Seanad debates

Wednesday, 10 October 2018

Mental Health (Capacity To Consent To Treatment) Bill 2018: Second Stage

 

10:30 am

Photo of Maire DevineMaire Devine (Sinn Fein)
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I move: "That the Bill be now read a Second Time."

I ask the Senators for ciúnas; this is really important. I cannot think of a more fitting day to bring this legislation before the House than today. Not only is it World Mental Health Day, but the theme this year is young people and mental health in a changing world. I am sure that throughout the debate this evening we will see that we, as legislators, must react to the changing world of our youth. This Bill certainly does that. This is my first opportunity to lay a Bill before this House. It is also fitting that this is a progressive mental health Bill that acknowledges and supports our youth.

This work began more than a year ago during a meeting with a representative of St. Patrick's Mental Health Services and the youth advisory panel, representatives of which are in the Gallery today. Fair dues to them. I thank them their tireless work, including their raising of this issue of an anomaly in Irish law around the age of consent for mental health treatment, and for sharing it with us. After conducting much research, it appears that under Irish law adolescents aged 16 and 17 years can currently consent to physical and dental health treatment but do not have the explicit right to consent to mental health treatment. We should look back a couple of weeks to the recent findings and ruling in the High Court which stated that the involuntary detention of patients without regular recourse to a mental health tribunal was unlawful. We should take that as a caution to us all here that the division of health and dental health consent and mental health consent could well be found to be unlawful if tested. Let us just amend the Act rather than wait for that to happen. The problem being addressed has several facets.In section 23 of the Non-Fatal Offences Against the Person Act 1997, persons over the age of 16 can give consent for medical, surgical and dental procedures. The Child Care Act 1991, the Children Act 2001 and the Mental Health Act defines a child as a service user under the age of 18 year, other than a service user who is or has been married.

Section 25 of the Mental Health Act deals the involuntary admission of children. According to the Childrens Mental Health Coalition, a child of 16 years may consent or refuse to consent to medical treatment without parental input as if they were of full age. However, the Mental Health Act 2001 appears to remove this right for children under the age of 18 who have been involuntarily detained. This legislation aims to correct this. There have been several other calls for this legislative change. The recent report by the National Youth Mental Health Task Force called for it by the third quarter of this year. We are making a start in the House tonight in the hope for success and getting it through to Second Stage. The Law Reform Commission recommended this change in 2011, seven years ago. The HSE called for this anomaly to be addressed in its national consent policy. In 2017, the Children Mental Health Coalition stated:

The Act gives little voice to children to have a say in their administration or treatment. Consent is given or withheld by the parent in the case of all children up to the age of 18 years.

The 2015 report of the expert group on the review of the Mental Health Act recommended this problem be addressed without delay.

Young people, 16 to 17 year olds, are mature enough to decide their health needs and treatment, including their mental health needs. This amending legislation acknowledges them as being capable, responsible and giving them ownership over their own health which only improves outcomes. We know this change is needed legislatively.

An important point is to be made about stigma. In my 30 years as a mental health nurse, I know more than most about the persistent damage of stigma around mental health treatment, as well as the trauma of secrecy that stigma imposes. We are breaking those barriers and this legislation will assist with that. I understand there may be some anxieties around 16 and 17 year olds if they are suffering with their mental health and might not have the capacity to consent. It is important to be clear that this Bill does not take away any protections from vulnerable young people. As we know, capacity legislation has protections for vulnerable adults. These protections also apply for 16 and 17 year olds. This Bill further protects young people by recognising the important role of their parents they play in a young person's life. If a young person is detained for mental health treatment and withdraws their consent, and a medical practitioner believes the parents or guardians ought to know, then this Bill allows a provision for him or her to tell them.

This Bill is about destigmatising mental health treatment as something that is alien to any other medical intervention. It is about clarifying legal capacity in terms of 16 to 18-year-olds for the benefit of mental health practitioners. It is about saying to young people that definitively they should have agency and should be respected.

