Solicitors' body urges overhaul of mental health consent for older teenagers

The Law Society said 17-year-olds essentially have the same rights as seven-year-olds if they resist detention in mental health facilities in that if their parents consent, that is all the law requires. Stock image

Teenagers on the cusp of adulthood need greater rights when it comes to mental health care, the Law Society has said.

The solicitors' body said 17-year-olds essentially have the same rights as seven-year-olds if they resist detention in mental health facilities in that if their parents consent, that is all the law requires.

In its submission to the public consultation for the drafting of updated legislation to the Mental Health Act 2001, the Law Society of Ireland said there had been a lack of progress in the seven years since a previous government called for updated legislation.

“Under the current Mental Health Act, no consideration is made for the evolving capacity and maturity of a child," said chairperson of the Law Society’s Mental Health Law and Capacity Task Force, Áine Hynes SC.

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.” 

She pointed out that a person aged 16 has the right to provide consent to medical treatment – a provision not in the Mental Health Act, which instead places the burden 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,” Ms Hynes said.

The senior counsel added: “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 said the Law Society was 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," Ms Hynes said.

“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.”