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Joint Sub-Committee on Mental Health debate -
Tuesday, 25 Jan 2022

General Scheme of the Mental Health (Amendment) Bill 2021 (Resumed): Office of the Ombudsman for Children

I welcome the representatives from the Office of the Ombudsman for Children, who are here to brief the committee on the Mental Health (Amendment) Bill. I welcome Dr. Niall Muldoon, the Ombudsman for Children; Dr. Karen McAuley, head of policy; and Mr. Diego Castillo Goncalves, policy officer.

Before we hear the opening statement, I need to point out to our witnesses that there is uncertainty if parliamentary privilege will apply to their evidence from a location outside the parliamentary precincts of Leinster House. Therefore, if they are directed by me to cease giving evidence on a particular matter, they must respect that direction. All witnesses are again reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if a witness's statements are potentially defamatory in relation to any identifiable person or entity, the witness will be directed to discontinue his or her remarks. It is imperative that he or she complies with any such direction.

I remind members that they are only allowed to participate in this meeting if they are physically located on the Leinster House complex. In this regard, I would ask all members, prior to making their contribution to the meeting, to confirm they are on the grounds of the Leinster House campus. I call on Dr. Muldoon to make his opening remarks. He is very welcome.

Dr. Niall Muldoon

I thank the Chair. I am delighted to have been invited before the Joint Sub-Committee on Mental Health to discuss the general scheme of the Mental Health (Amendment) Bill 2021. As members are aware, the Ombudsman for Children's office, OCO, is an independent statutory body, which was established in 2004 under the Ombudsman for Children Act 2002, as amended. The OCO has two core statutory functions, which are, to promote the rights and welfare of children under 18 years of age and to examine and investigate complaints made by or on behalf of children about the administrative actions of public services, public bodies, schools or voluntary hospitals that have, or may have, adversely affected a child.

Promoting the rights and welfare of children experiencing mental health difficulties has been a strategic priority for this office since 2016. As members of the sub-committee may be aware, the OCO has previously expressed serious concerns about the statutory framework provided for under the Mental Health Act 2001 in respect of children, as well as about delays in progressing corresponding legislative reforms in this area. Accordingly, we welcome the publication of the general scheme of the Mental Health (Amendment) Bill 2021.

Following its most recent examination of Ireland’s implementation of its obligations to children under the UN Convention on the Rights of the Child, CRC, the UN Committee on the Rights of the Child recommended in 2016 that Ireland “enact legislation that explicitly and comprehensively provides for children’s consent to and refusal of medical treatment, and ensure that the legislation is in line with the objectives of the convention and encompass clear recognition of the evolving capacities of children”. The committee’s strong expectation that the State will amend the 2001 Act in this regard is evident in the list of issues prior to reporting which the committee published in respect of Ireland, more recently, in November 2020.

The OCO’s assessment of the current general scheme has focused on proposals which concern the admission and treatment of children to approved inpatient facilities, and, as such, on Part 8 of the scheme. In this regard, we support the proposal to include a dedicated part focused on provisions affecting children under 18 years of age. However, in our view, a number of the current proposals under Part 8 do not have sufficient regard to children’s rights and evolving capacities and do not provide adequately for a child-centred, rights-based approach regarding children’s admission to, and treatment in, approved inpatient facilities.

Members of the sub-committee have a copy of the OCO’s observations on Part 8, which we submitted in December 2021. In the remaining time, I would like to highlight a number of issues addressed in our observations. Head 104, section 84 sets out guiding principles that will apply in respect of children. We welcome that these are intended to guide all decisions made in respect of the admission and treatment of children under Part 8 and, as such, that these proposed principles will guide the decisions made by mental health care professionals and the courts. We also welcome the provision made for the best interests of the child to be treated as the primary consideration via head 104, section 84(a). We suggest that consideration should be given to making appropriate provision for the factors that need to inform an assessment and determination of what is in the best interests of the child, taking into account relevant international human rights standards.

While the proposed guiding principles have the potential to promote a more child-centred approach to decisions affecting children under 18 years, we are of the view that the current provisions, including those concerning the views of the child, need to be strengthened. In this regard, we believe that further consideration needs to be given to the relationship between the proposed guiding principles; how the provisions made in relation to the proposed principles can guide their appropriate application in practice; and including additional principles, a number of which we outline in our observations.

We welcome the attention given to strengthening provisions for children’s right to be heard in decisions regarding their admission to, and treatment in, approved inpatient facilities. This includes the provisions made for children aged 16 years and older to be able to consent to their admission, including the presumption that any child aged 16 years or older has capacity to consent to or refuse admission to an approved inpatient facility.

However, we are concerned about provisions made in relation to children under 16 years of age. For instance, we have significant concerns about the proposed scope of “voluntary” admissions in respect of children under 16, whereby the admission of such a child will be deemed “voluntary” on the basis of the consent of the child’s parent or parents or person or persons acting in loco parentis. We are of the view that this fails to give appropriate recognition to the child’s status as a subject of rights and we suggest that serious consideration needs to be given to applying the category of intermediate person to children under 16 years who are admitted on the basis of parental consent.

We welcome that the proposed guiding principles make it standard that children should be cared for and treated in an age-appropriate environment. However, that this provision is accompanied by the clause “in so far as practicable”, and that the scheme permits the admission of children to adult inpatient facilities, is a symptom of a systemic failure on the part of the State. That failure has been maintained over many years and means that, 15 years after Vision for Change, we still do not have sufficient appropriate child and adolescent mental health services and supports available. I ask that the sub-committee is strong and ambitious about this issue and that it seek to prevent all admissions of children under 18 years to adult inpatient units.

The OCO is among a range of stakeholders that have highlighted the need for children and young people with mental health difficulties to have access to independent, specialised advocacy services. We welcome the provisions under the general scheme for children admitted as voluntary, intermediate or involuntary persons to be entitled to engage an advocate, either by themselves or with their parent or parents or person or persons acting in loco parentis. In this regard, we are of the view that appropriate advocacy services need to be made available to all children who wish to avail of them, irrespective of means, and that children should be supported to access such services.

