Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Minister of State at the Department of Health and Children, Deputy Tim O'Malley, re-examined section 2 in light of the discussion on Committee Stage regarding Senator Henry's substantive point relating to the need to consult with the Inspector of Mental Health Services. He has recast the entire section in a separate amendment which is being discussed with this amendment. Although he has not engaged the services of the Inspector of Mental Health Services, the Mental Health Commission has been brought in with regard to the role envisaged by Senator Henry in an attempt to address her point.

There are a number of points in the re-drafts as submitted by the Minister of State. It clarifies that the Central Mental Hospital is a designated centre for the purpose of the legislation. First, it is better to state that openly in the legislation rather than deal with it as a matter of subordinate legislative inference. Second, it addresses Senator Henry's substantive point except that it requires the Minister for Health and Children, when designating a centre, to consult with the Mental Health Commission rather than the Inspector of Mental Health Services when a psychiatric centre is involved and to obtain the consent of the Minister for Justice, Equality and Law Reform when a prison or any part thereof is involved.

Third, this section proposes to accommodate another amendment yet to be discussed concerning the transfer of prisoners from prisons to designated centres. I touched on this earlier when discussing the interpretation centre. The fourth aspect of the amendment is being brought forward in light of suggestions by the Department of Health and Children and proposes to replace the word "institution" with "in-patient facility". This will allow in-patient facilities which are not hospitals to be designated under the Bill.

Amendment No. 13 was proposed on Committee Stage and the Minister of State stands over his reasons for objecting to it. A designation of centres for persons covered by the terms of this Bill is a matter for the Department of Health and Children in consultation with the Department of Justice, Equality and Law Reform where such a centre is located within a prison.

On the one hand, the State has a duty to provide care and treatment for the person who has been found by a court to be unfit to be tried or not guilty of a criminal offence by reason of insanity. On the other hand, there may be circumstances whereby it might be appropriate to detain a person in a prison rather than a psychiatric hospital. That is the unfortunate reality. We cannot rule out that at some stage requirements of public safety may override other considerations and the person may have to be detained within the confines of the most secure facility available. Any concern regarding the treatment, care and well-being of a person detained in such circumstances are met by the provisions in this Bill governing the establishment of the new mental health criminal law review group board and the extensive provisions of the Mental Health Act 2001.