Sinead Kearney, Partner & Head of Health Services, Byrne Wallace

1. Sinéad Kearney
13 September 2011

2. Table of Contents

3. The Child and Capacity
• 0 – 16 years and 16 – 18 years
• The Gillick test – Assessing Capacity
• Developing Trends in Ireland
 the “D” case
 Mc K v Information Commissioner
 TD V EHB

4. Mental Health Act 2001
Voluntary Admission
• “Voluntary” admission of a child to Approved
Centre
• Voluntary Patient - Defined
• No independent safeguards
• Mental Health Commission View
• Storck v Germany 2005 43 EHRR 96

5. Mental Health Act 2001
Involuntary Admission
• Application to District Court
 Involuntary admission section 25 (1) with Psychiatric report
 Involuntary admission section 25(3)
 Request for examination by Consultant Psychiatrist
• Order valid for 21 days, can be extended

6. The Mental Health Act 2001
• Interplay between MHA 2001 and Child Care Act 1991
• Safeguards?
 Guardian Ad Litem can be appointed section 26
Child Care Act 1991
• Concerns?
 No Mental Health Tribunal Review
September 20, 2011 6

7. Child Care Act 1991
• Children at Risk
• Emergency Care Orders, Interim Care Order, Supervision Orders,
Care Orders
• Interventions can mean limited consent to psychiatric
examination, treatment or assessment e.g. Out-Patient Treatment;
But
• NOT to involuntary admission pursuant to section 25
September 20, 2011 7

8. Non Fatal Offences Against the
Person Act 1997
• Section 23 a child can consent to surgical,
medical or dental treatment
• Predates Mental Health Act 2001 but no
reference to S23 of NFOAP or MHA 2001
• Dilemma? Err on side of caution
• Mental Health Commission Code of Practice
September 20, 2011 8

9. Case Study 1
Child in Parental Care
Stephen, age 17, has a history of BPD. He has
become elated, is not sleeping and is socially dis-
inhibited. His parents recognise this developing
pattern and agree that admission is warranted before
he gets out of control as in the past. Stephen does
not agree and does not consent.
What is the procedure?

10. Case Study 2
Child in Voluntary Care
Patrick, age 15, crashes a car, expresses suicidal ideation,
brought to hospital, behaviour escalate, fire setting
disrupting other children on the Ward, he is in voluntary
care with the HSE.
What is the procedure?

11. Case Study 3
Child on Interim Care Order
Kayla is 16 year old and on an Interim Care order having
been sexually assaulted at home. Presents as frail,
underweight, not eating, low BMI, suicidal ideation self
inflicted cuts on her arms.
What action should be taken?

12. Case Study 4
Child in Parental Care (Parents Separated)
• 17 year old has become withdrawn, is not sleeping or
eating. He refuses to engage with the family and has
said that his mother is poisoning him (parents are
separated). He is often heard shouting in his room.
• His mother is worried and wants him admitted but he
refuses and his father also refuses.
What should happen?

13. Case Study 5
Child on Care Order
• Shirley a 16 year old who is the subject of a care
order and is in a foster home . She has become
withdrawn, is not sleeping or eating. Late one
night she begins to behave in bizarre fashion,
hearing voices, singing . Her foster parents are
very concerned for her welfare and want to admit
her to an approved centre
What should happen?

14. What Next?
• Safeguards must be built in
• Reform in line with the Law Reform
Commissions recommendations
• Compliance with our international
obligations on giving children a voice
September 20, 2011 14

15. THANK YOU