We also welcome the provision under head 117, section 97(1), that in every case brought to the court under Part 8, a legal representative must be appointed to the child. As regards the appointment of a guardian ad litem, section 97(3) provides for the court to also appoint a guardian ad litem for the child "unless it is not in the best interests of the child". While the circumstances in which it might not be in the best interests of a child to appoint a guardian ad litem are unclear, we are strongly of the view that there should be a presumption in favour of appointing a guardian ad litem.

The proposals set out in the 2021 general scheme in respect of children present a significant opportunity to legislate for a child rights-based approach to decision making in respect of children who may require inpatient care and treatment for their mental health. It is crucial that these provisions are fit for purpose.

We thank the committee again for the invitation to this meeting today. My colleagues, Dr. Karen McAuley and Mr. Diego Castillo Goncalves, and I will be happy to take questions.

I thank Dr. Muldoon. Senator Conway is first. He will be followed by Deputies Ward and Hourigan.

I thank Dr. Muldoon for his very comprehensive overview. I have a couple of questions, the first of which is on the intermediary to whom Dr. Muldoon referred. I ask him to elaborate a little more on exactly who that person would be. Who would engage on behalf of children under 16? My second question relates to young people with physical disabilities. I refer young people who are non-verbal, who have hearing or vision impairments or a multitude of those and who obviously also have mental health issues. Has Dr. Muldoon's office given any consideration to how they should be treated, particularly those who are under 16? This may be a small group of young people, but it is a group that is profoundly affected. If these young people fall into a situation where their mental health is compromised or challenged, it that can be very serious, especially if they are non-verbal. I ask Dr. Muldoon and his colleagues to give us their thoughts on those two issues.

Dr. Niall Muldoon

I will take the last point first. For young people with physical disabilities, including those who are non-verbal, there has always been a huge difficulty with what is called dual diagnosis, where a child has a learning disability and a mental health issue. There is really limited access to mental health services. What we are looking at here is trying to formulate child rights-based legislation that will allow for the services to be provided in a child-centred way. We will need to have the services and resources in place and the professionals available who can understand and work with children in those circumstances. They need to be trained to hear the voice of the child, however that is transmitted. Non-verbal children will often use painting or sound to communicate in some way and there are people who understand how to work with those children and young people, including psychologists, special needs workers and others working in that area. Parents can help a lot as well. It is something in which we really need to invest time and energy. If we work from the single point of view that every child's voice is important in these circumstances, then we need to be able to facilitate those children whether they are blind, deaf, non-verbal or acting out with challenging behaviour. Once they have a mental health issue that necessitates admission to an inpatient unit, that unit needs to be fit for purpose to deal with those children and young people. I would hope there is progression within this proposed legislation to allow that to start happening - to hear those voices properly.

I will ask Mr. Castillo Goncalves to respond to the question on the intermediate person and to expand on our thoughts in that regard.

Mr. Diego Castillo Goncalves

I thank the Senator for his question. We very much welcome the provision of a third category of admission for children who are aged 16 and over and who lack capacity but who do not fulfil the criteria for involuntary detention. Regarding the category of intermediate persons, we note that the definition that applies to children in the general scheme currently is one which means that a child who lacks capacity to consent to his or her admission but has been admitted with the consent of his or her parents or parents acting in loco parentis. This means that the child does not have the capacity to consent and does not actually fulfil the criteria for detention.

That means the child is not going to be detained, but will have the same review mechanisms and protections that are afforded to those who are in voluntary detention. This will mean, for instance, that a child who is admitted as an intermediary person could leave the approved inpatient facility at any stage, subject to the agreement of his or her parents or guardians in this respect.

We note that a number of stakeholders, such as the former special rapporteur on child protection, have previously recommended provision for a category of intermediary person for children admitted on the basis of parental consent. We also note that when they made those recommendations, they did not put an age limit on them, as is currently provided for in the heads of the Bill. We are of the view that serious consideration needs to be given to applying the category of intermediary person to children who are under 16 and who are admitted on the basis of parental consent. I hope that answers the Senator's question.

Is there any other country that operates this system? It sounds interesting and is a way forward. Is there any best practice that we could examine and learn from?

Mr. Diego Castillo Goncalves

In Canada, for instance, there are provisions in respect of admission of children who are under 16 and who would either have capacity or not have capacity but would be admitted without being an involuntary detention admission. There are other examples that we can look at in regard to the UK when it comes to the admission of children who are under 16 and who, due to their evolving capacity, actually have the capacity to consent, even if that is not a presumption of capacity in the first instance.

Listening to Dr. Muldoon's opening statement, while he welcomes the heads of the Bill, as such, there is still a lot that he is not happy about. Is that a correct assessment?

Dr. Niall Muldoon

Yes, again, we are looking at one section. We are so far behind that we are trying to catch up with 50 years of legislation in every other country. Things need to be improved. There have been significant steps forward. What we are trying to do here is to make the best of this opportunity, which I am certain will not come again for another 20 years. We are trying to get the best legislation we can at this point in time.

We all share in that desire. I thank the witnesses. I might contribute again.

I thank Dr. Muldoon and all the witnesses for the opening statement and for attending today's meeting. I have a couple of questions. The first is in relation to the Assisted Decision-Making (Capacity) Act that is to run in parallel on the Joint Committee on Children, Equality, Disability, Integration and Youth, of which I am also a member. There seems to be contradictions between the amendment of this Act, which seeks to give 16- and 17-year olds the capacity to consent to their mental healthcare, but it does not seem to be doing the same in the Assisted Decision-Making (Capacity) Act in relation to wardships of court. Do the witnesses think that the Assisted Decision-Making (Capacity) Act should be amended while we are waiting for the reform of the Mental Health Act? Do they have any concerns about what will happen if it is not addressed at the Joint Committee on Children, Equality, Disability, Integration and Youth and we have to wait for this Bill to move through both Houses? My understanding is that it has taken seven years to get to the point following the commencement of the Assisted Decision-Making (Capacity) Act to provide for under-18s. We have this great Part 8 in the proposed reform of the Mental Health Act, but how will children's rights be upheld in the meantime?

