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The passage of the Criminal Law (Insanity) Act 2006 represented a significant modernising of the law relating to mentally disordered offenders. As a consequence, there is an increased awareness of such persons within the criminal justice system and increased reliance on the thinking contained within the act, although obviously only certain parts of the act came as completely novel concepts.

Perhaps surprisingly, the passage of the act – a major legislative development – was not accompanied by any significant proposals for updating the awareness and training of the most directly affected professionals, in particular, in this context, gardaí and legal advisors. While concepts such as ‘diminished responsibility’ and ‘insanity’ form part of the trial process, the question of mental disorder and similar disabilities has, in fact, monumental significance at a much earlier stage of the criminal justice process. The purpose of this article is to seek to give some guidance to solicitors as to how best to deal with these issues when they arise early in the process.

Statistically, it is an undeniable truth that the incidence of mental illness/disorder is higher in the prison population (and in particular in the remand population) than in the population as a whole, indeed significantly higher. Accordingly, for reasons both of legality and humanity, it is axiomatic that the earlier that mental illness or disorder, as a significant factor in an offender or offence, is identified, the better.

The likely first point of contact between a solicitor and such a client is at the garda station. In broad terms, such clients will be at the garda station for one of three purposes. Firstly, they will be en route to a hospital through civil process (under the terms of the Mental Health Act 2001), which is not a major concern for the purposes of this guidance. Secondly, very much our responsibility, they may be on their way to court. Thirdly, and this is of very substantial concern, they may have been arrested and detained for an investigative process (usually interview under caution) in respect of some relatively serious offence.

Although regulations made pursuant to the Criminal Justice Act 1984 in relation to the treatment of persons in custody in garda stations make express reference to the requirement for medical treatment for detainees appearing to be suffering from a mental illness (regulation 21(1)), the detection of mental illness, or indeed many other medical conditions, risks becoming a random event. Two recent High Court cases (referred to in more detail below) make this point eloquently, referring as they do to examinations by doctors at garda stations in varying circumstances. Solicitors and gardaí lack the training even of a GP, much less the specialist training that is often required to detect mental disorder. That being said, it is incumbent on solicitors at least to have an outline game plan in mind for the eventuality when they attend at a garda station to deal with a client who appears to be mentally unwell. In this regard, it might be noted that all of the common law jurisdictions that the committee has looked at in the course of the preparation of this guidance acknowledge the vulnerability of mentally disordered suspects and the desirability of medical intervention and the presence of an independent third party (variously identified and described) during questioning. It should be noted that the committee does not recommend that a solicitor act as that third party, as the purpose of attendance at the garda station is to offer legal advice, as opposed to social-work-type support.

The fundamental problem, of course, is recognition of illness. All practising solicitors will have seen at one time or another relatively disturbed people in custody whose illness has either gone unnoticed or unacknowledged by the gardaí, through, no doubt, benign oversight. On the other hand, some clients will be well known to their advisors as mental health sufferers, and the only issue will be whether or not the illness is active at the time in question.

Bearing in mind their lack of formal training in medicine, solicitors should be alert to symptoms exhibited in thought, speech or action of the detained person. If concerns arise, instructions should be taken from the detainee as to whether they are currently under medical care or on medication. It is perhaps advisable to be as diplomatic as possible in this questioning, as many such detainees are not anxious that their disability comes either to the attention of their advisor or indeed the gardaí.

Having said that, the committee believes that if a solicitor is concerned about the mental health of a detainee, they should so advise the detainee and recommend that the client instruct them to alert the gardaí and seek medical intervention. Guidance from the Law Society of England and Wales suggests that, in certain extreme cases, if the solicitor is strongly of the view that the police should be advised about the position and the client refuses to consent to it, the solicitor should consider withdrawing from the case for a possible conflict of interest. The client should be advised that it is not proposed to discuss the case with the gardaí, merely their state of health. The obligation will then be on the gardaí to organise a medical examination.

The client should be advised that, if they are to be examined by a medical practitioner, they should not discuss the reason for their current detention, but merely the state of their health. Case law throughout the common law world suggests that admissions made to a doctor during such an examination might be admissible in evidence against the client. For that reason, it might be useful for the solicitor to be present during any medical consultation, to ensure that the history/examination by the doctor is confined to a ‘mental state’ examination, rather than intruding upon the alleged or suspected offence. Similarly, if a third-party adult is brought in by the gardaí to assist the detainee, the client should be likewise advised.

Two recent High Court cases are of interest here. In Z v Khattak & Another ([2008] IEHC 262), Peart J endorsed, less than overwhelmingly, the quality of a ‘mental state examination’ carried out at the garda station by a GP. In C v St Brigid’s Hospital ([2009] IEHC 100), Dunne J reviewed events where a solicitor had requested a psychiatric examination of a section 4 detainee. Neither of the cases touches directly on the material that is the subject matter of this article, but the High Court in the C case endorsed the solicitor’s “genuine and proper concerns” in relation to his client, which had resulted in his removal to a psychiatric hospital from the garda station.

