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Amendment No. 4 was tabled by my hon. Friend the Member for Bridgend (Mrs. Moon), and I will listen carefully to what is said about it. Her amendment would increase safeguards for 16 and 17-year-olds by
ensuring that their cases are referred to the tribunal by hospital managers after one year, where the patient has not used their right to apply or their case does not otherwise come before the tribunal. I said in Committee that I was sympathetic to the intentions behind the amendment but that I wanted to look further into some of its financial and operational implications. My officials recently came back to me on that. They reassured me that the impact would be operationally manageable for both hospitals and the mental health review tribunal, so at this stage I am supportive of my hon. Friend’s amendment. I look forward to hearing her speech, and any other contributions on her proposal.
Amendment No. 83 would extend the provisions in clause 40—which was inserted by a Government amendment in the other place—to under-16s who are competent to consent to the making of arrangements for their informal admission to hospital for the treatment of mental disorder. That raises complex issues, and an amendment to the Bill is not the right way to address them. Most 16 and 17-year-olds will be able to understand, and make an informed decision about, being admitted to hospital except where they lack capacity, but that is not the case for under-16s. Each case needs careful consideration. The Government consider that the position of under-16s—both those who are Gillick-competent, and those who are not—can best be set out in guidance in the code of practice. Guidance can go into this difficult area in much greater detail and can be updated more easily in line with developments in case law. Therefore, I ask the hon. Member for Romsey (Sandra Gidley) to withdraw the amendment.
I hope that the Government amendments will be welcomed by all Members. They are the result of fruitful and constructive discussions by various organisations—and also by Members of the other place, which I greatly appreciate. I will listen carefully to the arguments—which I am sure will be very persuasive—of my hon. Friend the Member for Bridgend, but I do not at this stage accept the amendment of the hon. Member for Romsey.
Tim Loughton: I find myself for the second time this evening congratulating the Minister on having listened—at long last, and despite having thrown a bit of a strop in Committee on this subject—and on having returned with worthwhile amendments. Although they do not go explicitly as far as some of us asked, their spirit is very much in keeping with what we hoped for. I join her in paying tribute to the excellent work of Lord Williamson in another place, who to a great extent kicked off the consideration of this issue by introducing a measure under which three conditions were to be met: admission to age-appropriate settings, and medical assessments by a CAMHS specialist and by a clinical supervisor specialist. That provided a good starting point to lay out the importance of this subject; many Members of this House and of the other place, and many people in YoungMinds and other mental health organisations, feel strongly about it, as do many young people suffering from mental illness.
I also join the Minister in paying tribute to YoungMinds and the sterling work of Kathryn Pugh, who follows our deliberations closely. I can say that without having to declare an interest—unlike the hon.
Member for Southport (Dr. Pugh) if he wishes to reiterate that praise when he comes to speak.
I also pay tribute to the report of “Sir 11 million” as we now must call the children’s commissioner. “Pushed into the shadows: young people’s experience of adult mental health facilities” reported some shocking testimonies of the experiences of young people who had found themselves in traumatic periods of their lives in wholly inappropriate and very depressing and traumatic environments. In a variety of witness evidence that Members of both Houses received, we heard some brave and devastating testimonies, particularly from teenage girls, about such experiences in adult acute mental health wards. They told us about having to use mixed-sex bathrooms and about being in wards with older men who had committed violent acts, and they also told us that no education facilities were provided for them. At important stages in their educational career they found themselves in a mental health institution with no way of getting back to some degree of normality by furthering their education. One of our witnesses said that eating was the only recreation. We also heard about problems to do with siblings aged under 18 not being able to visit.
The testimony of one witness, Antonia, was especially stark, and it might be helpful if I repeat some of it. She said that in order to be in an adolescent service,
“I would rather go to Scotland than be 10 minutes down the road from my home.”
That serves to emphasise how important it is to have age-appropriate treatment. Even if she had to go a long way to get it, that was preferable to being placed more conveniently closer to home in an inappropriate setting.
I am pleased that the Government have taken on board the comments that have been made, and that the amendments cover all those aged under 18. There was a big argument about how we address 16 and 17-year-olds—it is completely inappropriate for many in that age group to be placed in adult wards, but for some of them it is more appropriate. In our amendments in Committee we were at pains to retain the flexibility that 16 or 17-year-olds could be admitted to adult wards if appropriate. However, that must be decided on the basis of its appropriateness to their therapeutic benefit and recovery. I welcome the fact that all under-18s and voluntary and detained patients will be covered and that reference is made to the fact that a suitably qualified practitioner should be consulted at the assessment prior to admission.
