Mary Butler (Waterford, Fianna Fail) | Oireachtas source

I commend Deputies Ward and Mythen on introducing the Bill before us today and on their continuing interest in and their focus on improving our mental health services and legislation. I thank Deputies Brown and Ellis for being here tonight. On Thursday nights we do not see many people here, so I thank them for their interest. I have no problem coming in here at any time to discuss mental health and I appreciate that they have stayed here tonight to discuss it and the constructive way in which they have addressed this.

I am happy to be here discussing the Mental Health (Capacity to Consent to Treatment) Bill 2021. The principal aim is to ensure that a child of 16 or 17 years of age can consent to any mental health treatment without the need to obtain the consent of his or her parents or guardians. We are all 100% in agreement on that. That needs to happen.

At the outset, I would like to say that the Government supports the aims of the Bill wholeheartedly and has declared its intent to make such a change in the general scheme to amend the Mental Health Act published in July last year, which is the basis for the mental health Bill. That Bill is currently being drafted and will be included in priority legislation in the next session after Christmas. The Bill is already well in progress. It is a very large Bill with more than 120 heads. Much of the drafting is already complete. I believe the general scheme of the Bill I will bring forward in January, for which I hope to have Members' support, will address this matter in a more comprehensive way.

Based on a number of issues with this Bill, as drafted, which I will presently discuss, the Government is opposing it. I agree completely with what the Deputies are trying to achieve. We have so much work done on it in regard to in the new Bill that is coming forward, so that is the reason.

The amendments proposed in this Bill should be addressed as part of the wider, comprehensive reforms of the Mental Health Act, as set out in the general scheme, which will be the basis for the new mental health Bill. The Deputies' Bill recognises that while legislation provides that a child is someone under the age of 18, there needs to be recognition in legislation of the fact that a young person of 16 or 17 years of age should be presumed to be able to make his or her own decisions where his or her mental health care is concerned. In this regard it is already the case that a child of 16 or 17 years of age has the right to consent to any surgical, medical or dental treatment. This provision is contained in section 23 of the Non-Fatal Offences Against the Person Act 1997. That section also covers any procedure undertaken for the purposes of diagnosis and any procedure, such as administration of anaesthetic, which is ancillary to treatment.

However, as the expert group review of the Mental Health Act 2001 pointed out, there has been ongoing uncertainty as to how the 1997 Act interacts with the provisions of the 2001 Act. In other words, it is not clear whether a young person of 16 or 17 years of age can consent to his or her mental health treatment under section 23. The expert group recommended that legislative clarity be provided for to ensure that there will be no difference for a young person of 16 or 17 years, who should be able to consent to mental health treatment on the same basis as physical health treatment. This is also a recommendation of the youth mental health task force, which reported in 2017, and it is this gap that Deputies Ward and Mythen and their colleagues seek to address in the Bill.

We all recognise the importance of modernising our mental health legislation and ensuring our approach to young people and capacity is in line with evolving international human rights standards. The findings of the expert group and the youth mental health task force serve to underline the importance of this work. In all cases the best interests of the child or young person should be of paramount importance, so too in all cases must the views and will and preferences of the child or young person be taken into account whenever a decision is being made about him or her. It is generally accepted that the evolving capacity of young people means that, when a young person reaches the age of 16, he or she should automatically be presumed to have the capacity to make decisions about his or her own care and treatment. This is the principal aim of this Bill and it is also one of the principal aims of the mental health Bill.

I would now like to take some time to discuss the specifics of the Bill before the Dáil today, the aim of which I fully support. The Bill, as written, does not provide for an amendment to section 23 of the Non-Fatal Offences Against the Person Act 1997. It is not clear from the amendments proposed in section 3 of the Bill whether young people will be able to consent to mental health treatment outside of treatment provided in an approved centre or treatment provided by a healthcare professional other than a consultant psychiatrist. It would not be desirable for a situation to arise where a young person can consent only to certain kinds of mental health treatment or only in specific settings. The general scheme to amend the Mental Health Act 2001 includes a specific provision to amend section 23 of the Non-Fatal Offences Act to specifically include mental health treatment. This will ensure that young people can consent to mental health treatment on the same basis as physical health treatment.

The Bill starts from a position that presumes that all young people over 16 years of age have the capacity to consent to treatment. However, the Bill does not include a mechanism for healthcare professionals who have reasonable doubts as to the capacity of the young person to carry out a capacity assessment. The issue of capacity to give a valid consent may arise in any given case. Just as an adult may not be competent to give a valid consent, a young person of 16 or 17 years may not be competent either to give that consent. This may give rise to a situation where a young person who lacks capacity to make decisions about himself or herself cannot be treated when he or she refuses to consent, and where it is not possible to get parental consent. That is one area we would be concerned about.

As the Deputies will be aware, the Assisted Decision-Making (Capacity) Act 2015 and its amending Bill currently being progressed through the Oireachtas do not apply to individuals under 18 years of age, so it would not be possible to rely on the provisions of that Act to assess the capacity of 16- and 17-year-olds. To address this issue the mental health Bill will include provisions to task the Mental Health Commission with introducing a code of practice in regard to capacity assessments for young people akin to the assessments and supports available to adults under the Assisted Decision-Making Act. The Bill before us to today does not remove any provisions in the existing Mental Health Act and continues to make reference to consent granted by a parent or guardian. Clarity is needed on how the existing provisions of the Act would interact with the amendments in this Bill, particularly where consent is concerned. For example, what would happen in a situation where a child refuses but a parent consents, or vice versa? It would require very careful consideration to ensure the intent of the Bill is retained where the existing provisions of the Act remain in place.

