Victor Boyhan Raises Rights Concerns Over Mental Health Amendments

Thank you, Minister, just in this group of amendments, these are effectively all your amendments, actually, I think this group is five, so it's amendments ten, and I'm just going to briefly touch on, we don't have to go through them because I'll explain as I'm going along, so ten, twenty-six, forty-six, fifty-three, fifty-four, fifty-six, sixty-nine, seventy-seven, seventy-one, seventy-two, seventy-three, seventy-eight, seventy-nine, eighty-one, eighty-two, eighty-three, eighty-five, eighty-six, eighty-seven, eighty-eight, and there's a reoccurring theme on these, and they're fairly small amendments, and, of course, I wanted to very outset to thank you and your officials for sending on some details this afternoon in line with what we had asked for, and I haven't had time being studied because they came late, but I want to thank you for them, and I've got the grasp of them. I suppose a common theme for me throughout all of this legislation and this bill is the issue of the UN Convention of the Rights of the Child, and remember we had some discussion about this, about the definition of a child, and clearly there's an issue of consent for 16, 17, and 17-year-olds in terms of medical consent, where they have capacity, of course, and then we have the Convention on the Rights of the Persons with the Disabilities, and if you would be very familiar with your own explanatory memorandum to this bill, and, of course, these two primary pieces that we're saying, Ireland are signatories to this, to these articles, and I suppose I really need, let's keep this all very simple, I'm seeking reassurances from you that this legislation, and particularly with this frame of amendments, is, I mean, we'll talk as we go through the legislation, but it's going to be my reoccurring theme in this, because I think it's really important. We've had, and I've had individual representations, and I've had advocacy groups, and I want to welcome all the people that are here today, but I also want to welcome the people that are tuned in to these proceedings. So we have to always be concerned that any legislation, there's no consequences or negative consequences in terms of anything we might enact, and you'll be familiar with the UN Convention on the Rights of the Child. So that clearly sets out the various articles, the definition of child, non-discrimination, and so on. I'm not going to repeat it all here. And then, of course, State parties should take all the necessary measures to ensure that the full enjoyment of children and disabilities of all human rights and fundamental freedoms of equal basis for other children is all set down in Article 7. Again, referred to, if you go back to your explanatory memorandum that is accompanying this bill, so clearly your legislative people and the draftsmen have looked at this in some detail. They're certainly conscious of it, because we see that echoed in the explanatory memorandum. So can you give us assurances here in relation to this series of amendments, that you have every confidence, and you have been advised professionally and legally, that they will be fully compatible with these two important documents, conventions. We are signatories to them. We should not be at odds. We cannot be at odds with these two very, very important statements. So I'd be interested to hear what you're thinking is on that, and to have your assurances on those. I'll try to respond to everyone in the main. So what we're speaking about in this particular part of the bill is adults, involuntary detained. So that's the first point to get it very, very clear. So, Senator Ruan, in relation to the current bill, 2001, as I stand here now, the review is up to six months under the existing Act. We have reduced it up to, I didn't say up to, and I should have, up to three months under the new bill. So there has been a significant move in relation to that. The other point I want to make is, I have never come across a clinician who wants to involuntary detained somebody, just for the sake of it. You know, and I'm not saying that you're saying that for one minute. But, you know, we all know that mental health facilities for people who are detained and, you know, and involuntary, people who are involuntary detained, and people who are involuntary, any clinician goes to work every day to make sure that person can get as well as possible and go home again, back to their family, or whatever. Right. So just to clarify that, so the current bill, 2001 bill that we're working off at the moment, is up to six months under the existing Act. And this is changing it up to three months under the Act that I am trying to get through at the Shannon. The three months is an appropriate amount of time. Psychiatrists are compelled to discharge a person when they do not think a person has a mental disorder anymore. So while we're waiting for the tribunal to happen, a person's status can change from involuntary to voluntary, and in a lot of cases, and from my knowledge of my lived experience, when a status change in a lot of time, the person who has been involuntary detained that comes that changes over to voluntary may make that decision to leave the facility themselves. That happens a lot. And people can make that decision. So to go back to Senator Stevenson's, the rationale. So the rationale is very, very clear in my mind. Currently, we're using a situation where we allow up to 21 days for the review or the tribunal, as it's known, to take place. If it was to change up to 14 days, you would be expecting, in order to meet the demand and the amount of consultants we have to attend the tribunal. And, you know, just so people understand exactly what it is. The review board includes an examination of the person by an independent consultant psychiatrist. So that's what we're talking about. The examination of the person by another mental health