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The House of Representatives yesterday (February 7) approved two pieces of legislation, making special provisions for the treatment of those suffering from mental disorders, who come in conflict with the law and as a consequence enter the criminal justice system.
They include the Criminal Justice Administration (Amendment) Act and a companion bill, the Legal Aid (Amendment) Act of 2005.
The Criminal Justice Bill has been amended to: clarify the procedure for the trial of the issue of the fitness of a defendant to stand trial; provide for the regular review of cases of accused persons remanded in custody after being found unfit to stand trial; and extend the provisions for legal aid to an accused person in respect of whom a court makes a direction that the issue of fitness to stand trial may be determined.
The Bill also provides for the widening of the range of disorders that may be made by a court, where an accused person is found unfit to stand trial, or in the case of a special verdict that a defendant was guilty of the act or omission charged against him, but was suffering from a mental disorder at the time of the commission of the offence. Further, the terminology used in the Act is to be updated by substituting the words “forensic psychiatric inmate” for the words “criminal lunatic”.
Piloting the Bill, National Security Minister, Dr. Peter Phillips explained that the three categories of mentally ill persons currently in the island’s criminal justice system included, those awaiting trial or determination of competence to stand trial; persons who have been found guilty but were insane; and those convicted of manslaughter instead of murder on the grounds of diminished responsibility.
Dr. Phillips noted that the amendment was designed to deal primarily with persons who fell within the first two categories.
Unfitness to plead is a basis for detention as is set out in section 15 of the Constitution, and a person may be deprived of his liberty if such a person is reasonably suspected to be of unsound mind.
Explaining the need for changes to the legislation, the Minister said under the current law, “if a person is found by a court to be unfit to stand trial or plead, or is convicted but is found to be insane, the court will order that he be kept in custody during the Governor General’s pleasure, hence the frequent reference in the Correctional Services Act to persons detained pursuant to the Governor General’s warrant”.
However, he said, “when the Governor General would be moved to act has been left to the vagueness of a system that has failed to act and thus has resulted sometimes in undue penalty, having being imposed”.
Dr. Phillips said this system, which first evolved in the United Kingdom in the 1800s and which was transferred to Jamaica in the late 19th Century, “cannot be expected to work without significant adjustment, after more than 130 years has elapsed”.
He noted that there were deficiencies in the legal administrative and treatment machinery and that proper facilities to monitor the progress of persons detained for treatment have been inadequate, with no reliable mechanisms to ensure that upon having been certified by the medical practitioner of being capable of standing trial, the inmate is taken before the courts for a determination to be made.
As far as the legislation was concerned, he pointed out, efforts began as far back as 1982 to change the system when the then Chief Justice highlighted the gap in the legislation, in respect of the jurisdiction of the Resident Magistrate to determine fitness to plead.
Explaining, Dr. Phillips said all criminal cases commenced in the Resident Magistrate’s court, except on the rare occasion when the Director of Public Prosecutions brought an indictment in the Circuit Court, without a preliminary examination.
“But the Resident Magistrate’s court, unlike the Supreme Court, has no authority to try a fitness issue, the result being that a person on a misdemeanor charge, such as malicious destruction of property, would be remanded for medical observation, and in the scheme of things, such persons sometimes get lost in the system, with the absence of an effective tracking and monitoring mechanism,” he told the House.
However, he noted that the majority of persons awaiting fitness determination were charged with serious crimes. An audit last year of the two correctional institutions where mentally ill inmates are housed, revealed that there were some 75 such inmates, the Minister informed, adding that, “this number has been reduced and the situation is being closely monitored”.
Twenty-eight of these inmates have been charged with murder and the others with offences ranging from arson to wounding.
Minister Phillips said there has been strong and effective advocacy for those who have been incarcerated. Noting that modern psychotropic medication offering better symptom control have been developed, he pointed to the fact that the Health Ministry and other relevant agencies of the state have placed emphasis on community-based mental health services, consistent with the programme of deinstitutionalization that began a decade ago.
Meanwhile, an inter-agency task force comprising the correctional services, the Ministries of National Security, Health and Justice have been working to establish suitable forensic psychiatric facilities in the correctional institutions.
In 2001, Dr. Phillips informed, guidelines were issued by the Chief Justice to the Resident Magistrate’s court on how to deal with mentally ill offenders and monitor their treatment. He noted also, that a task force led by the Department of Psychiatry at the University of the West Indies and comprising representatives from the police, the medical profession, the correctional services, the Independent Council on Human Rights and the Minister of Justice, met over nine months last year and submitted a number of recommendations which have been carefully considered.
Under the updated law, he emphasized, “there is to be a formula for a special verdict to refer to mental disorder and the court given several options, with the emphasis always being on treatment, rather than punishment”.
Meanwhile, the Legal Aid (Amendment) Act provides support by way of legal representation to the mentally ill offender, by guiding him/her through the legal process as far as fitness to plead or to stand trial is concerned, permitting the trial of the general issue to be proceeded with, using the same jury that determined the fitness issue, with the consent of the accused, therefore relieving the jury system of having to empanel two sets of jurors in one case.
While expressing support for the amendments, Member of Parliament for West Central St. Catherine, Dr. Ken Baugh said the legislation should not be taken in isolation and should be linked to the broader issue of the rights of the mentally ill, outreach programmes, and improving mental health services. He also emphasized the importance of sufficient medical care for inmates and better supervision in the distribution of medication in correctional institutions.