Johnny Mythen (Wexford, Sinn Fein)
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I move: "That the Bill be now read a Second Time."

I thank the Minister of State, Deputy Butler, for attending this debate. I hope we can all agree with the intention behind this Bill, which attempts to progress an issue on which work is long overdue. The aim of the Bill is to amend the Mental Health Act 2001 to provide a right for minors over the age of 16 to consent to mental health treatment and to provide for related matters. We simply want to give 16- and 17-year-olds the same legal right to consent to mental health treatment that they have to consent to physical health and dental treatment. The Bill aims to rectify this disparity in law.

This change has been recommended by many, including the Law Reform Commission, the HSE, the report of the expert group on the review of the Mental Health Act 2001 and others. As the Minister of State is aware, the Oireachtas committee's report on its pre-legislative scrutiny of the draft heads of Bill to amend the 2001 Act also includes a recommendation on this issue. There appears to be real cross-party agreement on this but we need the change to be a priority. We in Sinn Féin understand the urgency of this change, which is included in the programme in the Government. We are willing to work with Members on all sides of the House and to take on board any suggestions to strengthen the Bill.

This is a progressive mental health Bill that acknowledges and supports our young people and will bring much-needed reform to the capacity and quality of youth mental health services. In general, parity between the treatment of mental health and physical health is something we all must aim to achieve. In my county of Wexford, the latest figures I have received show there are 19 young people waiting more than a year for mental health treatment. The only out-of-hours mental health care for children and adolescents is provided through an acute hospital setting. Mental health issues do not go away at 5 p.m. on a Friday and they cannot be put on a waiting list. We have a long way to go yet in providing the quality of services our children and young people need and deserve.

This legislation is also about destigmatising mental health treatment. It recognises that mental health issues should be treated like any other health issue. By working together, we are showing the Oireachtas is a place in which issues around mental health and mental health conditions can be discussed from a position of empathy and care. It is important to clarify that the Bill does not take away any protections from vulnerable young people. Capacity legislation provides protections for vulnerable adults and those protections should also apply to 16- and 17-year-olds.

The Bill goes a long way to protect one of the most fundamental principles of any civilisation, which is the right for people to be who they are. By ensuring the freedom to consent to or refuse treatment, we can play a role in tackling the many facets of so-called conversion therapy. For too long, the criminalisation of sexual orientation and the associated exclusion of individuals existed in our country. As a State, we have a responsibility to our citizens and especially our young people, whose protection must be a priority. It is shameful that conversion therapy is still legal in this country. One can only imagine what it must be like to have therapy used, emotionally or physically, to cure or repair a person's sexuality. This is debased and sordid and it must be challenged and confronted in the strongest possible terms.

We must recognise and acknowledge that the Irish people have come a long way in their progressive thinking and their desire for equality in the way we live our daily lives. The result of the referendum on same-sex marriage was testament to that. In this Bill, we, as legislators, have an opportunity to bring about what I believe is the will of the people, which is to protect young people from the harms of conversion therapy until it is banned in law once and for all. The Bill provides an opportunity to bring ourselves into line with the principles of Article 12 of the UN Convention on the Rights of the Child, which concerns the right to be heard. We cannot in all conscience shy away from what needs to be done and what should have been done a long time ago.

I thank my colleague Deputy Ward for his outstanding work on this Bill, Senator Warfield for his work on the Prohibition of Conversion Therapies Bill 2018, former Senator Máire Devine, who campaigned on this issue for years, and all of those who have contributed to the debate. I hope the Minister of State and Members will accept what we are trying to do in this Bill and will work with us to progress it through the House. To do so would be the essence of a good republic. As Thomas Jefferson once said: "The care of human life and happiness ... is the first and only legitimate object of good government."

Dessie Ellis (Dublin North West, Sinn Fein)
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I welcome this Bill, which amends the Mental Health Act 2001 to provide for the right of minors over the age of 16 to consent to mental health treatment. It corrects the anomaly whereby minors aged 16 and over have the right to consent to treatment in general healthcare but do not have similar rights in consenting to mental health treatment. The Bill brought forward by my colleagues, Deputies Ward and Mythen, will ensure a minor aged over 16 will be recognised before the law and will be able to make informed decisions about his or her mental health treatment. The existing difference in approach is clearly discriminatory in that it views those with mental health issues as being somehow incapable of making informed decisions. This approach only adds to the stigma many feel around mental health and to their feeling of exclusion in society.

Accepting that minors over the age of 16 are perfectly capable of making decisions about their mental health treatment, as this Bill aims to do, will help to change the misconceptions and barriers that can arise as a result of a lack of understanding by others of those with mental health issues. It will also help to change the way people judge those who have such issues. Young people with mental health difficulties can articulate their own vision of the services they need. They are increasingly able to make informed decisions about their treatment and other matters in their daily lives. There is no doubt that the needs of people with mental health disorders could be better understood and their rights better protected. This Bill addresses one such situation. Young people should be able to play an active part in the process, including the planning, development, monitoring and evaluation of their treatment. The Bill will change the existing legal position whereby it is not the minor aged 16 or older but his or her parents with whom the right exists to consent to inpatient mental health care and treatment for that minor. This welcome change can only have a positive impact on the well-being and mental health of those young people. It will give them more confidence and will be important for their self-esteem.

