Jim Daly (Cork South West, Fine Gael) | Oireachtas source

I will work with the Senator in the interim to facilitate the amendments. I want to be clear that the Government welcomes amendments Nos. 1 and 4 which have been tabled by Senator Freeman. These replace the original section 2 of her Bill with revised provisions. While we have concerns about the text, we support the aims of these provisions. As I have already said, Senator Kelleher's amendments Nos. 2 and 3 are very well intentioned and we seek to support them as well, but they seek to amend and add to the original section 2. If we accept Senator Freeman's amendments, Senator Kelleher's amendments cannot be accepted as they seek to amend a section which will now read very differently.

While welcoming the progress made on the Bill as it moves through Committee Stage, I need to inform the House about the difficulties I face with the text and timing of the Bill as Minister of State, which I had ideally intended to address on Report Stage in the Seanad. First, the text of amendment No. 1, which seeks to amend section 4 of the Mental Health Act 2001, and the text of amendment No. 4, which seeks to amend the Long Title of Senator Freeman's Bill, include reference to admission orders. If the Senator intends for both voluntary and involuntary admissions to be covered by the Bill, then the term "admission orders" should not be used as such orders are for involuntary patients only, as set out in section 25 of the 2001 Act. The use of this term alone would result in children who are admitted to an approved centre on a voluntary basis not being subject to the provisions listed in the Senator's amendment. If the Senator's intention is that the proposed provisions should apply to the voluntary admission of children, the text of the provisions would need to be revised to include a specific reference to those who are admitted on a voluntary basis. On the other hand, if the Senator does in fact intend for the amendment to apply only to those who are involuntarily admitted, then the term "admission orders" may still be used, but these new provisions should most likely be in section 25 of the Mental Health Act 2001 rather than section 4 as amendment No. 1 currently proposes.

In addition, the Senator refers to consultant psychiatrists making the admission orders. An admission order to admit a child involuntarily is made by the courts, not a consultant. Furthermore, it is the HSE that makes an application to the court, not a consultant. Amendment No. 1 also refers to a "child inpatient unit". This term is not used in the Mental Health Act 2001 and, therefore, if it is to be introduced in this Bill, the most likely definition of the term would have to be added taking account of due consideration of any such proposals.

Finally, in the list of proposed provisions, the Senator mentions at the proposed section 4(4)(b) that a child's environment should be "suitable having regard to their age and needs", while at the proposed section 4(4)(d) there is mention of the need for "age-appropriate facilities". The distinction between these two subsections is not clear. More clarity on the exact nature of the difference will be needed.

Text changes aside, the other difficulty which constrains me from putting forward considered amendments at this stage is simply the issue of timing. In this regard, Members will be aware that another Bill, the Mental Health (Amendment) Bill 2017, introduced by Deputy James Browne, is due to go to Committee Stage in the Seanad next week on 14 February. That Bill proposes to amend the same section of the Mental Health Act 2001 as Senator Freeman's Bill. Deputy Browne's Bill has already passed through all Stages in the Dáil. My difficulty is that both Bills have or are likely to have provisions relating to child admissions to approved centres. Dealing with two amendment Bills simultaneously is certainly a challenge for me as Minister of State and for my officials. For the purposes of clarity and to avoid confusion, it would be better if the text of one Bill were to be finalised before dealing with the detail of the other.

For example, Deputy Browne's Bill seeks to delete the reference to best interests in section 4 of the Mental Act 2001 and replace it with guiding principles, one of which will likely refer to age-appropriate facilities for child admissions. Deputy Browne's proposals are broadly in line with a recommendation of the expert group review of the Act which was published in 2015. As I mentioned earlier, Senator Freeman's Bill also refers to age-appropriate facilities which could now be changed to guiding principles. Senator Freeman's amendment would also add a new subsection to section 4 of the 2001 Act, but Deputy Browne's Bill will delete the current section 4 of the Act and replace it with entirely new provisions. Where there is such an overlap, there is clear potential for confusion. My priority has to be that any new legislation is appropriate, clear and correctly drafted.

I can confirm that the Government accepts amendments Nos. 1 and 4 in the name of Senator Freeman but, for the reasons I have outlined which I believe Senator Kelleher accepts, the Government cannot accept amendments Nos. 2 and 3 at this stage. I will have Government amendments to propose on Report Stage when I hope there will be greater clarity on the agreed final text of Deputy Browne's Bill. I appreciate that this is confusing and difficult, but these issues are technicalities. We all support the spirit of the Bill. That is what everybody has spoken about. There are, however, technicalities which I have a responsibility to consider when amending primary legislation.