding himself in

need of treatment for a mental illness, should have any

different treatment by reason only of the fact that the

source of his assessment, to put the matter in those

terms, is from a criminal court rather than from a

clinical observation, or a medical examination.

There must be in modern understanding of the types

of mental illness many patients requiring for their cure

and treatment, less stringent and harsh control. In these

circumstances it would be necessary for every judge to

have available to him a ready and rapid method of

assessing the precise form and place of treatment that is

required. Such an assessment can only come from the

medical profession, and it is only a matter of procedure

to set up an assessment board to whom a person found

unfit to plead, or not guilty by reason of mental incapa-

city, could be submitted, and on whose recommendation

a judge would normally act.

The next major area of the necessary jurisdiction is

the jurisdiction which the courts must exercise over the

prnpertv and affairs of patients.

Would you not be inclined to recommend, that

some close relative if fitted by business and knowledge,

should be the person basically controlling their affairs,