The code of practice will need to explain what a suitable environment is—I believe that it will do so—and also provide an explanation of the different needs of a child. Another matter that must be addressed is the placing of a duty on commissioners to inform local authorities where beds have been commissioned. Primary care trusts and health boards will have to tell local authorities where CAMHS beds have been commissioned for the local area.
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I think that we are happy to take the timing of the enactment of this provision on trust, just as we took the Minister at her word in Committee when she
promised to look at this issue and come back with something more definitive, which she has now done. I realise that some perverse incentives are potentially built in, in that areas that are more advanced in their provision of CAMHS facilities might take their foot off the gas if they are told that everything has to come in by a certain date; we need to prompt the less advanced areas to make sure that they provide those facilities. I know that there is a particular problem in Wales, for example, and the hon. Member for Caernarfon (Hywel Williams) might wish to refer to it in a little while.
All of us will feel let down and disappointed if we find ourselves coming back to this place in three years time to consider this issue and not a lot has changed. We need some strong assurances from the Minister that it will be a real priority for her Department, and we perhaps need some explanation of a strong performance-management framework to complement the legislation, so that we can judge whether progress is being made and how fast, and judge what extra support or attention might need to be given in the meantime. There is a possibility, as YoungMinds pointed out, that some adult hospitals might interpret the provision in such a way that it will lead them to refuse all under-18-year-old patients. The Friday night scenario of clinicians phoning unit after unit to find one that will accept an under-18-year-old would then get worse, particularly if PCTs or health boards did not have to ensure adequate provision.
We need a performance management framework or targets, although we are not great fans of the latter, to make sure that local partners understand their duty to commission sufficient capacity to ensure that age-appropriate facilities are available, and that local providers act in a manner that reflects the duty to co-operate to meet the needs of the child or young person, as enshrined in the Children Act 2004. This has got to be a joint effort and as the Minister rightly said, that is not going to happen if the services are not in place. This legislation should not be a substitute for services; rather, it should be a serious spur to the providers to make sure that services are available and appropriate and are being used properly, and that as many of our children and young people as possible are being picked up and given the appropriate treatment that they need and deserve.
We will track closely the progress of this measure, as the Minister has mentioned. I shall be interested to hear what the hon. Member for Hendon (Mr. Dismore) has to say about his new clause 8, with which I have a deal of sympathy because it places greater duties specifically on commissioners and PCTs, and not just on hospital managers. As I said, this is a team effort in which a joined-up approach involving everyone will be absolutely essential.
I have to say that the Government have moved a long way. They have listened to a very compelling argument that was started in Parliament in the Lords, but which was first started by charities such as YoungMinds and by brave young people themselves coming forward and saying that the current arrangements are just not good enough. As the Mental Health Act Commission found in its report, a young person a day was being inappropriately admitted to adult acute wards, and the therapeutic benefit of those establishments in terms of the appropriateness of treating such young people was
being seriously called into question. We are delighted that the Government have tabled these new clauses and we will certainly support them, but that support will not be given without a deal of assurances about how they are going to work in practice, and an assurance that the Minister is going to keep on the case of those responsible for ensuring that the measures become a reality.
Mr. Andrew Dismore (Hendon) (Lab): New clause 8, which is in my name, is designed to give effect to the recommendations in paragraphs 1.16 and 1.17 of the 15th report of the Joint Committee on Human Rights. Before I get to the meat of what I have to say, perhaps I might compliment my right hon. Friend the Minister on engaging very constructively with the Committee. Indeed, she gave lengthy and detailed responses to our two reports. Unusually, we reported twice on this Bill, which is very complex and raises some fundamental issues of freedom and liberty; that is why we felt it necessary to go into such detail. I am very grateful to my right hon. Friend for engaging so constructively with us.
In considering new clause 8, we need to look at the United Nations convention on the rights of the child, which the UK has ratified, and to recognise that the Bill impacts on and engages a number of the convention’s articles: article 3, on the need to recognise the best interests of the child when acting concerning children; article 12, which requires consideration of children’s views in decisions on issues affecting them; and article 19, which is designed to protect children from all forms of violence, injury, abuse, neglect, maltreatment or exploitation. Of course, the article 19 right also engages article 3 of the European convention on human rights.