Dr. Niall Muldoon

I am going to ask Mr. Goncalves to answer that question. It is about getting consistency on this.

Mr. Diego Castillo Goncalves

I thank the Deputy very much for his question. On the way in which the general scheme interacts with the Assisted Decision-Making (Capacity) Act and the gaps there are between the two pieces of legislation, as we noted in our observations, we welcome the extension of the category of intermediary persons to children who are aged 16 and over. In this respect, we note that the Assisted Decision-Making (Capacity) Act 2015, as referred to by the Deputy, does not apply to persons under 18 and therefore it does not seem that it will apply to capacity assessments that will be conducted in respect of children under this general scheme. While we note that the Mental Health Commission, according to the current heads of the Bill, will prepare and publish a code on capacity assessments for children, at this time it is not clear what form these assessments will take and whether and to what extent they will actually draw on the Assisted Decision-Making (Capacity) Act. We would welcome clarity on this. We are concerned that, as the Deputy mentions, it appears that there is a gap in this regard.

As we understand, it will be a matter for the Department of Children, Equality, Disability, Integration and Youth to decide on whether the principles of the Assisted Decision-Making (Capacity) Act 2015 would apply to children. We urge the members of that committee to raise the matter to ensure there is joint collaboration between both Departments when it comes to the relevant legislation.

There are contradictions between the Mental Health Act and the Assisted Decision-Making (Capacity) Act 2015 in relation to how those under the age of 18 are able to consent to treatment, whether it is mental health treatment or treatment under the new wardship of court. In layman's terms, if these contradictions are not ironed out at this stage, what is the worst-case scenario as regards what could happen?

Mr. Diego Castillo Goncalves

One of the points we raised in our observations is that the best interest of the child should guide all treatment decisions. One of our concerns is that if this fragmented system of capacity assessments is not clarified, or if there is not clarity between these two Departments or they do not take a joint approach ensuring provisions that impact on children reflect best practice, as provided for under the 2015 Act, the best interest of the child might not be upheld or there will be concerns about whether the evolving capacities of children will actually be taken into account.

Would best practice be having a uniform approach between the Mental Health Act and the Assisted Decision-Making (Capacity) Act 2015 to make sure those aged under 18 are empowered and have the ability to make their own decisions?

Dr. Niall Muldoon

The Deputy is correct. If we do not close this gap now, we will have serious problems in the future. The worst-case scenario is that the same child going through those two systems would have different outcomes. That is the wrong way forward.

Dr. Muldoon mentioned the continuing practice of admitting children into adult psychiatric facilities. It is a draconian practice and, as he highlighted, we need to get rid of it at this stage. It seems that some of the most vulnerable children, with acute mental health needs, are admitted to adult psychiatric hospitals. It is a frightening experience for any child to be admitted to a hospital for mental health reasons but that is made worse and exacerbated if the child is admitted to an adult psychiatric ward that does not meet their needs.

Last year, 27 children were placed in adult psychiatric facilities. While I acknowledge that this figure is a good deal lower than in previous years, which is welcome, it is still 27 children too many. The children and young people who were placed in these facilities are already in an incredibly difficult place with their mental health. This practice is, therefore, unacceptable. Will Dr. Muldoon elaborate on capacity issues in youth mental health services, such as the child and adolescent mental health services, CAMHS, and other youth mental health services? I will also raise this matter during statements on youth mental health in the Dáil tomorrow. Why is the Government proposing to maintain in the Bill the wording that those aged under 18 will not be admitted to adult facilities "in so far as practicable"? I know what Dr. Muldoon's answer will be but should we be prohibiting this practice?

Dr. Niall Muldoon

As I psychologist before I became Ombudsman for Children, I would have seen children being moved into adult facilities when there was a necessity to do so and there was no other option. In my first couple of years as ombudsman, I felt it was okay to keep this option open. However, what is happening now is we have become lazy about it and we have let the idea that we do not have the resources in place rule the fact that the best interest of the child is being overrun. We need to move forward from that. That is why I am asking for a nil or zero option in regard to putting children into adult wards.

We did a report in 2018 titled, Take My Hand, in which we talked to children in those adolescent inpatient units. A number of them talked about the trauma they went through going into adult wards. As the Deputy said, while they were in their lowest ebb in life - they may have been suicidal or already have attempted something - the best service we could offer them was an adult psychiatric ward, which is scary at the best of times. We cannot allow that to happen any more. If we continue with this as it is, we will be legislating it into practice and we will need an amendment in the future to stop it.

At the moment, it is just a practice where people have let themselves go and the habit has built up that we do not have enough beds. That is not an excuse any more, as far as I am concerned. We need to put those resources in place and the only way we can force that to happen is to make it a zero option so people cannot do it. We also have to be aware that even to have children go into paediatric wards is not a positive step forward either, and we need to properly facilitate our children. We had a case in which a child was in a paediatric unit for maybe three or four months, with no therapy, no education and no interaction with anybody except an occasional visit from somebody who wanted to adjust the medication. That is not a way forward either.

We have to look at this in totality. One step forward will be to prevent them going into adult psychiatric units and to make sure we force the resources to be provided and ring-fenced for our children now.

To me, having this in the Bill is to admit they do not see the proper resources being directed to youth mental health in the future. To have that nil part in there would be very welcome.

I have heard anecdotal evidence and have spoken to people who work in facilities. There are people who got in touch with me because their 17-year-old son or daughter - it is mainly sons - were admitted into an adult psychiatric unit basically due to their size rather than their age, because they are big lads and it is felt they are more appropriate to the adult unit. That should not be considered appropriate. We should have a children's mental health service that deals with all children, irrespective of size or anything else that is going on.