I thank the young people who brought this issue to us and are champions of the cause. They are energetic, know what is good and what is needed to change. I also wish to thank the Oireachtas drafters for their help with the Bill. It was a complex piece to get right and they played a blinder. I hope the House agrees unanimously to allow this to progress to Committee Stage. I must give a special go raibh míle maith agat to Grace McManus, my right-hand woman, who drove me and this Bill forward and ensured I gave it as much attention as it required. I look forward to the Bill passing speedily and that we can implement this change for which our young people have asked.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I welcome this Bill, those who have joined us in the Gallery and those watching elsewhere. I am proud to be a co-signatory to this legislation, particularly given this is World Mental Health Day, a day when the responses to the well-being of our people should be evaluated.

While mental health issues such as anxiety, depression and bipolar disorder know no age, international evidence has demonstrated that mental health issues peak during the adolescent and early adult years. International evidence has also shown that young people carry the burden of mental ill health with mental disorders now the leading cause of disability among young people between the ages of ten and 24 years of age. Closer to home, Ireland currently has the fifth highest rate in the European Union of youth suicide between the ages of 14 to 24.

Our response in terms of child and adolescent mental health services, CAMHS, is at critical levels where we do not meet 43.8% of prescribed whole-time hours set out in A Vision for Change. Our failures in early intervention responses, in particular, will result in a cost ineffective system for years to come and will prolong illness for many. Recognising and treating mental medical conditions early makes as much sense for mental health issues as it does for physical health. However, our CAMHS waiting lists do not allow for early intervention. Early intervention has been shown to have a high success rate for bipolar disorder and anorexia. It has also been shown to benefit young people with schizophrenia, reducing the severity of the illness and leading to better adaptation to the disorder. Early diagnosis of psychosis is vital to the success of specialised treatment packages developed for the individual. On solving mental health problems, the World Health Organization suggests that "early intervention is fundamental to preventing progress to a full-blown disease, in controlling symptoms and improving outcomes."

While this Bill cannot address the resources required to meet our needs towards access of youth mental healthcare, it does allow for a young person's agency towards the treatment that would best suit them and makes early intervention more accessible. As mentioned previously, we allow this same autonomy granted to persons 16 and 17 years of age in cases of physical and dental health, and for good reason. For example, those who soon may wish to avail of abortion services and are deemed intellectually mature and competent for informed consent can do so freely without intervention from their parents. A young person who requires a blood transfusion can do so regardless of parents who may be ideologically opposed to blood transfusions. In stark contrast, if a young person may wish to start on a course of antidepressants, engage in counselling or cognitive behavioural therapy, CBT, they cannot do so without informing their parents as to why and informing them of the illness. Furthermore, a LGBTQI young person cannot gain treatment without potentially having to disclose their identity to their parents. Transgender people aged 16 and 17 require psychiatric assessment prior to accessing either a gender recognition certificate from the State or hormone therapy, none of which can be obtained without parental consent. This can be made even more difficult when the individual may not have tolerant parents.

In Sinn Féin's opinion, this infringes a person's bodily autonomy and contravenes Article 12 of the UN Convention on the Rights of the Child which upholds the rights of children to participate in any decision-making process affecting them. It also diminishes the understanding that our doctors are gatekeepers of recognising any legal capacity to make medical decisions. The Mental Health Act 2001 is flawed and is hindering our responses in a society that is becoming more open, more caring and more responsive to the needs of those who are mentally unwell. The 2015 report has still yet to be fully realised. While I understand the Department is currently preparing legislation to meet these recommendations, the recommendation that forms the objective of my colleague and comrade, Senator Devine's Bill is a no-brainer and should be legislated for with expediency as the disparity between consent and treatment between mental health and physical health infringes on a young person's right.I commend Senator Devine and my friend, Grace McManus, for being champions for positive health and mental health, even long ago when Senator Devine and I were on South Dublin County Council. I urge the Minister to heed the calls of this Bill and of Sinn Féin as well of those in Mental Health Reform, the Children's Mental Health Coalition and the 2015 report.

Photo of Colm BurkeColm Burke (Fine Gael)
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I welcome the Minister of State and thank the Senators for introducing this Bill. As someone who has introduced a number of Private Members' Bills here, I am aware of the time and effort that it takes to get it to draft stage and introduced here. I thank them for the work they have done, which is appropriate as it is World Mental Health Day.

