Law Society call: 16 and 17-year-olds should be presumed to have capacity to consent to or refuse admission and mental health treatment
The Law Society of Ireland has warned that continued delays to reform the Mental Health Act 2001 means that “if a child actively resists detention for mental health care or treatment, even if they have the capacity to consent and voice objection, they can be detained with the consent of their parents. In this regard, a 17-year-old teenager effectively has the same rights as a seven-year-old child.”
Detention of children
Chairperson of the Law Society’s Mental Health Law and Capacity Task Force, Áine Hynes SC said, “Under the current Mental Health Act, no consideration is made for the evolving capacity and maturity of a child. Regardless of age, a person under 18 years can be deemed a voluntary patient if consent is provided by their parents. In reality, this means that when it comes to mental health care and treatment, a 17-year-old teenager effectively has the same rights as a seven-year-old child.”
“For example, while a person aged 16 has the right to provide consent to medical treatment, the Mental Health Act does not include such provisions and instead places the burden of consent on parents. This means that if a child actively resists detention for mental health care or treatment, even if they have the capacity to consent and voice objection, they can be detained with the consent of their parents.”
“We strongly believe that children aged 16 and 17 years should be presumed to have capacity to consent to or refuse admission and treatment. Children in Ireland have a constitutional right to have their views heard, equal treatment and access to justice. Provisions related to children should be updated to make clear that children have particular needs and rights to be upheld,” she explained.
This and other key issues were detailed in the Law Society’s recent submission to the Public Consultation on Draft Legislation to Update the Mental Health Act 2001.
Reform progress stalled
“The Law Society is urging the government to finalise the drafting of the update to the Mental Health Act 2001. While we welcome the recent call for submissions on the views of the Expert Group by the Department of Health we are however, concerned at the lack of progress in the seven years since the then government called for a general scheme to be drafted to reform this important legislation. There is an urgent need to prioritise and reform mental health services and this starts with fit-for-purpose legislation that protects the rights of the most vulnerable in our society,” said Ms Hynes.
“The Mental Health Act was considered to be progressive legislation when it was drafted but legislation needs to be implemented, resourced and adapted following evidence-based reviews of how this works in practice. Unfortunately, this has not been the case to date, which has left many vulnerable children, who would otherwise have a say in their medical treatment, without adequate statutory safeguards for their mental health treatment.”
“The legislative amendments based on the Expert Group recommendations are urgently needed but without progress on this, we will continue to fail children by not granting their rights to be heard in matters regarding their detention, care and treatment. The Law Society is committed to working alongside the Department of Health and stakeholders across Government to safeguard the rights of children,” Ms Hynes concluded.