care professional for the purposes of a psychosocial report. Consultation between the person and his or her legal team. This is where it is at the moment. And then the actual hearing itself. So that all takes time. And I don't see it being possible that we would be able to fulfill the act if we were to change it to 14 days, that we would be able to do that on day 8, 9, 10, 11, 12, 13, up to day 14. Because I certainly do not believe that a person who was involuntarily detained might be well enough on day 8, 9, 10, 11 to put their best case forward. So I will be pressing these amendments. Thank you. Mr. Minister, I mentioned to you two things. You said we were talking about children, we were talking about adults as well. But anyway, I mentioned about the, of course, the UN Convention on the Rights of Persons with Disabilities. I also mentioned to you the UN Convention on the Rights of the Child. And I asked you for this series of, which is effectively Group 5 series of amendments, mostly in your name. They are your amendments. You brought them to the House for our approval on consideration and debate. And I asked you if you could clarify and give us reassurances, absolute reassurances, because this is the key plank for a lot of people here, is their concern that people's rights are protected, human rights are protected, their rights that are enshrined in the UN Conventions. And I think they are important. And if you could give absolute clarity that you have the confidence, that you have had that advice, that you have had that reassurance, that we are fully, what these amendments are put to us here today, that you can give that categorical assurance on the record of this House, that they are fully compliant with those two UN, important UN Conventions. Thank you for all the Senators for their perspective in relation to this particular piece. So just a couple of points, Senator Boyne. The piece in relation to human rights, you have moved an amendment on 36A and we will come to it soon, I hope. And then we will discuss it at that stage, because it is not where is what you are asking, of course, in relation to the entire bill, but I will discuss it at that stage, 36A, when you move that amendment. In relation to, I think there are a couple of things that have been lost in translation here. We know for a fact that since 2001, the review can happen up to day 21. There are a few differences in the new bill. So the first main differences, I suppose, the orders after the review is reduced from up to six months to up to three months. The second piece is that the bill states that any person, voluntary or involuntary, adult or child, assessing inpatient services, may name a family member as their nominated person. I think that is really, really important as well, that they have that support. And that was something that was long called for. And the third piece is, and I will repeat the fact that I am not a clinician, I am not, but I do have lived experience in relation to mental health and family involvement in mental health services, and I also have common sense. And I would certainly believe that somebody who is involuntary detained, we are talking about a very small cohort who are involuntary detained, not voluntary, but involuntary, who are very, very unwell. And if they get to the stage by day 14 that they still are involuntary detained and need the review, I would believe that they would still be quite ill at that stage. And they wouldn't, if they had been involved, if they were, if they were well enough, their, their, their, their, their, the detention piece would already have been revoked. So, I close on that. Thank you. I just want to come back to the Minister to be sure, to be clear on something that we're all on the one page. We are discussing group five amendments, and I call them all out, and they're in your name. And at this point, I'm very aware that I have an amendment 36A, and you're very aware of it, and thanks for reminding me. So, of course, you'll be dealing with that. I'll be pushing the case, and you'll be responding according to your, you know, with your own view and considered opinion, and I respect that too. But we're now dealing with this set of amendments. This is the process. We have standing orders. This is what's been agreed. I didn't agree these groupings. I didn't put these groupings together. So, I just deal and work with what's presented to us. So, it's this particular group of amendments that you're pursuing, you're endorsing, and all I'm asking for is the absolute clarity in relation to this section. If we have to repeat the thing five times, so be it. We can repeat the thing five times. But we have to take it incrementally. These are the amendments that you have before us in this grouping, group five, and it's just absolute clarity from you in relation to these. I don't want a qualified support or a qualified endorsement. I want an absolute endorsement that this group five of amendments that we are currently discussing are fully in compliance with the UN Convention of the Rights of the Persons of Disabilities and the UN Rights of the Child. We're signatories. This legislation cannot proceed if it's in conflict, if it's in conflict with these UN signatures. You might suggest it can, but I'm putting it to you respectfully, Minister. If they cannot proceed, I have sought advice on it, and I'm happy to share it with you. These are signatures that the Irish Government have signed up to these conventions. They're not for us to decide to pick or disregard, because this is primary legislation that we're doing here. Primary legislation. And I'm somewhat surprised that you're suggesting that you'll discuss it later. Of course you'll discuss it later, but I'm asking you in relation to this set of amendments to give that assurance. And you either can do it or you can't do it. I'll come back after I listen to that response. Very much. Thank you. So