We need to give more time and effort to the issue of young people's mental health. While 16 or 17 year olds can give consent for the treatment they require for their physical health, it is not the same for mental health. It goes back to how we have dealt with mental health through the years, where a mental health problem was treated totally differently. It is only in the last ten or 15 years that we have started to treat mental health in the same way as we deal with other health issues. We still have a lot of work to do in getting across the message that if someone has a mental health problem, he or she should not be afraid to discuss it, whether it is depression or another issue relating to mental health, and to seek help when he or she requires it. This Bill allows the person to get the care and attention that is required. The Minister of State will outline the issues that the Department would have and how further work would have to be done to finalise this legislation but it is welcome.

While we are dealing with mental health and young people, a concern which I had to deal with during July and August is the problem of access to mental health services for young people. A geographical boundary seems to have been erected in the area I come from with regard to access to psychiatric services. I am concerned that when someone retires or resigns from a particular area and someone is not appointed to replace that person immediately, there is then a vacuum. The person who might be assigned to the adjoining geographical area cannot be accessed by the person who requires care. I am sorry for raising this now but it is an issue I have had to deal with. I am not aware of any other area in the health service where access is denied because the healthcare provider is in a different geographical area to the area that the person is living in. That especially relates to young people who require help and assistance at a very early stage. They cannot get on the CAMHS programme because they cannot get an assessment for psychiatric services. I do not think that is the appropriate way to deal with care. Why does it happen with mental health and why do we not have the same set of rules as with physical health? This issue needs reform and I will continue to raise it.

I welcome this Bill. There are some issues in it that need to be dealt with. I have no doubt that the Minister of State will deal with those but we need to make sure that when problems are identified in reports, they are prioritised. The Scally report, which we were dealing with in the Joint Committee on Health this morning, has 50 recommendations and he has agreed to stay with it until the implementation of those recommendations. Likewise, the expert group has made recommendations. I accept that there are pressures in Departments, but when reports are brought forward, they need to prioritise the recommendations made so that we can continue to improve the services.

With regard to young people and mental health, it is extremely important that we prioritise this issue and area and do not leave it for another four or five years until it is dealt with. The recommendations of the Madden report go back to 2008 and part of that report has still to be implemented. Likewise, an expert group brought forward a recommendation in this area. It should not be left on the shelf and should be dealt with. I hope that we can deal with the areas that are not dealt with in the Bill. I thank the proposer, Senator Devine, and the seconder for bringing it forward. I hope that we will see it pass into law in a reasonable period.

Photo of Keith SwanickKeith Swanick (Fianna Fail)
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I welcome the Minister of State. As my colleague, Senator Devine said, today is World Mental Health Day. I commend her for bringing forward this very timely Bill. This year's theme is young people and mental health in a changing world. Half of all mental illness begins by the age of 14. Suicide is the second highest cause of death among 15 to 29 year olds worldwide but most cases go undetected and untreated. When left untreated and without supports, those who are experiencing mental distress can quickly spiral downwards with devastating consequences. Fianna Fáil supports the principle of this Bill which gives 16 and 17 year olds the same legal right to consent to mental health treatment as they have for physical health. The change was recommended by the expert review group on the Mental Health Act 2001 and by the Law Reform Commission in 2011. We understand the Government believes the Bill needs amendments and we may also table some amendments on Committee Stage.

The report of the expert group on the review of the Mental Health Act 2001 highlighted how children of any age can suffer from a mental illness or mental health difficulties but, of course, adolescence is a typical time for the development of such problems, often with long-term implications. Based on the recommendations of the expert group, a child shall be defined as a person under 18, thus bringing it into line with the Children Act 2001. Children aged 16 or 17 should be presumed to have capacity to consent or refuse admission and treatment. For the admission of a 16 or 17 year old to proceed on a voluntary basis, the child must therefore also consent or at least must not object to his or her voluntary admission. When a 16 or 17 year old objects, the case should then be referred to a child-friendly district family court, which can determine whether the child has the necessary maturity or capacity to make an informed decision. The autonomy and self-determination of the child should be respected insofar as is practical, in conjunction with parents or persons as required acting in loco parentis.

