Dr. Niall Muldoon:

I thank the Chair. I am delighted to have been invited before the Joint Sub-Committee on Mental Health to discuss the general scheme of the Mental Health (Amendment) Bill 2021. As members are aware, the Ombudsman for Children's office, OCO, is an independent statutory body, which was established in 2004 under the Ombudsman for Children Act 2002, as amended. The OCO has two core statutory functions, which are, to promote the rights and welfare of children under 18 years of age and to examine and investigate complaints made by or on behalf of children about the administrative actions of public services, public bodies, schools or voluntary hospitals that have, or may have, adversely affected a child.

Promoting the rights and welfare of children experiencing mental health difficulties has been a strategic priority for this office since 2016. As members of the sub-committee may be aware, the OCO has previously expressed serious concerns about the statutory framework provided for under the Mental Health Act 2001 in respect of children, as well as about delays in progressing corresponding legislative reforms in this area. Accordingly, we welcome the publication of the general scheme of the Mental Health (Amendment) Bill 2021.

Following its most recent examination of Ireland’s implementation of its obligations to children under the UN Convention on the Rights of the Child, CRC, the UN Committee on the Rights of the Child recommended in 2016 that Ireland “enact legislation that explicitly and comprehensively provides for children’s consent to and refusal of medical treatment, and ensure that the legislation is in line with the objectives of the convention and encompass clear recognition of the evolving capacities of children”. The committee’s strong expectation that the State will amend the 2001 Act in this regard is evident in the list of issues prior to reporting which the committee published in respect of Ireland, more recently, in November 2020.

The OCO’s assessment of the current general scheme has focused on proposals which concern the admission and treatment of children to approved inpatient facilities, and, as such, on Part 8 of the scheme. In this regard, we support the proposal to include a dedicated part focused on provisions affecting children under 18 years of age. However, in our view, a number of the current proposals under Part 8 do not have sufficient regard to children’s rights and evolving capacities and do not provide adequately for a child-centred, rights-based approach regarding children’s admission to, and treatment in, approved inpatient facilities.

Members of the sub-committee have a copy of the OCO’s observations on Part 8, which we submitted in December 2021. In the remaining time, I would like to highlight a number of issues addressed in our observations. Head 104, section 84 sets out guiding principles that will apply in respect of children. We welcome that these are intended to guide all decisions made in respect of the admission and treatment of children under Part 8 and, as such, that these proposed principles will guide the decisions made by mental health care professionals and the courts. We also welcome the provision made for the best interests of the child to be treated as the primary consideration via head 104, section 84(a). We suggest that consideration should be given to making appropriate provision for the factors that need to inform an assessment and determination of what is in the best interests of the child, taking into account relevant international human rights standards.

While the proposed guiding principles have the potential to promote a more child-centred approach to decisions affecting children under 18 years, we are of the view that the current provisions, including those concerning the views of the child, need to be strengthened. In this regard, we believe that further consideration needs to be given to the relationship between the proposed guiding principles; how the provisions made in relation to the proposed principles can guide their appropriate application in practice; and including additional principles, a number of which we outline in our observations.

We welcome the attention given to strengthening provisions for children’s right to be heard in decisions regarding their admission to, and treatment in, approved inpatient facilities. This includes the provisions made for children aged 16 years and older to be able to consent to their admission, including the presumption that any child aged 16 years or older has capacity to consent to or refuse admission to an approved inpatient facility.

However, we are concerned about provisions made in relation to children under 16 years of age. For instance, we have significant concerns about the proposed scope of “voluntary” admissions in respect of children under 16, whereby the admission of such a child will be deemed “voluntary” on the basis of the consent of the child’s parent or parents or person or persons acting in loco parentis. We are of the view that this fails to give appropriate recognition to the child’s status as a subject of rights and we suggest that serious consideration needs to be given to applying the category of intermediate person to children under 16 years who are admitted on the basis of parental consent.

We welcome that the proposed guiding principles make it standard that children should be cared for and treated in an age-appropriate environment. However, that this provision is accompanied by the clause “in so far as practicable”, and that the scheme permits the admission of children to adult inpatient facilities, is a symptom of a systemic failure on the part of the State. That failure has been maintained over many years and means that, 15 years after Vision for Change, we still do not have sufficient appropriate child and adolescent mental health services and supports available. I ask that the sub-committee is strong and ambitious about this issue and that it seek to prevent all admissions of children under 18 years to adult inpatient units.

The OCO is among a range of stakeholders that have highlighted the need for children and young people with mental health difficulties to have access to independent, specialised advocacy services. We welcome the provisions under the general scheme for children admitted as voluntary, intermediate or involuntary persons to be entitled to engage an advocate, either by themselves or with their parent or parents or person or persons acting in loco parentis. In this regard, we are of the view that appropriate advocacy services need to be made available to all children who wish to avail of them, irrespective of means, and that children should be supported to access such services.

We also welcome the provision under head 117, section 97(1), that in every case brought to the court under Part 8, a legal representative must be appointed to the child. As regards the appointment of a guardian ad litem, section 97(3) provides for the court to also appoint a guardian ad litemfor the child "unless it is not in the best interests of the child". While the circumstances in which it might not be in the best interests of a child to appoint a guardian ad litemare unclear, we are strongly of the view that there should be a presumption in favour of appointing a guardian ad litem.

The proposals set out in the 2021 general scheme in respect of children present a significant opportunity to legislate for a child rights-based approach to decision making in respect of children who may require inpatient care and treatment for their mental health. It is crucial that these provisions are fit for purpose.

We thank the committee again for the invitation to this meeting today. My colleagues, Dr. Karen McAuley and Mr. Diego Castillo Goncalves, and I will be happy to take questions.