In regard to the independent advocacy services mentioned by Dr. Muldoon, I want to tease out one line from his opening statement, namely, “we are of the view that appropriate advocacy services need to be made available to all children who wish to avail of them, irrespective of means, and that children should be supported to access such services.” In particular, I want to tease out the phrase “irrespective of means”. Does Dr. Muldoon have concerns that there will be a cost to this advocacy service? Are there sufficient provisions in the Bill to make this advocacy service available to everybody free of charge and at the point of entry?

Dr. Niall Muldoon

I know there are currently a number of pilot programmes running in one or two of the units around the country. As the Deputy knows, there are four HSE-run units and two private adolescent units, and there are advocacy services in some of them. What service a person gets might depend on who the person is and what he or she pays for, and the person might have an advocacy service available to him or her. We need to make sure it is totally consistent and free for all. I was just flagging that to make sure it does not become an issue in the future. The right way forward is to provide a well-trained professional to assist our children at their lowest ebb, as well as the parents, because parents do not know the system either. We need to make sure of that. Again, this is standard practice worldwide and it should not be an issue. I just want to make sure it stays free and available to all.

Dr. Karen McAuley

I want to come back to Deputy Ward’s previous question in regard to what is provided for under the general scheme in terms of the prospective admission of children to adult facilities. I want to reinforce one of the points that Dr. Muldoon made earlier. Members will recall there was a Private Members’ Bill dating back to 2016, the Mental Health (Amendment) Bill 2016, which was examined by a previous Joint Committee on Health in 2019. We submitted our observations on the Bill, which had the best of intentions and was not endorsing the admission of children to adult facilities. What it was doing was recognising that the practice occurs and seeking to put safeguards in place regarding the admission of children to adult units. One of the concerns we expressed at the time was that an unintended consequence of doing that would be to establish a legal basis, if we like, for admitting children to adult units. In effect, the current general scheme will do just that and it will establish a legal basis for doing it. Therefore, while we acknowledge that, under the general principles, one of the guiding principles is to try to ensure that children are admitted to age-appropriate facilities, the “in so far as practicable” piece that the Deputy referenced earlier, as well as head 128, which is the dedicated head in Part 8 dealing with the admission of children to approved adult facilities, effectively legislates for the admission of children to these facilities.

Our concern, as Dr. Muldoon mentioned, is that if we legislate for this, it may exacerbate what is already a protracted delay in implementing the measures and putting in place the resources to allow for an end to this practice. We have to be very careful about the potential unintended consequences of legislating for the admission of children to adult units.

I may not speak for the entire committee but I fully support the idea of zero tolerance for the admission of children to adult facilities.

I might bounce around a little in my questions because this is very broad legislation and we have already talked in this meeting about parallel legislation. To return to the issue of consent, I am trying to understand something mentioned in our guests’ opening statement and the information they sent us in September. It relates to cases of children under the age of 16, where the consent of the guardian comes into play. The September submission referred to assessing maturity. Who does that and how does it work? It may be a simplistic question, but is there a lower age bracket, similar to the lower age that applies to responsibility in law? The principle of consent applies to children under the age of 16, but is there a point below which we do not assess maturity?

Mr. Diego Castillo Goncalves

I might come in here and touch on our concerns regarding consent for under-16s. In this respect, we acknowledge the expert group recommended in 2015 that there should not be an automatic presumption of capacity for children under the age of 16 and that the provisions made in respect of children under 16 are in line with the recommendations made by the expert group. We have no immediate difficulty with that proposal. We also support the involvement of the child's parent or guardian in decision-making regarding the child's prospective admission and treatment in an approved facility.

However, having regard to the provisions of the UN Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, we are concerned that the use of a purely age-based approach in respect of children who are under 16 does not have sufficient regard to the evolving capacities of children, including in regard to making decisions about their own mental health and treatment. In this respect, we would favour the more nuanced approach that was previously proposed by the Law Reform Commission and the special rapporteur on child protection.

It might be helpful to explain what we mean by this nuanced approach. We suggest provision could be made such that a child under 16 years could give or refuse consent to his or her admission, care or treatment in circumstances where it has been established the child has the maturity and understanding to appreciate the nature and consequences of the specific decision in regard to his or her admission or treatment. This would arise when the young person understands the treatment, why it is being recommended and what will happen if he or she accepts or refuses it. In our view, this case-by-case basis approach would be more aligned with a child rights-based approach and with relevant provisions of both the Convention on Rights of the Child and the Convention on the Rights of Persons with Disabilities. It can be seen in other jurisdictions, including the UK and Canada, as referred to earlier. In Canada, for instance, there is not an age-based approach at all.

As for who will make the decision, one concern we have is that, although the guiding principles provide for a child of under 16 who is capable of forming his or her own views to be consulted and to have due weight given to his or her views, the heads of the Bill appear to be silent on the matter the Deputy raised relating to who will assess and determine whether a child of under 16 is capable of forming those views and how this will be done. It also appears that the heads of the Bill, in their current form, are silent on what measures will be taken to ensure due weight will be given to the child's views, including in regard to his or her proposed admission. Another concern is that a subsection of the general principles relating to whether a child under the age of 16 is capable of forming his or her own views includes a provision for the child to be consulted where practicable. Our view is this provision should be deleted; the child should always be consulted.

Further attention needs to be given to this as well as to another provision under the guiding principles in regard to giving due weigh to the views of the child and that how they interact with the views that are given by the parents or by the guardian. I hope that makes sense.

It does. I guess the answer is that there is no clarity around who would assess maturity. Mr. Castillo Goncalves mentioned a number of other jurisdictions. Is it the standard in other jurisdictions where this practice is working for there to be an appeals process by that child? Is it possible for the child to appeal an assessment of maturity?

