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

It is no coincidence I am here in the Seanad on World Mental Health Day because, since I have become Minister of State, I have found the unstinting value and focus that the Seanad continues to put on mental health helpful. It has played a part in maintaining political focus and moving mental health centre stage in the political debate.As a result of what happened yesterday, we can now claim - with some justification - that mental health is no longer the Cinderella of the health service when it comes to funding. We have passed the €1 billion mark in funding for mental health. A few short years ago, the amount of money we were spending on mental health was €700 million. In the interim, that amount has doubled. There is no other sector of Government spending that has seen that percentage increase or focus. I accept that it was coming from a very low base and that it needed to be done. This House has played a crucial part in keeping mental health centre stage and ensuring that its importance was never lost.

I welcome the opportunity to be in the Seanad yet again to address mental health and the Private Members' Bill in the name of Senator Devine, which is co-signed by many of her colleagues. I acknowledge the presence and contribution of many others, including Grace McManus, who is in the Gallery. I understand she is part of Senator Devine's backroom team and was instrumental in the production of the Bill. Often those in the background who do much of the work do not get the gratitude and recognition they deserve. I thank Grace on my behalf and on behalf of those who will benefit from the Bill when it is enacted by the Houses.

I had a conversation with Senator Devine earlier and I told her I am happy to facilitate her in any way I can in order to try to progress this Bill. A lot is outside my control but if I and my officials can be of assistance we will not stand in the way of the Bill making speedy progress through both Houses. We will do our bit and I will make myself available at every opportunity to assist with that. Scheduling is outside my control in some instances so I cannot give a guarantee in that regard. I am pleased to confirm that the Government is happy to support the Bill and agrees with it in principle. There are a few minor textual amendments on which we will work with the Senator during the passage of the Bill. The amendments are technical in nature. The principle of the Bill is supported by the Government, which welcomes the focus that is brought to the issue.

As Senators will be aware, it has been a busy time in 2018 for mental health legislation. In May, Second Stage of the Mental Health Parity Bill 2017, as introduced by Deputy Browne, was taken in the Dáil. Shortly after that, in early July the Mental Health (Amendment) Act 2018, also introduced by Deputy Browne, was enacted by the Oireachtas. Immediately after, Senator Freeman's Mental Health (Amendment) Bill 2016 passed all Stages in the Seanad and the next step for that Bill will be to go before the Dáil. Senators will recall that last month we discussed the Mental Health (Renewal Orders) Bill 2018. They will be pleased to hear that this legislation was signed by the President last week and it commenced on Monday last. This legislation was urgently required following a finding of unconstitutionality of section 15(3) of the 2001 Act. Once again, I thank Senators for their co-operation in passing that important and time-sensitive legislation.

We are discussing Senator Devine's Mental Health (Capacity to Consent to Treatment) Bill 2018, the principal aim of which is to ensure that a child of 16 or 17 years can consent to any mental health treatment without the need to obtain the consent of his or her parents or guardian. The Bill recognises the growing emphasis to acknowledge that while legislation provides that a child is someone under the age of 18, nonetheless there needs to be recognition of the fact that a child of 16 or 17 years can be in a position to make their own decisions where healthcare is concerned. In this regard, it is already the case that a child of 16 or 17 years 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. The section also covers any procedure undertaken for the purposes of diagnosis and any procedure, such as administration of anaesthetic, which is ancillary to treatment. As pointed out in the expert group review of the Mental Health Act 2001, however, there has long been uncertainty as to how this Act interacts with the provisions of the 2001 Act. In other words, it is not clear that a child of 16 or 17 years can consent to mental health treatment under this section. It is for this reason that the expert group review recommended that whatever legislative clarity is required should be introduced to ensure that there should be no difference for a child of 16 or 17 years agreeing to treatment, whether that is for surgical, medical or mental health purposes. This is also a recommendation of the youth mental health task force which reported last year and it is this gap that Senator Devine seeks to address in her Bill.