Best practice shows that optimal results are obtained when a person is actively involved in his or her own treatment. I feel very strongly about that. As we are all too aware, there is an ongoing requirement for availability of child and adolescent inpatient services and the state of CAMHS is currently abysmal. We have let our young people down very badly so far. Almost 3,000 children and young adults are waiting for the HSE to provide them with an appointment for CAMHS, including a disgraceful 368 young people waiting longer than 12 months.The Government's failure to resource and implement its child and adolescent mental health service adequately will be a stain on its legacy. I have always tried to be pragmatic about CAMHS. The Minister of State is aware that I have spoken about this issue in the House on many occasions. I have always said the introduction of a 24-hour rapid access CAMHS appointment service for very vulnerable children is required, whereby a GP or a mental health professional could pick up the telephone to ensure a patient would be seen within a 24-hour period in a suitable environment if the young child or adolescent was suicidal. It could be provided at minimal cost, would not be abused and could enable people to act very quickly. It would be solution-driven, pragmatic and implementable. It also would prevent the child from ending up in an emergency room, which is what we are trying to avoid.

I welcome the Bill and congratulate Senator Máire Devine. We may table amendments to it on a later Stage.

Photo of Frances BlackFrances Black (Independent)
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May I share my time with my colleague?

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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That is fine.

Photo of Frances BlackFrances Black (Independent)
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I welcome the Minister of State and wish to speak strongly in support of the legislation, the purpose of which has been outlined in detail by colleagues across the House. I would really like to see it being passed on Second Stage and progress to Committee Stage quickly. I was delighted to co-sign and co-sponsor it and commend Senator Máire Devine and her team, especially Ms McManus who is in the Visitors Gallery, for presenting it to the House. I know how hard they have worked on it. It has been well researched and the case for its acceptance is compelling.

As matters stands, there is a disconnect between several Acts on the Statute Book and how they deal with the capacity of 16 and 17 year olds to consent to mental health treatment. Fixing it was a key call of the expert group tasked with reviewing the Mental Health Act which ultimately gives young people little say in their treatment. It is one of the common-sense steps we could take to reform and improve mental health services. I was very pleased to see Mental Health Reform contact Senators this afternoon to offer its full support for the Bill. Lowering the age of consent to receive mental health treatment to 16 years would ensure previous discrepancies would be cleared up. To me, this is part of a much broader and very welcome change in our attitudes towards mental health and young people. We have made great strides in recent years removing the stigma surrounding mental health and our willingness to talk about it. Listening to young people, it is clear that this generation are not the same as previous ones. They are willing to speak about their mental health and seek help when they need it.

Similarly, on our attitudes to young people, progressive steps have been taken in this Chamber and wider civil society to treat them with greater respect, see them as autonomous individuals who are well able to navigate life's decisions and chart their own course. For example, Bills to lower voting age to 16 years have been tabled in the House. That is a positive and democratic step that has been taken in several European countries, including Austria, Estonia, Germany, Greece, Malta and Norway. Such moves seek to recognise the intelligence, capacity and interest of this generation of young people and empower them to participate in public life and wider society. It was in this spirit that I was very happy to co-sign the Bill. We are saying to a generation of 16 and 17 year olds who are more willing more than ever before to speak about their mental health that they have the capacity to make decisions about the care they receive. I commend the Bill to the House.

Photo of Grace O'SullivanGrace O'Sullivan (Green Party)
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I welcome the Minister of State, Deputy Jim Daly. I support this really important legislation which has been brought before the House by Senators Máire Devine and Fintan Warfield and commend Ms McManus for her contribution and research. It is common-sense legislation. As this is World Mental Health Day, it is a really appropriate day on which to see the Bill being passed. The Green Party and my colleagues in the Civil Engagement group are very happy to support it. I am delighted to be a co-signer of it.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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I am definitely going to mention Ms McManus too. The Minister of State is most welcome. I sincerely acknowledge Senator Máire Devine's role in the preparation of this timely Bill and bringing it to us on such a significant and important day. I am, however, one of those who are very firmly of the view that every day should be World Mental Health Day. The legislation seeks to give young people, in the first instance, the capacity and the ability to affirm, assert and engage based on their own needs and judgment on to what they should be entitled, that is, a right to access the treatment they have decided they need. It is not a coincidence that Senator Máire Devine was a psychiatric nurse. It shows how diverse and active Seanad can be in the discourse on political and social issues that on such an appropriate day such an important Bill has been brought before us on Second Stage. As mentioned, Ms McManus had a significant input into its compilation. As well as being Senator Máire Devine's adviser and right-hand woman, as she put it, she is possibly also the psychiatric nurse of those of us in Sinn Féin. She is a great support to us and obviously broader society when she helps to craft legislation such as this.