It is essential, for a number of reasons, that careful records be kept. In particular, if the gardaí are requested, and decline, to secure a medical examination or treatment for the client, that must be noted. Further down the line, as is now well established, the possibility exists that an issue at trial of contentious exchanges during the detention phase will fall to be ruled upon. That being so, it is incumbent upon the solicitor, not only for the sake of the client, but also for him/herself, to have a clear, accurate, dated and timed, contemporaneous record of events at the garda station.

The complexity of the role of the solicitor is highlighted by having firstly to identify (at least as a suspicion) a relevant illness or disorder; secondly, to react appropriately; thirdly to advise the client appropriately; and fourthly, at all times, to bear in mind the short, medium, and long-term aims for the best outcome for the client. Consequently, a clear understanding of one’s role, obligations and duties is essential. A solicitor in this situation is there only for the client, and to assist them in what may very well be a difficult and stressful time. Maintaining that stance may be difficult in the teeth of many conflicting and varied imperatives, but often in such a pressurised situation, the only source of solid support available to the client is their legal advisor.

It is worthy of mention at this stage that only in the rarest of cases is the personal safety of the solicitor likely to be at issue. The incidence of likely violence in the mentally unwell population is, statistically, no greater than that in the population as a whole. However, prudence should dictate that, in certain circumstances, the solicitor should ask the gardaí to have sight of the consultation, but of course be out of hearing. Under no circumstances, and this is probably true as a general proposition, should a solicitor be locked in a room with a potentially unpredictable detainee, for perfectly obvious reasons.

The aspirational document Vision for Change – 2006, which set out a programme for mental health services nationally, proposed that every person with mental illness coming into the criminal justice system should have access to the mental health care system in a civil setting. Quite clearly, this does not happen. Resources are a significant problem, and indeed the legal provisions at present are wholly inadequate. For example, when a case gets to court, there is no power, such as exists in England and Wales under the Mental Health Act 1983, to remand an accused to hospital for a “report on his mental condition”. This is not the same as the ‘fitness to be tried’ provisions contained in section 4 of our 2006 act. It is in fact a much wider power, and, depending on the report, current prosecution guidelines for the DPP and police forces of England and Wales suggest that the results of the report might have a significant input into whether the prosecution continues, depending, of course, on the gravity of the offence.

The nearest this jurisdiction has got to such a situation is an ad hoc scheme founded (and funded) by the Central Mental Hospital (CMH) at Cloverhill Prison, where a finding by medical staff there (on secondment from the CMH) of the combination of ‘major illness and minor offence’ will frequently result in the discontinuance of the prosecution and the placement of the accused within the civil mental health services, as indeed was the aspiration in A Vision for Change. For all that, practitioners should recognise that a remand in custody, ostensibly for reasons of mental ill-health, signifies, at least prima facie, a committal to the prison system – an outcome that will have only by chance a beneficial result for the client, and which accordingly should be, subject of course to instructions, resisted.

It should be noted that, in this jurisdiction, with the exception of the ‘fitness’ provisions referred to above, there are no specific provisions in the bail law relating to allegedly mentally disordered offenders. Accordingly, objections to bail can only be sustained on the basis of ordinary O’Callaghan/Bail Act principles. Subject, of course, to instructions, any application to “remand in custody for a psychiatric assessment” is without merit, although some distressed clients might be content to consent to such an application. Really, from that point on, ordinary principles of criminal litigation experience apply.

The critical factor in all of this is that the interests of the client are paramount. In only a tiny minority of cases is a solicitor entitled to withdraw from the case, not to follow instructions, or to divulge instructions. That minority of cases relate primarily to highly disturbed people who pose a threat of serious physical harm or worse to themselves or third parties. There is a useful discussion of the principles in the famous Tarasoff case (Tarasoff v University of California [1976 17 Cal 3d 425]). Although that case refers to the duty/entitlement of a therapist to disclose alleged threats to a third party, the committee is satisfied that such an entitlement, which is unlikely to arise in the lifetime of a practising solicitor, is fully endorsed by the Law Society. A further issue that might occasionally arise is where a client expresses suicidal ideas or intent. Suicide is not, of course, a crime, and this situation opens up a minefield of ethical considerations. Clearly, any such person should ideally be the subject of an early psychiatric referral. In the event that the client declines, the solicitor is, in the view of the committee, entitled – but not obliged – to withdraw from the case.

However, outside of the extraordinary and exceptional category of cases, the mentally disordered client is to be treated by a solicitor without any dilution of the principles that apply to the client/solicitor relationship in the ordinary way. The sense of trauma and isolation often felt by such clients, will, additionally, require a devotion to duty that underlines the vocational nature of the work that solicitors engaged in defence practice undertake.

Criminal Law Committee
Mental Health Subcommittee