IRISH judges are to lose the power to send defendants charged with minor offences to the Central Mental Hospital (CMH) for two weeks without hearing any medical evidence.

The power was given to them in a 2006 law, passed when Michael McDowell was justice minister, and has been criticised as “not acceptable in any jurisdiction” by Harry Kennedy, the director of the CMH.

Dundrum’s 82-bed forensic-psychiatric facility is vastly over-subscribed as it is the only hospital designated by the 2006 act to take patients from the criminal justice system. Many of its patients have have been convicted of murder or found not guilty by reason of insanity.

Last April, in a letter to the Department of Justice which has been released under the Freedom of Information Act, Kennedy said: “It is not acceptable in any jurisdiction that I know of for the criminal courts to find a person mentally disordered, and commit them to a hospital without medical certification that a mental disorder is present.”

The 2006 law provided for the fitness of defendants to stand trial in the district court to be tested, but medical staff say some judges send defendants straight to the CMH without any medical direction.

Kennedy warned the department that if the law wasn’t modified, “we will otherwise have a continuation of the present situation where unannounced patients arrive at the hospital with no chance of us arranging an appropriate bed”. The CMH would be unable to cope with the number of cases judges were referring to it “even with twice the number of beds”, he said.

Earlier this year John Ughamadu, a Nigerian arrested after he slept naked in a nativity crib in Limerick, was sent to the CMH by a district court judge. Ughamadu appealed to the High Court after being held in a garda station for a week because no bed was available in the CMH.

The High Court judge said Ireland may be in breach of the European Convention on Human Rights and, given the lack of beds in the CMH, there needed to be a “plan B” to deal with such cases.

The Department of Justice said last week that amendments to the 2006 act are being finalised with the attorney general. It is expected that the changes will require judges to consult medical experts before sending prisoners to the CMH.

Darius Whelan, a lecturer in law in University College Cork, said judges needed the power to send defendants requiring psychiatric attention to a facility other than the CMH. “The CMH is a high security environment and it doesn’t seem appropriate to send people accused of minor offences there,” said Whelan.

Before 2006, judges only sent prisoners to the CMH after hearing medical evidence about their condition. “Certification by a consultant psychiatrist from the designated centre is the absolute minimum essential to ensure that no injustice is done through wrongful detention in a psychiatric hospital,” Kennedy told the department earlier this year.

Yesterday he said the current system was “contrary to every normal protection of people’s rights. There have been many examples of inappropriate use of this law.”

McDowell’s Criminal Law (Insanity) Act 2006 has been criticised already for other flaws. The Department of Justice already had plans to amend it so CMH patients who are suitable for conditional discharge can be released under licence.

Earlier this month the Mental Health Review Board ordered the first unconditional release of a CMH patient under the 2006 act, after holding 238 reviews. At least 12 other CMH patients could be released once the board is given the power to recall them if they break the conditions of their release.

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