Mr. Diego Castillo Goncalves

I have to come back to the Deputy on that question, if that is okay.

That is okay. I was wondering if we could talk about guardian ad litem, GAL. I am not a legal expert. I am aware that there is other legislative work being done on the child care (amendment) Bill, which fell in the last Dáil and is now coming back. I would like to understand a little bit more about the interaction of the guardian ad litem. I suspect that the answer will be that we need further clarity on where they should be appointed. I am interested particularly in that idea that it should be a given and that everybody should be entitled to a GAL. Does that need to be explicitly written in this legislation or should it be written in the other legislation? It is that question of crossover again.

Dr. Niall Muldoon

I will ask Dr. McAuley to answer the Deputy’s question.

Dr. Karen McAuley

I thank Deputy Hourigan for her question. There are a couple things I might add on that. First, allowing that this is general scheme and not the actual Bill and therefore the wording may be adjusted, I would flag the way it is currently set out under section 97(3). It states that a GAL would be appointed unless it is not in the child's best interests. We find that an unusual form of wording in and of itself, irrespective even of what the child care (amendment) Bill will say about the appointments of GAL in care proceedings. This is primarily because it raises the question of what circumstances would it not be in the best interest of the child to appoint a GAL? Whether it is necessary, etc., is a different question. However, it suggests that it would not be in their best interests. We think that needs clarification. It may just be that the wording is a bit awkward, to be fair, but we do not know that. The reason we think that is because one of the core roles of a GAL is to recommend to the court what is in the best interest of the child. That is one of its fundamental functions. That is the first point.

The general scheme of the child care (amendment) Bill 2021 was published last autumn. As the Deputy knows, it is looking to do a number of things. It is to set out in law the role and functions of a guardian ad litem, etc. In the current wording, again allowing that this is the general scheme, two things are worth noting. First, in proceedings before the High Court, a GAL is automatically appointed. For example, in proceedings relating to the placement of a child in secure care or special care, a GAL is automatically appointed. Obviously, that is a form of civil detention, if you like, which involves a deprivation of liberty. The admission of a child for inpatient care, for example, particularly in context of involuntary admission and detention, therefore, is also a form of detention. We have to think about that and about parity there.

The other piece on the child care (amendment) Bill 2021 is on the proceedings in the District Court. These are obviously care proceedings. I appreciate the idea is that the District Court will be involved in such proceedings under this legislation. What is provided for at the moment is more or less aligned with a presumption in favour of appointing a GAL. It states that the court shall appoint a guardian ad litem for the child unless the best interests of the child can be determined in another way and unless the court is satisfied that there is another way to facilitate the child to be heard. Therefore, it is a much more positive way of framing it. Going back to the current general scheme, it may just be a question of wording that needs to be adjusted. However, from our perspective it is not clear when it would not be in the best interest of the child. As well as this, the wording seems strange. I hope that answers the Deputy’s question.

It does, because the wording seemed strange to me. For clarity, then, if the wording was tidied up in this legislation, would the other legislation do the job of ensuring that there is a presumption a child would get a GAL?

Dr. Karen McAuley

Part of it was about there being parity between the two pieces of legislation. This is because the circumstances are different but, at the end of the day, there is a child involved.

If a guardian ad litem is to be appointed, unless the best interests of a child can be determined without the appointment of one under the Child Care (Amendment) Act, then there should be parity here.

Dr. McAuley is suggesting that there should be similar language in this legislation to the language in other legislation.

Dr. Karen McAuley

I know that members are all aware that part of what this legislation is trying to do is to bundle all of the provisions concerning the admission and treatment of children in inpatient facilities into one Act. We would support that legislative coherence, to try to minimise the amount of cross-referencing between legislation. Any provision relating to the appointment of guardians ad litem under the general scheme of the mental health (amendment) Bill should include the provision in that Bill.

That is a really important point. The committee is well aware that we are constantly referring to other legislation while we are trying to deal with this legislation. I do not want to use the word "frustrating" but it is no small thing. The witnesses' submission pointed us to the report from the UN regarding Ireland and the United Nations Convention on the Rights of the Child. One of those recommendations refers to the prevention of suicide and strengthening the prevention of suicide among people under 18. Have the witnesses any thoughts on that with regard to inpatient facilities and what this legislation could or should be doing?

Dr. Niall Muldoon

I am not quite sure which part the Deputy is thinking of.

Under mental health on page 12, there is a section called "Suicide". It states:

In the light of its general comment No. 4 (2003) on adolescent health and development in the context of the Convention on the Rights of the Child , the Committee recommends that the State party further strengthen its measures on the prevention of suicide, which should take into account the specific needs of children and adolescents, and ensure the allocation of adequate human, technical and financial resources

Dr. Niall Muldoon

Is the Deputy sure that is our submission?

That is the UN statement.

Dr. Niall Muldoon

I will speak in general. All the work being done regarding inpatient services has to be done in parallel with the strengthening of overall suicide prevention, mental health and well-being of our children. The UN committee was trying to address school bullying, racism, sexism and all those issues that come up for children and young people. It is trying to make sure that suicide is less of an option for as many children as possible.

My question is more about inpatient facilities. We are talking a lot about capacity and the removal of freedom from people. Is there a particular strand that we need to think about when looking at this legislation, relating to the removal of freedom versus the need to strengthen suicide prevention and keep people safe?

Dr. Niall Muldoon

It would be my sense that it is a starting point for anyone who is an inpatient. Usually they go in either for the prevention of suicide or to try to build them up in a way that suicide ideation does not happen again. The work that the committee is doing in putting this legislation together is all important for that and creating an inpatient unit that is much more child-centred and child-friendly, which takes their points of view on board. One of the recommendations of the Take My Hand report, from all the young people that we talked to across all the units, was that they need to be heard better. One or two nurses might talk to them and listen to them, but they still told stories of doctors sitting across the desk, talking to their mothers beside them while they were 16 years of age and listening to what was said. Prevention of suicide is built into hearing the voice of the child and acting on the voice of the child. It is not just a matter of listening and putting it away, but of acting on it. I am not sure if I have answered that question properly.

