Dr. Brendan Doody:

In the 2001 Act, children are defined as those aged under 18. Looking at the legislation, this also pertains to inpatient units. The child unit is for those up to the age of 18 and children are defined as those aged under 18. That is not the practice in medical treatment, where it is now moving towards 16. At one stage, the cut-off age for paediatrics was 14. The Mental Treatment Act 1945, if we go back that far, set the age for adulthood at 16. Until the current Mental Health Act, you were an adult from the age of 16. That changed with the enactment of the 2001 Act, under which those aged under 18 were defined as children. The 2001 Act vested that those aged under 18 did not have capacity to consent whatsoever. That was not in line with provisions on consent for medical treatment and other forms of treatment covered under the Non-Fatal Offences Against the Person Act.

Practically, which is to say, from the point of view of the clinical director of an inpatient service, even though the Act states that you can be admitted on the consent of your parents, the views and assent of the young person will be involved. The same point comes up here again, which is that to rely solely on parental consent when admitting a young person is not appropriate. In such a scenario, admission may cause stress in the relationship between the young person and their parents. We have been using the best interests principle, that is to say, the decision is made and children are being admitted as involuntary patients, even where their parents consent to admission, because that is in their best interests. In effecting the admission of a young person who is unco-operative and who does not want to be admitted, any such assistance requires the making of a court order.

Bearing in mind that the Act, as it applies to children, involves a court process, the appointment of a guardian ad litemis very helpful. The guardian ad litemis an independent court officer. That can be very helpful because the young person then has someone who will engage with them and represent their views to the court while also forming an independent opinion or view, which they can then bring back to the court. In doing so, they will meet with the parents and the treating team and participate in planning meetings. They become very integral and are a very important part because we are trying to ensure that the young person receives treatment but not in a way that adversely impacts on relationships within the family.

In one respect, the new Bill brings us back to allowing 16-year-olds and 17-year-olds to consent. Consent is vested and, as a 16-year-old, you can give consent. The amendments to the Act will bring that age to 16. Legally, 16-year-olds and 17-year-olds are most definitely not adults. There was a High Court challenge in respect of section 25 of the Act a number of years ago and the judge talked about the continuing role of parents. In the Act, it seems that families and parents continue to be an important part. Even though there is talk of young people and their consent, parents remain a very important part. The High Court judge pointed to this fact, in a sense, in that particular case. Consent is a very complex area and, of course, the capacity to consent is not the same as the capacity not to consent. Those of us who are child and adolescent psychiatrists feel more comfortable with how this issue has been teased through in these latest amendments to the Act. However, the principles set out in the Act are very helpful.

It is also helpful that the part of the Act that addresses children is to be completely separate. The 2001 Act referred to large sections of the Child Care Act, which allowed us to, for example, undertake nasogastric feeding under restraint, where necessary, through an order under the Mental Health Act. That is a very important step. We can do that with the permission and oversight of the courts. We are very much mindful of ensuring the rights of the child are respected and advocating for those rights.

With regard to an omission in the proposed amendments, the 2001 Act specifically precluded social workers from giving consent for children in care to be admitted. The expert review group did not make any recommendation for that to be removed but it does not appear in the proposed amendments to the Act. It was very important and there was a reason for its inclusion in the 2001 Act, which was to ensure that an agent of the State would not provide consent for children to be placed in inpatient units while they are in the care of the State and that the courts would have oversight because it is important that young people not remain in an inpatient facility if they do not need to be there. In our experience over the years, that provision has been very important safeguard for children who are in the care of the State.