The expert group review recognised that modern international human rights standards promote the view that a child's wishes should be taken into account in making decisions about their healthcare needs and, as the child grows towards maturity, be afforded more weight. Such an approach involves putting the interests and well-being of the child at the centre of all decisions and ensuring that the child's own voice is heard and respected as far as possible. This is a principle recognised and provided for in the recently enacted Mental Health (Amendment) Act 2018. This Act, which has not yet commenced, nonetheless provides that in making a decision under the 2001 Act concerning the care or treatment of a child, due regard shall be given to a number of guiding principles in the case of a child who is capable of forming his or her own views. One of these principles is to consult, where practicable, the child at each stage of diagnosis and treatment and give due weight to the child's views and will or preferences, while also having regard to the age and maturity of that child. This is an important new feature of the 2001 Act but it is a principle not an absolute right and it does not differentiate between those aged 16 or 17, on the one hand, and those under 16, on the other.

While the Senator's Bill only seeks to amend the Mental Health Act 2001, it may be that an amendment to section 23 of the Non-Fatal Offences Against the Person Act 1997 will also be required to effect the proposed change. In addition, as currently drafted, the Bill proposes to add a new section 25A to the 2001 Act to allow a child of 16 or 17 years the right to consent to his or her treatment. It must be remembered that the majority of children requiring inpatient treatment for a mental illness or a mental disorder are admitted on a voluntary basis at the request of their parents or guardian. The change proposed by Senator Devine relates to voluntary admission but Part II of the 2001 Act, which would now include the new section 25A, only covers involuntary admission. It is likely, therefore, that adding a new section 25A is not the right place in the legislation for this provision.

It will be important to examine how this legislation interacts with the new guiding principles relating to giving due weight to a child's views which are included in the new section 4A of the 2001 Act as inserted by the Mental Health (Amendment) Act 2018. It may be that the guiding principles need to be tweaked to take account of the new right included in the Bill. In such circumstances, I will, prior to Committee Stage, refer the Bill to my officials for a fuller examination of the current text. It will also be important to refer the Bill for legal advice and to the Mental Health Commission which has obvious expertise in interpreting the 2001 Act. I will, of course, be happy to work very closely with Senator Devine and others on the changes that will be required on this Bill as we are all agreed on the principle of it.

There are two other important points to bear in mind in considering the text of the Bill. The first relates to the legal position regarding refusal of treatment or social care by a child of 16 or 17 years, which is unclear. While it may be argued that consent and refusal are opposite sides of the same coin, I am informed that courts in other jurisdictions have held that there is a clear practical distinction to be made between consent to and refusal of medical treatment. Second, 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 child of 16 or 17 years, may not be competent to give such consent. The current text of the Bill may need to be tweaked a little further in relation to one or both of these issues.

I will briefly mention the ongoing work of my Department on the review of the 2001 Act, which will see the recommendations of the expert group review set out in a comprehensive mental health (amendment) Bill. Oireachtas Members have continually urged my Department to progress that as soon as possible, and some have said there would be no need for Private Members' Bills if that comprehensive Bill was before the Oireachtas. While that is true to a point, as I mentioned earlier, the work required by my Department on the various mental health Bills clearly impacts on the Department's ability to simultaneously progress the comprehensive Bill. For example, last week we finalised the Mental Health (Renewal Orders) Bill 2018 and that legislation commenced on Monday. That was a significant body of work at official level which had very fixed time pressures and serious consequences if not enacted in time. It is a fact, however, that before the focus could return to the comprehensive Bill, this Private Members' Bill has to be dealt with as a priority. We must all accept that there is something of a catch-22 situation here which is not easily resolved.

I wish to speak briefly about child and adolescent mental health services. A priority for the Government is ensuring appropriate and accessible mental health services for children that need them, especially for those in emergency situations. Notwithstanding competing priorities overall, we have provided significant additional funding for mental health in recent years to the extent that approximately €910 million will be spent this year by the HSE on this key care programme. A significant proportion of this is for those under 18. As Members are aware, I was fortunate to secure a further €55 million for service improvement for 2019 in yesterday's budget. Further to Senator Conway Walsh's statements on front-line services, the amount of money added to the mental health budget for next year is €84 million, €29 million of which is for existing pay demands, but they are front-line services, they are not backroom services.