The Gazette 1971

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,

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

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