in relation to Senator Boyan, I will speak about your question when I get to Amendment 36A. I'm speaking to these amendments now. Your amendment refers to the entire Bill in its entirety, in my opinion. Not just so. I'm not going to discuss it in every single section. I will deal with it. 36A. When we get to it, I will deal with it then. In relation to Senator Black's comment, if you were to look back over the last, since the 2001 Act came in, the majority, almost well over 90%, is my understanding, of the tribunals happened between those days, 14 up to 19. So just to try and clarify it there, it was decided to include it from day 14 to 21. Minister, that's your view. That's your view. I am asking you to comment now. This is when we have them. We vote on amendments separately. I'm not going to anticipate what you might say later on. You can say it all again five times if you want to. I respect that. You're the Minister. But I am putting it to you on the record of the House that you're either unwilling or unable or don't know what the situation is. I have asked you two very simple questions and I'm going to say them again. So there's no ambiguity about the questioning. No doubt what I'm asking. Ireland is the signatory of two conventions. The UN Convention on the Rights of the Persons with Disabilities. I refer to Article 7, but I'm now going to refer to the entire convention. Ireland is also a signatory to the UN Convention on the Rights of the Child. We are signatories to these. We are obliged. We are bought into them. Previous governments. It's established practice. And what I'm asking you, can you give me the assurances? You're either can or you can't. In relation to the whole fleet of Group 5 amendments, that we are fully compliant. Now you're suggesting that no, you can't do it now. In the section that's allotted under our standing orders and by the Secretaries and agreed, whoever agrees them, you're not in a position to comment. I have a question that I've asked you. You're saying you're happy enough to discuss it later, but I'm asking you to discuss it now. I'm asking you to comment on these ones now. Not the broader bill. You can do what you like, quite frankly, in terms of your scope of debate. You can't do what you like in terms of legislation. We accept, amend or reject. There's a vote. You bring a proposal. So let's not be knocking our heads here and let's have no misunderstanding. I've done a lot of bills. I know you do. I've put a lot of bills through in the last 10 years. Of course you're here 10 years. Let's not get personal and get ridiculous. I'm here to scrutinise the legislation in this House. You're the Minister putting this through. 300 amendments you're putting through to a bill. You've told us already that you've spent four years. You've vast experience in it. I'm not doubting any of that. But your amendments, they're not mine. I have the right to scrutinise and ask you questions. I'm asking you finally once more. You either don't know, you're not capable of it, or you don't want to share it with us. I'm certainly capable of it. Let me finish. You can respond. I'm certainly capable of it. So please ask the question, can you provide an answer to these two questions I've asked? Are we fully compliant in relation to these particular amendments? That's all I'm asking. I can just put on the record, last week I was accused of not having compassion. Today I'm after being accused of not being capable. I believe these amendments are in keeping with human rights standards. You hardly think or imagine that we would bring forward a bill that wasn't in keeping with human rights standards. You hardly think that an expert panel in 2014 put all the work into putting a bill in place. You hardly think my officials behind me have worked for five years to bring in a bill that wouldn't be in keeping with human rights standards and is compliant with the ratification of the UN Convention on the Rights of Disabilities and the Rights of Children. Do you honestly think in 2025 that I would come before the Shannon with a bill that wasn't doing that? A few things she said there. I had indicated to speak back on it. Minister, I do not suggest you're incompetent at any point. I just want to be clear on that. I do have a lot of respect for you. I do have your knowledge. I want to put that on the record, genuine, because I'm sincere about that. I don't doubt your ability. I have every confidence in your ability, and you have been at this for years. I simply asked you a question, and in the calmness of it, I'm going to say it again. I'm not going to repeat all that again, but just to say, I asked you the two things about compliance with the European Convention on the Rights of the Child and the Convention on the Rights of the Person with Disability, and of course, your response minister, and I quote, I've written it down, do you honestly think we would do such a thing? Do you honestly think we would do that? Well, I don't, I don't, I'd hope that you wouldn't, but all I simply wanted you to say, they are fully compliant. Well, hang on, so you're happy, that's what we got, we're getting places, you know, so we're happy to say, you're happy to say, and give, I started off by saying, can you give me the reassurances that these, or these, just these amendments, these amendments are fully compliant with that, and you're, you're happy to stand over and say yes. That's, that's happy, I'm happy with that, if that's, but let's, let's keep it, the language simple, you know. No, the language is very simple. Okay, well, okay, sorry, sorry, I'm still standing, but when I sit in the seat, I'm just saying, so that's all I'm asking minister, and can we, can we just move on? That's, it took a long time to get that simple, simple response. So they are compliant. I'm happy if there's the understanding that they are fully compliant with the two UN conventions, if you could just say that. So