Martin Browne (Tipperary, Sinn Fein)
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I thank the Minister of State, Deputy Butler, for being here to take the Bill. Too often, Ministers are not in attendance for debates. I thank Deputies Ward and Mythen for introducing the Bill and former Senator Máire Devine for the work she did on it during her time in the Seanad. Its purpose is to introduce a level of parity between the ability of young people aged 16 and 17 to consent to mental health treatment and their existing ability to consent to treatment for their physical health.

For too long in this country, mental health has been seen as something that is secondary to physical health. The result of this kind of attitude is a level of service that is insufficient and not readily available in our communities when it is needed. It has led to a service that has ultimately left many people to fend for themselves when all they need is support and treatment. The aspect we are discussing today concerns enabling young people of 16 and 17 to consent to appropriate treatment. It makes total sense. I know many people of that age who are active campaigners for appropriate mental health services for their age group. Unfortunately, many of them have been at the coalface of insufficient services or been in scenarios in which they were the ones who needed the treatment but found they were spoken over rather than spoken to.

One such campaigner in my constituency, Charlotte, has brought to my attention the issues she faced when seeking support and treatment. While I am aware this Bill cannot address all the deficiencies within our mental health services, I want to give voice to her concerns and experiences.

At times she did not feel listened to or treated as appropriate for her age. She and the young people she speaks to want to see a mental health service that adapts to the type of patients that present. Then there is the manner of how a person in a crisis situation is supposed to present in an emergency department. At Tipperary University Hospital there was meant to be a room solely for the purpose of people presenting with a mental health issue but nobody I have spoken to has ever been in that room. There is no liaison psychiatrist for children in my HSE region. It is hard to imagine, but there is none. These are just some of the issues that young people are campaigning on. I commend them on that and will continue to support them in their efforts.

When introducing this Bill in 2021, Deputy Mythen noted that it was meant to be about the rights and protection of young people, the right to be heard and how this needed to be expressly stated through legislation. He said that this was what this Bill would do. This Bill may help to lay the groundwork for more focused effort being made to tailor services to properly take account of young people's needs and, just as importantly, their insights. It is time young people aged 16 and 17 have autonomy to consent to and avail of appropriate mental health treatment while not taking away any existing protections for vulnerable young people. Young people have plenty of insights to give into how the system should work. It would be hard to say that they should not have the capacity to consent or otherwise. I commend my colleagues on introducing this Bill and thank all who worked on it so far.

Mary Butler (Waterford, Fianna Fail)
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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.

Bernard Durkan (Kildare North, Fine Gael)
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The Minister of State has a further five minutes. Before I call on Deputy Mythen to reply, she can continue for another couple of minutes if she wishes and is entitled to do so as it is provided for.

Mary Butler (Waterford, Fianna Fail)
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I would like to defer to Deputy Mythen.

Johnny Mythen (Wexford, Sinn Fein)
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I thank the Minister of State. We are a little bit disappointed that the Bill is not being supported. However, we also recognise that it is not about who brings forward the Bill, rather, it is about consent and the right of consent of people aged 16 and 17. That is what it is about. We will work together on this. I am glad the Minister of State accepted the principle that we put forward.

We look forward to the Bill in the next session, with Christmas being so close. As I said, it is more than overdue. We can all tell tales about what happened to people in our own areas. This is an important issue for us.

As I said, we are glad that the legislation is coming through. We accept the Minister of State’s observations, which are valid. However, as I said at the very start, it does not matter who brings forward the Bill, once it is passed.

I thank my colleagues, Deputies Ellis and Browne, for being here and, of course, all of the other people who were involved in the background. It was a lot of hard work. I understand that it is a very difficult and an extremely complex issue. It is an issue that involves parents, guardians and so forth. It is important that we all work together on this. We see the damage this can do. I have seen the damage it has done in my community, where people do not have the right to choose and sometimes are forced into doing things they should not be doing. We see that they wind up in all sorts of trouble.

I thank the Minister of State. We look forward to working with her on the Bill. If we can be of any help at all, that is what we are here for.

Mary Butler (Waterford, Fianna Fail)
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I again thank the Deputy. We are completely in agreement with the principles he established here tonight. I thank my official, James Kelly, who has been working non-stop on this Bill for the past two years. There are 120 heads. It is complicated and much legal advice had to be sought. As I said, it is at the drafting stage and it will be priority legislation. I look forward to the Deputies' co-operation. I thank the Members for the good work that was done in the pre-legislative scrutiny stage as well.

Obviously, we all want this mental health Bill to be the best it can possibly be to support people who have mental illness. There is not a family in Ireland that has not been touched with mental illness. Having the conversation tonight was important. The more we talk about mental health, the more it lessens the stigma. I thank the Deputies and the Acting Chairman for their time.

Bernard Durkan (Kildare North, Fine Gael)
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In accordance with Standing Order 80(2), the division is postponed until the weekly division time in two weeks.