I do not want to go into the underlying reasons for such a provision in detail; they have been adequately outlined already in the debate, particularly with reference to the children’s commissioner’s report, which has highlighted some of the serious problems and risks of abuse associated with placing children on adult psychiatric wards. We recommended the adoption of an amendment to ensure that young people receive age-appropriate assessment and placement, while at the same time not rendering illegal the placement of a child on an adult ward if that is the only way that their needs can be met. When we tabled the new clause, we had not seen the Government’s proposals, and I am delighted that they have tabled new clause 4, which represents a very satisfactory way forward as far as my Committee is concerned. In the circumstances, I do not propose to press new clause 8 any further, as my right hon. Friend the Minister has gone far enough to satisfy the concerns raised in our report.
Sandra Gidley:
The Minister was clear, in as much as she is not going to accept my amendment No. 83 and asked me to withdraw it. However, I thought it worth clarifying why I tabled it. It is an attempt to make it clear that children under 16 who are competent to make decisions can either consent to or refuse to agree to their admission to hospital for treatment of mental disorder. If such a child does not agree to being admitted to hospital, this refusal cannot be overridden by a person with parental responsibility. The amendment achieves this by extending the remit of section 131 of
the 1983 Act, which relates to informal admission, to cover children under 16 who are considered competent to make such decisions.
If the amendment is accepted, a person with parental responsibility would not be able to agree to the child’s being informally admitted to hospital if the child is deemed competent to make this decision and is refusing to be admitted. Where a competent child refuses to agree to admission to hospital for treatment for mental disorder, the mental health professionals involved would need to consider whether the criteria for admission to hospital under the 1983 Act are met, and in a small number of cases the powers under the Children Act 1989 may be appropriate.
As the Minister said, clause 40 of the Bill will amend section 131 of the 1983 Act. This was a Government amendment introduced in the other place, and it makes it clear that a 16 or 17-year-old who is capable of making such decisions may decide whether or not to be admitted to hospital for treatment for mental disorder, and that that decision cannot be overridden by a person with parental responsibility. That amendment was welcome and clarifies the position of 16 and 17-year-olds, but it is also important to clarify the position of Gillick-competent children. A child is generally considered Gillick-competent if they have sufficient understanding and intelligence to understand fully what is being proposed, and to be capable of making up their own mind on the matter.
The Minister said that this issue is complex, and I agree; indeed, that is partly the motivation behind tabling this amendment. There is great uncertainty in the law, and this is an attempt to clarify it. There is a certain amount of confusion among practitioners responsible for the care and treatment of children and young people with mental health problems. It has commonly been accepted that the refusal of a Gillick-competent child or young person to accept medical treatment can be overridden by a person with parental responsibility for them. There is case law to that effect. In the area of mental health, that has led to great uncertainty among professionals. If the young people have complex mental health care needs, the professionals have to rely on parental consent in the face of disagreement from the young person. In some cases, that uncertainty has caused delay in making the appropriate arrangements for the treatment and care of the young child or person. I am sure that we would all wish to avoid that happening.
If a parental decision overrules a child under 16, it can cause longstanding tensions between the child and parent. It is usually a stressful time for them and it seems unfair to place the weight of responsibility for that decision on the parent. There is also the question of respecting the rights of the child. If he or she is competent to make the decision, for example, to refuse admission to hospital, relying on parental consent to authorise the admission could breach the child’s right to liberty under article 5 of the European convention on human rights. That is acknowledged in the draft code of practice. Richard Jones, an expert in mental health law, states:
“It is likely that the Court would hold that a parental consent to the admission of a mentally competent child to a psychiatric hospital violates Art. 5 if the child objects to the admission.”
The Government’s approach appears inconsistent, because the Bill’s provisions on community treatment orders cover child community patients under 16 years of age, but do not address the problem I have described. The Department has previously indicated that case law has developed to give greater autonomy to children and young people and it is no longer the case that a person with parental responsibility can override the refusal of a child or young person, of whatever age, who has the capacity to make such decisions for him or herself. The indication was therefore that it was not necessary to include this issue because the case law is clear. For example, Lord Hunt of Kings Heath has said that
“more recent cases demonstrate the trend towards greater autonomy for young people.”—[ Official Report, House of Lords, 15 January 2007; Vol. 688, c. 545.]