I will make two brief points, the Acting Chairman will be glad to hear. I am not trying to take away from the positive contributions made thus far, but I wish to make two political points. This is, after all, a political Chamber. First, it looks as though the Bill will be passed on Second Stage tonight. We are voting to give young people the capacity to determine their own needs in seeking access to mental health treatment, care and services, but this will not matter a jot if the necessary and appropriate services are not available to them. We all need to acknowledge, separate from this significant legislation, that we need to work, collectively and collaboratively, to address the broader problems. Not just for young people but for people across the generations, accessing the mental health services they need at an appropriate time and location can be a chronic problem

My colleague, Senator Frances Black, touched on the second point I wish to make. If we vote to pass the Bill on Second Stage tonight, without reference to any amendment that might be tabled on a later Stage, we are acknowledging rightly - this is good - that young people have the capacity to decide their own needs and make responsible and informed judgments on their health and well-being. If we accept this, I do not see why the Government opposes the argument that we should enfranchise young people to vote at the age of 16 and 17 years. I will not digress too much, but I am sure the Senators who have spoken and those who will contribute on later Stages would give young people a bit of béalghrá and plámás them by telling them how valued and important they are. I do not doubt their sincerity on this issue, but when it comes to others, I just wish they would value the input, wherewithal and capacity of young people.

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Sinn Fein)
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I thank my colleagues who drafted this legislation and acknowledge, in particular, Ms Grace McManus, for her work in its drafting. She is a young woman who is committed to dealing with the issue of mental health, on which she is a campaigner. It speaks volumes that she worked with Senators Máire Devine and Fintan Warfield in producing the legislation. It is important for us to acknowledge those who work as advisers and assistants in these buildings.There is sometimes a perception that Deputies and Senators produce legislation, and there is a bit of ego in that, but those of us who know how this place works realise it is the people who work in our teams and have a passion who drive these things forward. I am glad that tonight we are calling out the name of one of those people and giving her the credit she deserves.

I want to tell the Minister a wee story that touches on an area of his responsibility. I knew a family in Donegal and learned this story after the event. The daughter was self-harming on an ongoing basis. The family were deeply alarmed and repeatedly sought psychiatric assistance for the daughter in Donegal and each time each time they could not get it. This happened not long ago. They brought her to Derry city where the health services broke the rules by treating her, and thank God they did because I am not sure that young woman would still be alive today otherwise. She got the help she needed and today she is thriving. She has her degree sorted, has graduated, and is in professional work. That is the reality of the failure for young people.

When organisations like Jigsaw and similar support agencies emerged, we believed we were moving in the right direction but it is clear, when one looks at the waiting lists for CAMHS, that the resources are not being pulled in where they are required.

I needed to tell that story today. I believe the Minister of State is committed to reversing the position but we need more of his senior Government colleagues to support him in that process. All we need to do is table parliamentary questions or talk to those working at the front line of these services to learn about their exasperation at their inability to give the supports they want because of the caseloads they carry.

We fail young people in these Houses. I am being kind when I say "we" because I mean those who have historically been the political establishment in this State. They knew young people did not vote in the same way other cohorts of society voted. There was no political reward for delivering for young people. If that political reward was available, young people would not have to wait the length of time they do for the assistance they need.

Thankfully, the young woman survived the utterly disgraceful failure of the State and her family got through it all, although they had to cross the Border to get help. While she is thriving, I wonder how many young people are in early graves because of our societal failure.

That is why this legislation is important. It is another step in the right direction, not just in giving support services to young people but empowering young people to make decisions for themselves, with professionals, in the event that their family may not be stepping up to do what needs to be done. This important legislation is part of the overall message to young people to reverse the mistakes, ignorance and stupidity of the past. Well done to my colleagues.