I, no, I won't, you won't put words into my mouth, I say what I said already that you didn't write down, and I'm capable of saying it again. I believe these amendments are in keeping with human rights standards, and is compliant with our ratification of the UN convention on the rights of disabilities and children. Thank you, minister. Minister, just in relation to those two previous senators who spoke there, the issue of that, that right of a special advocate, particularly for these group of children, 16 and 17 years, as you know, are children, and I know the difference in terms of medical and consenting around medical issues, as you already explained, and I already know, and we all know here. But this, this importance in terms of advocacy that you have said is central plank to your reform in this bill. And this is a particular group. And we know from the Children's Ombudsman, we know from other agencies, they have strongly advocated that every person, every person indeed, accessing mental health services, shall have the way to access to independent advocacy support, to support them. And I said to you again last week, there were many people that are on our streets tonight that are children. They have complex needs, they have many needs, they have diverse needs, they have very little or no support. And whose interest best prevails? That of the HSE, that of the people that are entrusted to care for them, or meant to be entrusted to care for them, or the psychiatric services, or their guardian. And what right, what's the weighting in terms of that right and the right to prevail? I think you understand what I'm coming at. And it really is, how can we ensure that this cohort of very exceptionally vulnerable people are protected and have independent advocacy that puts them at the heart of the decision-making process? I suppose this brings me back to my initial conversation last week, when I was here for a couple of hours. And the reason why there is over 300 amendments, because it's at this stage in the bill now that we're trying to align it with the Child Care Act 1991, and we're trying to align it with the Department of Justice. So the majority of the work, I suppose, in relation to the bill, you know, and the purpose of the bill, and the reasoning behind it, was more or less, I suppose, in place. So the child, I'm just going to explain a little bit, we spoke last week, but we didn't, about care orders, because I knew we'd get to it. But I think this would be helpful for you, for us all, trying to understand the way it aligns. So the Child Care Act 1991 is the responsibility of the Minister for Children, Disability and Equality, and this bill only speaks to circumstances where those children are accessing mental health services. Any more general issues with children in care, with guardians ad litem, or what happens to children outside of mental health services is beyond the scope of this bill. And I have to be clear, and I won't be speaking to that, I will be only speaking to when a child interacts with the mental health bill. Amendments to the mental health bill only relate to how those children access mental health treatment and do not contain substantive changes to the Child Care Act 1991. At the request of clinicians in the HSE and the Department of Children, Disability and Equality, the bill explicitly sets out provisions in relation to children subject to certain orders under the Child Care Act. The bill provides for admission and consent to treatment for children who are the subject of care orders under Section 18 of the Child Care Act 1991. This means that Tusla is the legal parent of the child. So when a child is subject to a care order, he or she can be admitted. Voluntary admission of children under 16 years of age. The child is under 16 years of age and Tusla consents to the admission. In these cases, an application is made to the District Court to admit the child. This is to ensure that there is court oversight in place for a child moving from the care of one state body to another. Then we have a situation where there is voluntary admission. So I have dealt with voluntary admission of children under 16 years of age. This is voluntary admission of children over 16 years of age. The child is over 16 years and he or she agrees to the admission voluntarily. Then we have parental admission of children over 16 years lacking capacity. Where the child is over 16 years of age but lacks the necessary capacity to consent to admission, Tusla can consent to his or her admission to his or her admission. Similar to point 1 above, in such cases an application is made to the District Court to ensure that there is court oversight in place for the child. Then we have Involuntary admission of children. A child, the subject of a care order, can be admitted involuntary on the same basis as any other child. Where the HSE believes the child has a mental disorder that meets the criteria for involuntary admission. Regarding consent to treatment for children the subject of the care order, it works exactly the same as for children who are not subject to a care order. The only difference is that Tusla makes decisions on behalf of the child that would otherwise be made by the parent or guardian of the child. Even though these provisions affect a very small minority of children, a huge amount of care and work has gone into ensuring the appropriate alignment between the Bill and the Child Care Act 1991. At present, any child who is subject to District Court proceedings under Section 25 of the Mental Health Act 2001 is appointed a guardian ad litem for those court proceedings. The amendments to this Bill do not change that policy but instead reinforce it and they make the entitlement more explicit in the bill itself. The primary role of the guardian ad litem is to ascertain and communicate the child's views to the court and to make recommendations in the child's best interests.