Dr. Muldoon has answered it. The strengthening of the child's voice and capacity will do some of that work.

I thank the witnesses for coming in today. This is a very complex issue with regard to updating legislation on mental healthcare for all our citizens. With regard to the opening statement, I want to get clarity on two questions. Under the section on guiding principles in regard to children, the witness stated that section 84 provides for a child under the age of 16 who is capable of forming his or own views to be consulted where practicable and that the Ombudsman for Children is of the view that "where practicable" should be deleted. Will the witness clarify that terminology and why "where practicable" should be deleted?

Dr. Karen McAuley

I will take that question and I thank the Deputy for it. On where we are coming from, as the Deputy will be aware, the child's right to be heard is a fundamental principle in terms of children's rights. The key point is that every child has a right to be heard and to have due weight given to his or her views in accordance with his or her age and maturity. The point is that it should not say "where practicable". The point is to make it feasible. We are not clear what "where practicable" refers to. The problem is that what potentially could happen is that barriers that are either already in place or will be put in place where it will be possible to say we could not consult with this child because it was not practicable when that child has a fundamental human right to be heard. It is a qualifier that we do not think is appropriate to have there. A right to be heard is a right to be heard, not "where practicable".

Is it about terminology and wording?

Dr. Karen McAuley

It is terminology, but it is the implications of that terminology because what it does, inadvertently or otherwise, is potentially restrict a child's right to be heard and place limitations on it. That is not appropriate from a children's rights point of view. As a person one has a right to be heard, and not a right to be heard where practicable. The only limit is if one does not wish to be heard, which is an entirely different thing.

If the terminology was to be replaced, how would Dr. McAuley word it?

Dr. Karen McAuley

It is about deleting "where practicable" - literally deleting those two words.

A second clarification is in regard to the intermediate or voluntary persons. I will paraphrase the contents of this paragraph. It states that the idea that admission of a child under 16 on the basis of parental consent constitutes a voluntary admission appears to the Ombudsman to be fundamentally flawed. Why would that be fundamentally flawed?

Dr. Karen McAuley

I will take that question as well but Mr. Castillo Goncalves might wish to elaborate further.

In our observations submitted to the committee before Christmas we referenced a fundamental point made by the Law Reform Commission when it was looking at the area of children and consent to medical treatment a number of years ago. This is that for admission to be voluntary there has to be an element of voluntarism involved. If you are a child and for whatever reason you have concerns or reservations and do not wish to be admitted, for example, your admission, in plain English, is not voluntary. There is no voluntary element to it. This is not to critique parents in any way, but the idea that we provide in law that a child who expresses a wish not to be admitted would be admitted as a voluntary person solely on the basis of the consent of his or her parent is wrong. That is why we are calling for a third category to be extended to under-16s. That is an intermediate person. That allows for a child to be admitted on the basis of parental consent but it removes this illusion that it is voluntary on the child's part.

Dr. Niall Muldoon

The concept of an intermediate person also gives better data. We are moving into a situation where we know who has consented to what.

One can see that even in the adult world where one has voluntary and involuntary. If an intermediary is provided, it means the person has been asked, has probably refused and somebody has forced the issue to bring the person into an inpatient unit. In turn, that allows one to create a different environment and work on that. At the moment, we assume that every child gives voluntary consent to be placed in an inpatient unit, but that is not the case. It just gives us a little more guidance in that regard and more respect to the child's voice.

What happens in the case of a child under the age of 16 with, say, an acute eating disorder, who, without medical treatment in a medical situation, will die because of a lack of food and so forth? What happens if the child says he or she does not want to go to a unit but the parents want their child to go to the unit and the doctor caring for the child says the child needs to go? What happens in circumstances where a child literally refuses treatment?

Dr. Karen McAuley

In terms of what is provided under the general scheme, in a practice sense what one would like to think is that where a child refuses, one would, in the first instance, seek to understand what the reasons are and see whether they can be addressed. I will talk in hypothetical terms. Allowing that there are only four State-funded inpatient units in the country, a child may have to move quite far away from his or her family, community and friends and the child may be concerned about that. A child could be frightened about the prospect of being admitted to an inpatient facility if he or she has not been in one before. There could be lots of reasons a child might refuse which could, potentially, be addressed professionally through consultation and seeking to alleviate concerns.

In terms of the legislation, members will know that one of the guiding principles, which is set out under head 104, is about the best interests of the child being treated as the primary consideration. From a children's rights point of view, the way that is supposed to operate is that when assessing and making a decision about what is in the best interests of the child, one seeks to hear the views of the child on whatever decision one is trying to make, for example, the admission of a child to an inpatient facility, and give due weight to his or her views. That is not the same thing as the child determining the decision. If someone is trying to figure out what is in the best interests of this child, he or she must seek to hear what the child's views, wishes and preferences are, understand them and take them into account. However, when someone is charged with making a decision that is in the best interests of the child and that is the primary thing he or she must think about, that is going to guide the decision-making. The guiding principles allow for that.

I apologise for going a little off the point in answering the question but I will mention two important points, one of which we have flagged. From the way the legislation is written right now, allowing that this is a general scheme and not the actual wording of the Bill, it is not clear how these principles are going to interact. The text sets out a list of principles but does not say how they relate to one another. Further attention needs to be given to that. For example, there is nothing to suggest what I have just talked about, which is critical from a children's rights point, namely, that when assessing what is in a child's best interests, hearing the child's views is a pivotal part of that. There is nothing in the principles to suggest that, however. That is one of the reasons we have suggested that it would be worthwhile considering including in the Bill a provision setting out what are the factors that a decision maker, whether it is a health professional or a court, needs to consider when making a determination about what is in the best interests of the child. We have that already in Irish law and we referenced it under the Guardianship of Infants Act and the Adoption Act. There are clear factors that are laid out, a list of things that one must think about when deciding what is in the best interests of the child. It would be very helpful for decision makers to have an equivalent and appropriate list provided for under this legislation.