Photo of Rose Conway WalshRose Conway Walsh (Sinn Fein)
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I will not repeat what my colleagues have said. I, too, commend Senator Devine and Ms Grace McManus on bringing this legislation forward. We could have chosen any topic for discussion in Private Members' time but because it is World Mental Health Day, as Senator Devine and Ms McManus reminded us, it was appropriate to do introduce this Bill. It is invaluable to this Chamber that we can bring to bear Senator Devine's decades of experience as a psychiatric nurse.

We all have different experiences around mental health, whether with family members or representations and issues we are trying to deal with in communities. As Senator Ó Donnghaile said, this legislation is important because we cannot continue to differentiate between what is available in terms of access for physical health and mental health, as has happened so many times. This legislation will certainly right a wrong but it will only be fully appreciated if the services are available when young people look for them.

It is in that light that, looking at yesterday's budget, what was allocated to the mental health services was really important. The headline figure was €84 million but, once the pay recommendations are accounted for, the allocation will be €55 million. Will the Minister of State ensure this money goes to front-line services? It must go to them. Young people are arriving in Mayo University Hospital and being told by the medical team that there is no psychologist because the hospital does not have the resources or the money to have one. Others arrive looking for prescribed medication but the clinician required to prescribe and approve the medication is not available, meaning these young people are discharged again.

There is a revolving door operating in accident and emergency departments. They cannot cope because they do not have the full complement of mental health teams to treat and support young people. Young people are often left sitting in waiting rooms for hours before deciding to go home again. Others will be hospitalised overnight and sent back to the community again the next day without proper treatment. They may have to wait months for treatment they deserve. We are not progressing and going forward.

I worked for five years to develop Mindspace Mayo and it is a good project. The Mindspace programme reached out to more rural areas like Belmullet and Erris and, all of a sudden, there are no resources to do that outreach. I am concerned about the lack of supports available for the mental health of young people and right through the life cycle. I ask the Minister of State to ensure the money allocated in yesterday's budget is used specifically for front-line services.

I go to different medical events all the time and I am always amazed to learn of the management levels that have been invented throughout the HSE and the mental health services. It is incredible. We must be running out of titles for the different managers, yet we do not have the front-line staff. There are mental health nurses and other practitioners with impossible caseloads. No human being, however qualified or expert, could give quality treatment to the number of people in their caseloads. This is creating serious risks.

England has today, for the first time, appointed a minister for suicide prevention. That is a progressive decision and a recognition that mental health and suicide prevention have to be given much greater priority in this country and Britain. The Minister of State is in a position to do something about this. We have a rainy day fund. I do not want to see a rainy day fund going to the banks again. I understand the restrictions around a rainy day fund, that it has to be targeted at the banks, but I would much rather see that fund targeted to provide proper mental health services for people right across the life cycle who are affected by poor mental health and need that help and support now.

Photo of Jim DalyJim Daly (Cork South West, Fine Gael)
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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.

Photo of Rose Conway WalshRose Conway Walsh (Sinn Fein)
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So that stays the same.

Photo of Jim DalyJim Daly (Cork South West, Fine Gael)
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Front-line services are provided by consultants, nurses and psychologists and they must be paid. Pay increases are part of front-line services. There is no difference. In addition to the €29 million, €55 million is for new developments and services. The current range of services will be expanded for children and adolescents, adults, eating disorders, mental health of intellectual disability, MHID, to provide easier access pathways, some online therapies and a crisis digital text line.We have loads of ambition in mental health and we have loads of new positive initiatives that we want to roll out. I also hope to provide a funding stream for voluntary organisations on the ground such as sporting clubs that have great capacity to reach out to and build resilience among young people, and to support those efforts. We have huge ambition in the whole area of mental health. We are putting the resources behind this with more than €1 billion. We continue to have challenges such as recruitment of skilled personnel. There is a worldwide shortage of consultant psychiatrists. To tackle this I have tried to look at the whole area of the online space and e-delivery of mental health, which is supported by many groups, organisations and professionals such as the College of Psychiatrists of Ireland, who believe this is a way to enhance and add quality to the service we provide. We are very ambitious for mental health and we have a very busy programme for the year ahead. We are putting the resources behind this and I am confident. We will not solve everything and we will not find the perfect panacea, but we will greatly enhance the range of very comprehensive services that are there. There will always be faults and failings and it will always be possible to pick out the individual who is being let down, but mental health services are being delivered by individuals and there will always be situations where someone is not diagnosed, treated or accommodated appropriately. This will continue until we go into a full-time service run by robots. In the meantime we are going to have to deal with those challenges and acknowledge them, not run away from them.

