Mental Health Bill 2024: Committee Stage (Resumed)
Seanad Éireann — 2025-12-09
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Mary Butler (FF), Waterford

This brings me back to my initial conversation last week when I was here for a couple of hours. The reason there are over 300 amendments is because it is at this Stage of the Bill that we are trying to align with the Childcare Act 1991 and the Department of justice. The majority of the work in relation to the Bill, its purpose and the reasoning behind it, was more or less in place. I am going to explain a little bit. We did not speak last week about care orders because I knew we would get to it but I think this will be helpful for us all as we try to understand the way it aligns.
The Childcare Act 1991 is the responsibility of the Minister for Children, Disability and Equality. This Bill only speaks to circumstances where those children are accessing mental health services. Any more general issues with children in care, guardians ad litem or what happens to children outside of mental health services is beyond the scope of this Bill. I have to be clear that I will not be speaking to that. I will only be 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 Childcare 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 1991 Act. The Bill provides for admission and consent to treatment for children who are the subject of care orders under section 18 of the 1991 Act. This means that Tusla is the legal parent of the child. When a child is subject to a care order, he or she can be admitted where there is 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 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. I have dealt with voluntary admission of children under 16 years of age; this where there is voluntary admission of children over 16 years of age, when 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 who are 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. Similar to point 1 above, in such cases, an application is made to the District Court to ensure there is court oversight in place for the child.
Then we have involuntary admission of children. A child who is the subject of a care order can be admitted involuntarily 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 who are the subject of a 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 Childcare 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 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.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2025-12-09/debate/main
Retrieved: 2026-08-14T04:54:26+00:00
Sitting date: 2025-12-09