I do not know if those circumstances are rare but in such circumstances, the child can be involuntarily detained in his or her best interests.

Dr. Karen McAuley


The child could say and has the capacity to say that he or she does not want to seek treatment.

Obviously, the best interests of the child, medically and legally, would then be for him or her to be involuntarily detained to seek treatment. It is quite a complex issue.

I have a final question on children aged between 16 and 18 years. Assisted capacity essentially means a person of an age can make an independent decision regarding his or her own health, and so forth. That is probably not the best definition but that is what I have come up with. On children aged between 16 and 18 years, what is the determination about a child who is maybe in the throes of a pretty dire mental health situation and absconds or says he or she does not want treatment? The child could be in a situation where he or she is very traumatised. What happens in that situation, especially for that age group of young people? Again, we come back to the point of the best interests of the child. In circumstances, does that apply to that age group, namely, those aged under 16 years?

Dr. Niall Muldoon

I think the Deputy is talking about the same situation. He originally used the example of the eating disorder, which is hugely traumatic and invasive for the young person. He or she will have his or her beliefs and will stick by them. That will often mean that even if that young person weighs 7 stone, he or she will still not want to get help or will think that everything is okay. In these circumstances, as Dr. McAuley outlined there, the important thing is we give weight to his or her voice and listen to them, especially when they are aged between 16 and 17 years. At the same time, if it is a life or death scenario, the best interests may override that and it may be a situation in which we need to legally and medically take charge. That is not going to change. What has not happened before is that listening to the voice and the evolving capacity of the children and young people means the next time you have to make a decision about them it is going to be a bit easier because you have listened to them. You have said to them that you are listening to them but we are still going to make this decision, although next time, we may listen and do something different. Again, that creates a sense of hope within the child. It creates a sense of being heard and being recognised as an individual. The child will not like the answer but it creates an opportunity to build those relationships more strongly in the future.

At the moment, all it is is we are telling you that you are going in; that is all there is to it and there is no more about it. However, we are now trying to build legislation that ensures children's voices are heard as best as possible based on their capacity. However, it still does not override things - if it is a life-or-death scenario, as you would expect, it would not necessarily be the only answer. That is same in many decisions, not just ones that concern mental health or medical treatment. Children's voices and views are heard but other decisions can be made. When we talk about children's rights, we always say to children it does not guarantee that what they want will happen but it will be heard and it will be heard and explained if it goes in a different direction.

Does that help? Does that cover the Deputy's query?

It does.

I have a final, supplementary question on that, especially around eating disorders. Again, I am not sure if Dr. Muldoon can answer this. I am sure this has happened to adults but in a situation where a child is involuntarily detained and a situation arises where the child completely refuses to eat, what happens in those circumstances?

Dr. Niall Muldoon

Again, I am not very well-placed in this regard but my understanding, from a number of cases we have heard here, is the medical team and the parents will take over. If there is an imminent threat to life then the medical obligations are to retain life and to maintain life. I assume the parents would step in and support that. That is my understanding.

Okay. I thank Dr. Muldoon.

We have just been joined by Senator Dolan. Does she want to contribute now or to have a few minutes before doing so?

I have listened to the contributions, particularly from my colleagues, and it has been a very informative debate. I thank the witnesses who have joined us today. I know Dr. Muldoon and Dr. McAuley and Mr. Castillo as policy officers. I thank them for giving of their time.

Many questions have been asked by my colleagues. It has been an interesting debate, particularly on foot of Deputies' comments in the context of when a child's capacity medically has changed and when the medical issue takes precedence, especially when it is a matter of life or death or in those circumstances that were outlined previously.

Returning to some of the points Dr. Muldoon mentioned in his opening statement, he acknowledged this legislation seeks to strengthen the voice of the child. He is the ombudsman and his office is focused on the rights of children under the age of 18 and ensuring that the voice of the child is heard. Dr. McAuley gave some good examples of what is involved in reaching a consensus with a child. An importance aspect is that the consultative process is done and the child’s voice is heard. There may be some ways to reach a consensus position with the child and the parents, particularly in the type of facility referenced. I might explore that further. Will Dr. Muldoon indicate one or two scenarios where the importance of hearing the voice of the child might lead to a positive outcome for the mental health of the child?

Dr. Muldoon mentioned children not being admitted to adult facilities and so on. The challenge is accessing places when children are in acute episodes. Will Dr. Muldoon give an example of what it might look like when a child in going through the process of an acute episode? There is probably guidance available from the ombudsman's office for parents dealing with those dramatic situations but does another element need to be added to the legislation with respect to a crisis, acute situation? I appreciate the detail Dr. Muldoon has provided,including the advocacy role of the office. Those are a few comments. I appreciate Dr. Muldoon has already gone through much of the finer detail with my colleagues.

Dr. Niall Muldoon

If I picked the Senator up right, she put it well when she asked about the possibility of consultation to reach consensus. That almost steps away from the medical model that has been in place for 100 years, namely, the patriarchal idea that "I know best and I will medicalise you to make you better". Consultation and consensus is at the core of children's rights. The legislation is moving in that direction, which is extremely positive.

Moving on some examples, the most difficult one, which Deputy Kenny spoke about, is bringing a child into a unit. Some children will not want to go in. It is important to negotiate and engage with children, understand where they are coming from and allay their fears and one would still probably have to bring them into a unit. That discussion is probably the most important one because that would be at a time of acute episodes, as the Senator mentioned. The other negotiation that is extremely important is when children sometimes do not want to leave an inpatient unit because it has become their safe space. Having been in such a unit for eight to six eight weeks it could be scary for them to return to the world they left where they may have been hurt and the harm or negative thoughts became larger than life for them. The best interests of the child are taken into consideration in that negotiation. In many circumstances children will often leave a unit for a weekend and come back into the unit for five days and then leave again. It is a matter of working with the child to find the best way to support him or her to return to the outside world. That is a real example of listening to the voice of the child. There might be a cross-over with respect to acute episodes. In terms of the concept of a child being at his or her lowest ebb, whether the child has been taken out of a river following an attempted suicide, having abused alcohol or drugs or whatever it might have been that brought the child to the stage of attempting suicide, access to child-centred specialised services is crucial.