The HSE service plan has a significant focus on the further development of the Child and Adolescent Mental Health Services, CAMHS, against a background where the population of children is increasing and where the demand for CAMHS has seen an increase of over 20% since 2012. Some 18,800 referrals are expected for HSE CAMHS this year, with approximately 14,300 being seen by this specialist service.

There are now 69 CAMHS teams, and three paediatric liaison teams, supported by around 50 operational CAMHS beds nationally, with further resources planned to come on-stream in the future. Since 2012, more than 1,500 new health professionals have been recruited for mental health to improve services, despite difficulties in recruiting and retaining specialist staff. I am satisfied that the HSE is working to provide the best possible service within available staffing resources and they have my full support in this regard.

In concluding my remarks here this evening, I believe it is important, insofar as we can, to have legislation that does not differentiate between issues of capacity and consent in relation to physical and mental health. I want to once again thank Senator Devine and her colleagues for introducing this Bill. We are in agreement that the principle of the change being proposed needs to be made and I am certain that we can agree the text changes necessary to the Bill to effect this change as proposed.

Photo of Maire DevineMaire Devine (Sinn Fein)
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Gabhaim buíochas leis an Aire Stáit. I need to talk about the services and the access to services. I believe that the Minister of State would be surprised if I did not. I have spoken with the Minister of State, Deputy Daly about the Linn Dara day programme and we disagreed publicly over that, so the Minister of State knows my thoughts very well in this regard. I am very vocal at times on the different issues such as the lack of child psychiatry and mental health nurses, along with the 70% of Vision for Change that has not been implemented. The Oireachtas Joint Committee on Future of Mental Health Care met for the last time for this report today. It will be launched next week with doable actions to improve the nation's mental health. I hope that we and the Minister of State can talk again over that and see what we can implement with speed and what else needs thoughtful consideration.

The Mental Health Act is being reviewed by the Minister of State's Department and I am aware that the report is due at the end of the year. It is an onerous task because there is a lot there that needs to be overhauled. The Bill lessens that burden on the Department, so I would like a "thank you" from them for that.

I stress that this progressive Bill will put mental health on par with physical health. It will prevent a hearing and a possible ruling from the High Court not if but when a case is taken or a challenge made to this. The Bill respects young people's autonomy and allows them the capacity to decide and consent on the best treatment for them. It also gives them ownership, which is very important in a psychological sense. Ownership is important for all of us because once we take ownership it becomes ours and something for us to do and we are determined for its success. With ownership of this and with young people determining what they need, in conjunction with their treating team it will, in reality, give a much better chance of success of living a happy, contented life instead of being driven by others' needs and others' diktats.

The Bill destigmatises mental health and well-being. It is no longer to be a whispered, dark secret. It acknowledges well-being as part of us all, and that we all at times suffer the jitters or the nerves, or whatever we want to call it. We do not need the stigma; we need to talk to each other about it. That helps to blow the lid on having to hold something very close and not being able to talk about it or make decisions on it.

I thank the Minister of State for being here today and for accepting this Bill. I thank my Sinn Féin colleagues, all the Senators who co-signed the Bill and all the Senators who spoke tonight for their support. I hope to progress the Bill quickly to Committee Stage and I am looking forward to discussing, tweaking and ensuring all the t's are crossed and the i's dotted so it will go through smoothly. I believe the Bill has unanimous support and is needed very soon. It would be lovely to get it through quickly and signed off into legislation. I thank you all and I thank the Minister of State for his input.

Question put and agreed to.

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Maire DevineMaire Devine (Sinn Fein)
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Next Tuesday.

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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Is that agreed? Agreed.

Committee Stage ordered for Tuesday, 16 October 2018.

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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When is it proposed to sit again?

Photo of Colm BurkeColm Burke (Fine Gael)
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At 10.30 a.m. tomorrow.

The Seanad adjourned at 7.30 p.m. until 10.30 a.m. on Thursday, 11 October 2018.