Ms Patricia Gilheaney:

I thank the Senator for her question about consent and children. It is an issue about which the Mental Health Commission is quite concerned and has been for some time, as expressed in its views in respect of the expert group review. As it stands, the majority of children requiring care and treatment from a mental health service will do so on an outpatient basis. When inpatient care is required, the majority of children will receive that care and treatment in the approved centre with the consent of their parents. The legal status of the child is that he or she is a voluntary patient. Under the Act, a child is anyone under the age of 18 unless they have been married. We have the situation where we have a young person up to and including the age of 17 who can be a voluntary patient in an inpatient mental health facility if their parent provides consent. The young person's view as to whether he or she should be there is to some degree irrelevant.

It is the commission's view that there needs to be clarity in this regard. There are provisions under section 23 of the Non-Fatal Offences Against the Person Act, which provide for the consent of a 16 and 17 year old in respect of medical and surgical treatment. However, it is unclear as to whether that is pertinent to mental health care and treatment. Clarity in that regard certainly would be very welcome. It would be protective of the child's interests. Obviously, in respect of children under the age of 16, the commission is strongly of the view that their views should also be heard and taken into consideration in respect of any intervention that would be taken on their behalf.

The second question concerned equivalence of protections for children and adults. A key provision for adults detained under the Mental Health Act 2001 is that they have an automatic right to have an advocate appointed. Under the Act it is a legal advocate. The commission endeavours on receipt of notification of such admissions to ensure an advocate is appointed within two working days. There is no similar provision in section 25 of the Act in respect of children. While under section 25(14) there is a provision for the District Court to take into consideration section 26 of the Child Care Act 1991 for the provision of a guardian ad litem, that is a discretionary power of the court and is not mandatory.

It is the commission's view that the child should have access to an advocate. Particularly in the case of a very young child, a guardian ad litemmight be the most appropriate advocate. For an older child, the appropriate advocate may be a legal representative.