The presumption of capacity for young people aged 16- and 17-years of age to consent to mental health treatment is a priority for the Government and is set out in the programme for Government. As I said, it is included in priority legislation for the next legislative session. We are all in agreement as to the importance of ensuring that 16- and 17-year-olds can consent to mental health treatment on the same basis as physical health. We are all in total agreement on that point.

I would like to take the opportunity to set out briefly the ongoing work of my Department on the now concluded review of the 2001 Act and the development of a mental health Bill, which will address the issues raised in this Bill, and will be based on the published general scheme of a Bill to amend the Mental Health Act 2001.

There are numerous general changes in the Bill that will positively affect children, such as the revision of the criteria for detention to ensure treatment forms the basis for all cases of involuntary detention, and the expansion of the Mental Health Commission's regulatory powers to regulate all mental health residential facilities - that is not there currently - beyond approved centres and eventually all community mental services. However, today I would like to focus on the changes proposed in the general scheme that are specific to children and young people.

The mental health Bill will introduce a set of guiding principles for children adapted from the principles recommended by the expert group and from those contained in the Mental Health (Amendment) Act 2018. These guiding principles will retain the best interests principle as the primary consideration in the care and treatment of children, as is obligated by our commitments under the UN Convention on the Rights of the Child. Similar to the Bill before us today, the guiding principles will provide for the presumption of capacity for all young people over 16 years of age and for young people aged under 16 years to ensure their views, will and preferences are considered when making a decision about their care and treatment.

In line with empowering young people to make their own decisions, the Bill will provide for an amendment to the Non-Fatal Offences Against the Person Act 1997 to state explicitly that young people aged 16 and 17 should be able to consent to treatment for mental health on the exact same basis as physical health.

The Bill will provide for an overhauled approach to admission of young people to approved centres, particularly in cases when a young person over the age of 16 lacks the capacity necessary to consent to their own admission on a voluntary basis. In such cases, the young person will be able to be admitted with the consent of his or her parent or guardian, but would be admitted on an intermediate basis, where his or her continued admission and treatment would be reviewed by the District Court after a period of time if the young person is still not able to consent.

The intention of the Department is that the same principles that apply to capacity in relation to adults would generally apply to young people aged 16 and 17, even if the process is different. To address this issue, the Department has provided for the Mental Health Commission, which is also the home of the Decision Support Service, to make codes of practice in relation to capacity and its assessment.

The revised approach to admission, which takes into account the capacity of each young person and respects the importance of consent, is also mirrored in the revised approach to treatment. The Bill will provide for all young people over 16 years of age to consent to or refuse treatment. When a young person has been deemed to lack capacity to make decisions, safeguards will be in place to ensure treatment can be given with parental consent or by application to the court. The Bill will also introduce additional safeguards for children and young people, including: access to information for all children and young people detailing their rights; information on their admission and treatment and other relevant information in a form young people can understand; the very important introduction of an individual care plan for all children and young people receiving care in an approved centre; and the introduction of defined powers for An Garda Síochána in relation to children, emphasising the need to protect the rights of the child or young person.

A priority for this Government is ensuring appropriate and accessible mental health services for children who need them, especially those in emergency situations. I would like to speak briefly about some of our services. In this year's budget, I managed to secure significant additional funding for our mental health services, notwithstanding competing priorities overall, and a record allocation of €1.2 billion has been provided for mental health services in 2023. Mental health services for children and young people are one of my key priorities - I know they are the Deputies' as well - and they are prioritised within the mental health budget. Examples of service initiatives under budget 2023 for mental health include: reducing the waiting lists for child and adolescent mental health services, CAMHS, and primary care psychology; implementation of the Maskey report on CAMHS, of which 16 of the 35 recommendations have already been implemented; new accommodation for mental health teams; progressing clinical programmes, such as eating disorders, adult attention deficit hyperactivity disorder, ADHD, and self-harm; developing out-of-hours supports and crisis resolution teams; funding to open the new central mental hospital at Portrane; €750,000 to commence a new initiative to fund counselling psychology trainees; additional funding for the Traveller health plan and implementation of the mental health actions of the plan; and additional suicide crisis assessment nurses, known as SCANs, to improve early intervention and crisis support in primary care settings to ease pressure on emergency departments and waiting lists.

Last month I was also pleased to announce a new role to support my continued focus on youth mental health, namely, a youth mental health lead at assistant national director level within the HSE. This is a dedicated new post that will act as a focus for youth mental health within the HSE, as well as a liaison across education, youth, justice and with Tusla. Funding for this post is included in this year's budget and recruitment is due to commence immediately.

I am satisfied that the HSE is working to provide the best possible service within available staffing resources and it has my full support in this regard. I would also like to take the opportunity, once again, to thank Deputies Mythen and Ward and all of the members of the Sub-Committee on Mental Health, particularly Senator Frances Black in her role as Chair, and the committee secretariat for the extensive work they put into the pre-legislative scrutiny report on the general scheme. Many hours have gone into it. The report and its recommendations will be closely considered in the final Bill.

In concluding, I again thank Deputies Mythen, Ellis and Browne for being here tonight and introducing the Bill. Notwithstanding my opposition to this Bill proposed, we are in agreement that the principle of the changes being proposed needs to be made and I am certain that this can be achieved in the mental health Bill as part of the suite of changes planned in the Bill to bring a person-centred, human rights-based approach to our mental health legislation.

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