That is why we are pushing for zero tolerance for admission to adult units. What happens in an adult unit is the child is put into a room on his or her own and is specialled. Somebody sits with him or her and that is all they do. We have had cases where children have been seriously afraid of the individuals around them, who may be experiencing serious psychotic episodes and may be much bigger and stronger than the child. If a child is experiencing an acute episode, therefore, we have to provide the services and the flaw is on our side, as a State, if we do not provide them.

This is why we feel we should call time on the openness in regard to allowing children to be admitted to those units when necessary and to demand zero tolerance for it. We need to get in there, invest our resources and ensure no children, in the most terrible and traumatic circumstances in which they can find themselves, will have to face additional trauma on top of that. I heard a radio interview last week with a man talking about how spending even 24 hours in an adult unit had set him back by about two years in his recovery. He was 17 at the time. We really need to move forward on this issue.

I hope my response covered the answers the Senator was seeking.

The experience Dr. Muldoon outlined is crucial to understanding the impact of this. We need to understand it will set the person back if it is the type of facility that causes more angst and anxiety than healing.

My next question may fall a little outside of this topic. Sometimes I wonder about the supports that are in place for the adults around the child to bring him or her down the right path. It can be a lack of awareness or of knowledge. Dr. Muldoon spoke about having a legal representative, the appointment of a guardian and the intermediate person status. We need to ensure the people around the child are able to provide, and allow for, that child-centred approach to take place, and there are many factors in that. This legislation will be a good step in the right direction and our guests' contributions in that regard are greatly appreciated.

Dr. Niall Muldoon

That is where the advocate will be very beneficial to the family. If somebody has worked in the system, knows the individuals in each unit, understands what the child is going through and can support the child and the family, the advocacy service will be worth its weight in gold for all those people.

I have one or two questions. I thank our guests for their clear and precise presentation. The impact that a child being admitted to an adult facility would have on him or her is shocking. Without doubt, there should be zero tolerance for that. Have our guests received any complaints from young people or children about how they have been treated at an adult facility or in mental health services in general?

Dr. Niall Muldoon

We have had a small but consistent number of issues with mental health services, some of which relate to eating disorders. I mentioned earlier a young man who had spent months in a children's unit even though he was required to be admitted to a psychiatric facility. He also had an intellectual disability. That dual diagnosis is really difficult for people to cope with but he was the one who had to compromise. We compromised his care rather than find the suitable resources and way of doing it. There have been crises and public outcries over people sleeping on floors when waiting for units. Even when they are admitted to a unit, they will be just given a chair because there are no free beds. That is on us as a society and State.

The Chairman was involved in the previous committee on this issue. The mental health budget is miniscule. We examined the only figures we could get. Only 5.6% of the health budget relates to mental health. I have been through this with many people. We do not have a figure for how much we spend on children within mental health.

The best guesstimate I can come up with is that 20% of the mental health budget is spent on children, which means less than 1.1% of the overall health budget is spent on children's mental health. If we have a problem with resources, straightaway, it is an allocation, a decision or a choice as to where we ring-fence this. Even if we doubled the money spent on children, my guess is that it would make a huge inroad into those situations.

To me, the crux is to try to force the decisions of the Government so it cannot allow children to go into adult units any longer. It needs to provide quality, well-staffed inpatient units, as well as going downstream and helping with primary care and those areas as well.

That picture Dr. Muldoon painted of the doctor sitting across from the parent and almost ignoring the child is quite harrowing, to be honest. With regard to advocacy, does Dr. Muldoon have any idea which organisation would be best placed to provide advocacy services? I know the National Advocacy Service, the Patient Advocacy Service and the Decision Support Service are all only for those aged 18 years and over. I am aware the youth advocacy programme is still only piloted in two centres, or is that correct?

Dr. Niall Muldoon

I believe so.

And that is only for young people in inpatient units. How can an organisation advocate for someone under 18 outside of approved facilities?

Dr. Niall Muldoon

It just needs to be set up that way. We are in a situation now where we are so far behind every other country on this. We have piloted a programme for advocacy within two units but that must be three years in existence now. The principle of everything that has been learned from that needs to be extended so that any child in a serious situation, or any child involved in CAMHS who might need advocacy and be serious enough for inpatient care, needs to have that advocate available to him or her. We need to just roll that out. I am not sure who would be best to do that but it is crucial that we provide it for the children. Even if we include the private units, there are just six units across the country. We are looking at 100 children at any one time or possibly 200 or 300 - I am sure the committee has the figures. While not all of them will make it in, we might be looking at 300 or 400 children at the most in a year. A well-resourced, well-trained advocacy service will be invaluable and, as I said, it will not just be for the children but for their families as well.

With regard to the Assisted Decision-Making (Capacity) (Amendment) Bill 2021, has Dr. Muldoon's office engaged with the Joint Committee on Children, Equality, Disability, Integration and Youth on that Bill? Would it consider sending in a submission on the code of practice of the Decision Support Service? It is just something that came to mind.

Dr. Niall Muldoon

It is not something we have looked at but we will certainly take a look at it. We are aware of it and we are aware of the crossover with this Bill. While I am not sure of the timetable in that regard, we will certainly take a look at it.

I thank the witnesses for coming in today. The presentations were excellent. Even though we have the information, to hear it in such detail was a real eye-opener for me. I thank the witnesses for coming in and for their very helpful contributions.

The joint sub-committee adjourned at 12.14 p.m. sine die.