Opinion: reform of current services is urgently needed, especially around accountability, advocacy and complaint procedures
The failings identified in the South Kerry CAMHS Review published last week highlights the inadequacy of mental health services and supports available to children and young persons in Ireland. These failings fit into a larger picture of ignoring the voices of children, young persons and their families, insufficient resources, poor governance, and inadequate mental health legislation.
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From RTÉ Radio 1's Today With Claire Byrne, Barry Lenihan reports on the problems with the South Kerry Child and Adolescent Mental Health Services
Last July the Government published the heads of a bill, which details proposed changes to the Mental Health Act 2001. While many of the pending reforms are to be welcomed in strengthening the rights of children, young persons and adults, gaps will still remain that put people at risk.
Problems have been highlighted with the provision of mental health services for children and young persons for many years. In 2016, the UN Committee on the Rights of the Child criticised the lack of comprehensive legislation on children's consent to and refusal of medical treatment in Ireland. Specifically, the provisions regulating the admission and treatment of children have been criticised for failing to safeguard their human rights. It was recommended that Ireland take measures to improve the capacity and quality of its mental health services.
It is clear that the provisions in the 2001 Act relating to children and young people are wholly inadequate in safeguarding their rights. We know this because numerous reviews and reports have stressed this over many years. The proposed new bill contains important changes which, if and when implemented, should improve the law significantly. Yet the proposals in key areas are inadequate, falling short in protecting the human rights of children and young persons and missing the opportunity to strengthen governance and accountability.
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From RTÉ Radio 1's Morning Ireland, John Farrelly from the Mental Health Commission on what happened at the Child and Adolescent Mental Health Services in South Kerry.
Why independent advocacy is important
The UN Committee on the Rights of the Child criticised the lack of child-focused and accessible advocacy and information services for children and young persons in Ireland. Advocacy is essential as children and young people using services or who are detained under the 2001 Act are in a particularly vulnerable situation.
The Heads of Bill recognises the need for advocacy and provides a definition of an advocate and recognises the entitlement to engage an advocate by themselves or with their family. Dispute this, it does not provide for advocacy services. The availability of a professional, independent, and adequately resourced advocacy service would ensure that the voice of children and young people is heard and included in decision-making about their health. This is required by international human rights law and needs to be included in the amending legislation.
Dealing with direct complaints
A further shortcoming with the law reform proposals is the lack of provision for direct complaints about mental health services. Regrettably, the 2001 Act does not provide for a dedicated independent direct complaints mechanism about mental health services.
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From RTÉ Radio 1's Drivetime, RTÉ reporter Barry Lenihan, Minister with Special Responsibility for Mental Health and Older People Mary Butler TD, Keith Rolls from Coleman Legal and 'Kate', the parent of a child on the South Kerry Child and Adolescent Mental Health Services fallout
In the absence of a specific complaint’s mechanism persons using mental health have to lodge complaints to the HSE’s internal complaints mechanism. If they are dissatisfied with the outcome of their complaint the matter can then be referred to the Ombudsman. Persons who use mental health services have highlighted the ineffectiveness of these processes.
Failure to ratify
Ireland signed the UN Convention on the Rights of Persons with Disabilities in 2007 and eventually ratified it in 2018, but disappointingly deferred ratification of the Optional Protocol to the Convention. The Protocol essentially provides for two procedures to strengthen compliance with the Convention: the individual communications/complaints procedure and the inquiry procedure.
The failure to ratify means that Ireland is an outlier amongst EU member states (along with the Netherlands and Poland) in not ratifying. This undermines Ireland’s commitment to implementing and realising the rights contained in the UN Disability Convention.
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From RTÉ Radio 1's Morning Ireland, Dr Susan Finnerty, Inspector of Mental Health Services, says more has to be done to help people with severe mental health problems
Furthermore, this failure to ratify the Protocol also means that children and young persons are denied access to the mechanism to make individual complaints directly to the UN Disability Committee (the body with responsibility for monitoring Ireland's compliance). As a result, an essential layer of accountability is absent.
The reform of the 2001 Act needs to provide for an independent direct complaint’s mechanism for mental health services. The Inspector of Mental Health Services could be conferred with statutory responsibility and powers to receive, investigate, and determine individual complaints relating to mental health services and consideration should also be given to the creation of a mental health ombudsman.
What needs to be done next
Overall, the provisions contained in the Heads of Bill as they relate to children and young persons are to be welcomed. In particular, the part of the bill dealing exclusively with the admission of children to approved inpatient facilities under the Act will be a significant improvement when implemented. This should address the disjointed approach and make the legislation more accessible for children and young person’s subject to the legislation, their families, mental health professionals and other stakeholders.
However, there are several areas where the rights of the child can be strengthened in the amending legislation. The Mental Health Commission concisely summed up the South Kerry CAMHS Review as a "catastrophic failure of oversight, supervision and accountability". The provision of an independent advocacy service and the creation of a direct complains mechanism are key components in meeting international human rights obligations and ensuring adequate governance and accountability within mental health services.
For a comprehensive discussion of some of these issues, you can read this Report co-authored with Dr Fiona Morrissey for Mental Health Reform.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
