Ms Patricia Gilheaney:

I thank the Chairman and committee members for their kind invitation. The Mental Health Commission welcomes the spotlight the committee is placing on children’s mental health. I am joined by my colleague, Dr. Susan Finnerty, Inspector of Mental Health Services. We intend to share the time available to us. I intend to address the submission from the Mental Health Commission to the committee on the Mental Health (Amendment) Bill 2016. However, I do not intend to detain the committee by going through the detail of some of our technical suggestions.

The Mental Health Commission is an independent statutory body established pursuant to the Mental Health Act 2001. Its principal functions are to promote, encourage and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services and take all reasonable steps to protect the interest of persons detained in approved centres. The commission regulates the provision of inpatient mental health services through inspections carried out by the Inspector of Mental Health Services and her team and registration, ongoing monitoring and enforcement.

Since its establishment, the commission has been unwavering in its view that children should be admitted to age-appropriate facilities. Certain provisions of the 2001 Act apply to children and it is in that context that the commission welcomes the invitation to comment on the Mental Health (Amendment) Bill 2016. The principles underpinning the Act are enshrined in section 4 which refers to a person and, as such, is applicable to a child. Section 4 relates to the making of a decision under the Act concerning care and treatment. Section 4(1) states the best interests of the person shall be the principal consideration, with due regard being had to the interests of other persons who may be at risk of serious harm if a decision is not made. Section 4(2) provides for the statutory duty in relation to any proposal to administer treatment to a person to properly notify such person of that proposal and take due account of his or her representations before making any decision in that regard. Section 4(3) further states that in making a decision concerning care and treatment of a patient, due regard shall be had to the need to respect the right of the person concerned to dignity, bodily integrity, privacy and autonomy.

Section 23 of the Act makes provision for the detention of a child who is a voluntary patient in an approved centre but whose parents, or those acting in loco parentis, indicate a wish to remove the child but the child is still suffering from a mental disorder.

The sole section of the Act that relates exclusively to children is section 25, which makes provision for the involuntary admission in certain circumstances of children suffering from a mental disorder. Involuntary admission of a child is only possible by way of a District Court order pursuant to section 25 of the 2001 Act. Section 25(14) of the Act refers to provisions of the Child Care Act 1991 that apply to proceedings under section 25 of the Act. Such sections relate to procedural matters that are taken into consideration when an application under section 25 of the Act is made to the District Court.

Section 26 relates to the granting of leave and section 27 provides for the voluntary admission of a person, including a child, to an approved centre. In summary, the sections of the 2001 Act that relate to the admission of a child are sections 23(2), 23(3), 23(4), 25, 26, 27 and 29.

The commission actively engaged in the review of the Mental Health Act 2001. It was represented on the steering group established in August 2012. In addition, members of the commission’s legislation committee met the chair of the expert group. Following publication of the expert group report, the commission submitted its views. The report contains 165 recommendations. Recommendations 111 to 123, inclusive, relate specifically to children and are as follows.

Provisions relating to children should be included in a stand-alone part of the Act and any provisions of the Child Care Act which apply should be expressly included rather than cross-referenced. A child should be defined as a person under 18 and thus brought into line with the Children Act 2001. A dedicated children's part of the Act should stipulate the following guiding principles that every child should have access to health services that aim to deliver the highest attainable standard of child mental health; the autonomy and self-determination of the child should be respected in so far as practicable in conjunction with parents or persons as required acting in loco parentis; and there must be consultation with the child at each and every stage of diagnosis and treatment with due weight given to his or her views consistent with his or her age, evolving capacity and maturity and with due regard to his or her will and preferences. Services should be provided in an age-appropriate environment, and services should be provided in close proximity to family and-or carers wherever possible. The child must receive the least intrusive treatment possible in the least restrictive environment possible.

Where there is an intervention on behalf of the child, his or her best interests must be taken into account, and "best interests" must be defined in a way that is informed by the views of the child, bearing in mind that those views should be given due weight in accordance with his or her age, evolving capacity and maturity, and with due regard to his or her will and preferences. Children aged 16 or 17 should be presumed to have capacity to consent or refuse treatment. For admission of a 16 or 17 year old to proceed on a voluntary basis, the child must also consent or at least must not object to his or her voluntary admission. Where a 16 or 17 year old objects, the case should be referred to a child-friendly family district law court which can determine whether the child has the necessary maturity or capacity to make an informed decision. The group acknowledges that there should be no automatic presumption of capacity for children under the age of 16. However, in such cases, the views of the child must be heard and service providers must give them due consideration and weight.

The commission, in its submission on the report to the Department of Health, indicated its support of the recommendations relating to children, many of which place the child or young person in a more central position in the process of admission, care and treatment. However, the commission also stated that further attention needs to be paid in revised mental health legislation to the human rights of children.

It also made reference to the response of the Committee for the Convention on the Rights of the Child, which, in its response to Ireland in its report in February 2016, referred to the following: the lack of comprehensive legislation on children’s consent to and refusal of medical treatment, in particular mental health care services; children being admitted to adult psychiatric wards owing to inadequate availability of mental health care facilities for children and long waiting lists for access to mental health support and insufficient out-of-hours services for children and adolescents with mental health needs, in particular eating disorders; and the lack of a child-focused advocacy and information service for children with mental health difficulties.

The committee recommended that Ireland must enact legislation that explicitly and comprehensively provides for children’s consent to and refusal of medical treatment, and ensure that this legislation is in line with the objectives of the convention and encompass clear recognition of children’s evolving capacities. It also recommended that Ireland undertake measures to improve the capacity and quality of its mental health services for children and adolescents. In doing so, Ireland should prioritise strengthening the capacity of its mental health services for inpatient treatment, out-of-hours facilities and facilities for treating eating disorders. It also recommended that Ireland consider establishing a mental health advocacy and information service that is specifically for children, and accordingly accessible and child friendly.

The Mental Health Commission is of the view that while improving the capacity and delivery of mental health services is appropriately placed in revised national mental health policy, it is clear that an opportunity is presented in the drafting of revised mental health legislation to incorporate the points raised by the commission. The commission notes that the Title introducing the Mental Health (Amendment) Bill 2016 states: “Bill entitled an Act to provide that all children must be admitted to child appropriate inpatient psychiatric units and providing that no child shall be admitted to an adult psychiatric inpatient unit (voluntarily or involuntarily) save in exceptional circumstances where such admission is in the child’s best interests.”

The commission welcomes the policy intent of the Bill as it places in primary legislation the commission’s view as specified in the code of practice relating to the admission of children that was issued pursuant to section 33(3)(e) of the 2001 Act in 2009. Section 2.5 of the aforementioned code of practice specifies provisions that should be in place if approved centres for adults are used of necessity in exceptional circumstances. It is suggested that provisions akin to those specified in the code should be considered for elevation to primary legislation.

Sections 4.3 to 4.7 of the commission's submission are technical in nature and I will not detain the committee with those at this time. I will now pass over to my colleague, Dr. Finnerty.