Dr. Karen McAuley:

In terms of what is provided under the general scheme, in a practice sense what one would like to think is that where a child refuses, one would, in the first instance, seek to understand what the reasons are and see whether they can be addressed. I will talk in hypothetical terms. Allowing that there are only four State-funded inpatient units in the country, a child may have to move quite far away from his or her family, community and friends and the child may be concerned about that. A child could be frightened about the prospect of being admitted to an inpatient facility if he or she has not been in one before. There could be lots of reasons a child might refuse which could, potentially, be addressed professionally through consultation and seeking to alleviate concerns.

In terms of the legislation, members will know that one of the guiding principles, which is set out under head 104, is about the best interests of the child being treated as the primary consideration. From a children's rights point of view, the way that is supposed to operate is that when assessing and making a decision about what is in the best interests of the child, one seeks to hear the views of the child on whatever decision one is trying to make, for example, the admission of a child to an inpatient facility, and give due weight to his or her views. That is not the same thing as the child determining the decision. If someone is trying to figure out what is in the best interests of this child, he or she must seek to hear what the child's views, wishes and preferences are, understand them and take them into account. However, when someone is charged with making a decision that is in the best interests of the child and that is the primary thing he or she must think about, that is going to guide the decision-making. The guiding principles allow for that.

I apologise for going a little off the point in answering the question but I will mention two important points, one of which we have flagged. From the way the legislation is written right now, allowing that this is a general scheme and not the actual wording of the Bill, it is not clear how these principles are going to interact. The text sets out a list of principles but does not say how they relate to one another. Further attention needs to be given to that. For example, there is nothing to suggest what I have just talked about, which is critical from a children's rights point, namely, that when assessing what is in a child's best interests, hearing the child's views is a pivotal part of that. There is nothing in the principles to suggest that, however. That is one of the reasons we have suggested that it would be worthwhile considering including in the Bill a provision setting out what are the factors that a decision maker, whether it is a health professional or a court, needs to consider when making a determination about what is in the best interests of the child. We have that already in Irish law and we referenced it under the Guardianship of Infants Act and the Adoption Act. There are clear factors that are laid out, a list of things that one must think about when deciding what is in the best interests of the child. It would be very helpful for decision makers to have an equivalent and appropriate list provided for under this legislation.