The Government’s reasons for taking that approach are outlined in Lord Hunt’s letter to Baroness Walmsley of 16 January 2007. But the case cited by Lord Hunt— R v. Secretary of State for Health (Axon)—relates to consent to advice and treatment and the duty of confidentiality. It considered how medical professionals should deal with young people who are Gillick-competent and want advice on sexual matters, but who cannot be persuaded to inform their parents or to permit the medical professionals to do so. It does not address the issue of a competent child’s refusal of medical treatment.
The Minister mentioned guidance, and the most important point is that the draft illustrative code of practice to the Mental Health Act 1983, which has been published to help people to understand the Bill, removes references to the refusal of a Gillick-competent child or capable 16 or 17-year-old being overridden by a person with parental responsibility. However, it cites no case law to support that view nor does it provide any explanation for the change in approach. It would be helpful if the Minister could clarify when the guidance will be produced and what form it will take, because another publication, “The Reference Guide to Consent for Examination and Treatment”, issued by the Department in 2001, claims that it
“sets out in detail the current English law on consent”.
That document refers to parental consent overriding the refusal of a competent child or young person. Although it suggests that that power should be used rarely, it also highlights the lack of clarity on the issue by acknowledging that
“no definitive guidance has been given as to when it is appropriate to over-rule a competent young person’s refusal”.
The issue is very confused and medical practitioners receive conflicting advice in different publications by the Department. The amendment was an attempt to avoid further confusion and provide an explicit statutory provision that those with parental responsibility cannot override the competent refusal of a child—
Dr. Pugh: May I intervene simply to praise the work of YoungMinds and my sister-in-law, Kathryn Pugh, in particular? I would not want to be the only Front-Bench spokesperson not to do so tonight.
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Sandra Gidley: I thank my hon. Friend for declaring his interest, which he hinted at earlier.
Without amendment of the law, there will continue to be great uncertainty in this important area. It is an issue that affects relatively few children and young people, but for those whom it does affect it can have long-lasting effects on their lives. I hope that the Minister will explain how she will provide greater clarity for practitioners dealing with those sensitive issues.
Mrs. Moon: A significant number of changes have been made to the Bill, many of which will greatly improve mental health services, especially for young people. The initial criticism was that the Bill would not make enough changes, but no one could claim now that Ministers have not listened. Our debates in Committee have borne fruit and changes are being made, especially to age-appropriate services, settings and specialists for those under 18.
Some of the evidence that we heard, which hon. Members have described, was about the lack of education for young people, the difficulty in accessing family members and the anxiety and fear that they experienced on adult wards. Those points have been recognised and the changes that will be in place by 2010 will address all the issues.
Amendment No. 4 would ensure that services for 16 and 17-year-olds came into line with the services proposed for under-16s in new clause 4, so that those who do not request a review will get one annually rather than every three years, as at present. That seems only right. Life at 16 and 17 can be distressing. Young people of that age change fast, their emotions are changeable, difficult and contradictory. Physical changes and emotional turmoil can be extreme. It is also a time when people are trying to find their voices, put their own ideas and find their own competency. If we are to help young people of 16, 17 and 18 who are struggling to find mental stability and competency, it is only right that they have the opportunity to request a review every year, so that they can look again at their lives, the decisions they have made and the mental health troubles they are experiencing. Services can then be reviewed and their decisions challenged.
I welcome the Minister’s generosity in saying that she will consider amendment No. 4, because it will give 16 and 17-year-olds access to the services in new clause 4. I hope that it will ensure that they will have the annual reviews necessary at that vulnerable time in their lives. As they enter adult life, they should still have the rights of a child to have their lives examined and questioned and their voices heard.
Ms Rosie Winterton: Will my hon. Friend clarify whether organisations such as YoungMinds and the children’s commissioner would support us if we were to adopt her proposal?
Mrs. Moon: That was where I was going next.
YoungMinds and the children’s commissioner—a children’s commissioner service was first established in Wales, so yet again Wales has led the way—have welcomed the proposal. It is only right that justice is available for young people. YoungMinds strongly advocates the acceptance of amendment No. 4, which stands in my name and those of my fellow Committee members.
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