Law Society criticises failure to reform Mental Health Act

Someone under 18 can be detained without their consent but with consent of their parents

Áine Hynes SC says current mental health legislation gives  no consideration to the evolving capacity and maturity of a child. Photograph: Getty Images

Áine Hynes SC says current mental health legislation gives no consideration to the evolving capacity and maturity of a child. Photograph: Getty Images

 

Young people under 18 years of age can be detained without their consent, but with the consent of their parents, for mental care treatment, because of a continuing failure to reform the law, the Law Society has said in a statement.

The failure 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 effectively has the same rights as a seven-year-old child,” it said.

The chair of the society’s Mental Health Law and Capacity Task Force, Áine Hynes SC, said no consideration is made for the evolving capacity and maturity of a child, as the law currently stands.

“Regardless of age, a person under 18 years can be deemed a voluntary patient if consent is provided by their parents.”

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, she said.

“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, to have equal treatment, and to access to justice.

The need to reform of the provision on age and other key issues were detailed in a Law Society submission to a public consultation prior to an intended reform of the Mental Health Act 2001.

However, the reform programme has stalled, the society said, and it urged the Government to finalise the drafting of the updated Act.

“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 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,” she said.