Memorandum submitted by the National Children's Bureau and the Children's Legal Centre (MH 2)
1. Child Impact Assessment
1.1 Child impact assessment involves the analysis of proposed legislation to determine its likely effect on children and young people. Following UK welfare legislation and international conventions, a child is defined as being under 18.
1.2 The Children's Legal Centre and the National Children's Bureau have been funded by the Nuffield Foundation for a period of three years (October 2004 to September 2007) to undertake child impact assessment of up to four Bills per year.
1.3 The child impact process involves the analysis of proposed legislation using the framework provided by the UN Convention on the Rights of the Child ("CRC"), the European Convention on Human Rights and Fundamental Freedoms ("ECHR") as incorporated by the Human Rights Act 1988, and the five outcomes for children established under the Children Act 2004.
2. Summary of Issues that will impact on children and young people in the Mental Health Bill and draft
2.1 The National Service Framework for Children estimates that 10% of five to 15-year-olds have a diagnosable mental health disorder, or about 1.1 million children under 18. Up to 45,000 young people suffer from a severe mental health disorder; and around 40% of children with a mental health disorder are not currently receiving any specialist service. A more recent report on the implementation of NSF Standard 9 finds that, despite significant and welcome investment in CAMHS since 2002, up to 2006 "only 25% of children with a diagnosed psychiatric disorder were accessing mental health services over a three year period. . . 43% did not have contact with any professional."
2.2 The Mental Health Bill amends current mental health legislation, continuing its age-blindness and thus failing to consider issues affecting children and young people in primary statute. Therefore, the following areas of the Bill merit further investigation.
· Status of the Code of Practice
· Child and adolescent mental health
· Definition of child
· Consent to treatment
· Definition of mental disorder
· Age appropriate care
· Nearest relative
· Supervised community treatment
· Mental Health Review Tribunal
· Mental health advocacy for young people
3. Status of the Code of Practice
3.1 In relation to children's issues, the new mental health legislation will continue the practice of the Mental Health Act 1983 - the way in which the new measures will impact on children and young people are outlined in a chapter in the draft Code of Practice.
3.2 The current Code of Practice is issued under section 118 of the Mental Health Act 1983. In paragraph 1 of the Code, it specifies that the Code "does not impose a legal duty to comply with the Code but as it is a statutory document, failure to follow it could be referred to in evidence in legal proceedings". Since issues that address the way in which the Mental Health Act will impact on children and young people are relegated to the Code of Practice, this failure to ensure that the safeguards contained in it are mandatory is of considerable concern.
4. Child and adolescent mental health
4.1 The Mental Health Act 1983 does not differentiate between the mental health needs of children and adults, and there is no lower age limit for admission to hospital. However, many of the relevant practice issues receive significant attention in the draft Code of Practice, supported by the good practice markers in the NSF for Children.
4.2 The principles behind both the welfare-based Children Act 1989 and the development of the new children's services and outcomes framework in the Children Act 2004 are undermined by this Bill's failure to recognise the special vulnerabilities and needs of children with serious mental health problems - including safeguarding needs - and of those children who end up caring for parents with serious mental health problems.
4.3 In its response to the Bristol Inquiry, the Department of Health conceded that "children should not have to make do with services designed for adults, which are, quite simply, inappropriate for them" - a core principle underwriting the development of the National Service Framework for Children, Young People and Maternity Services.
4.4 In a report comparing the use of the Children Act 1989 and the Mental Health Act 1983, the Royal College of Psychiatrists recommended that: "The specific needs of young people should be considered in the new Mental Health Act." The Joint Committee that examined the second draft Bill made a series of child-specific recommendations in the belief that new mental health legislation should have "a separate Part dedicated to the treatment of mental disorder in young people and which recognises that separate and distinct arrangements for people under 18 are necessary."
5. The definition of 'child'
5.1 Under both the Children Act 1989 and the UN Convention on the Rights of the Child, a child is defined as being under the age of 18. The National Service Framework for Children, Young People and Maternity Services confirms this definition. Clause 35 of the Mental Health Bill inserts section 64B into the Mental Health Act 1983. This new section specifies that, for the purposes of supervised community treatment, an adult community patient is anyone who has attained the age of 16 years. In sections 64E and F, child community patients are those who have not attained the age of 16 years.
5.2 Standard 9 of the NSF for Children says that: "Traditionally, CAMHS have been resourced for young people up to sixteen years of age or up to school-leaving age. . . . There is a broadly held view and concern that many young people of sixteen and seventeen years of age are not receiving the services they require since they fall into the gap between child and adult services, the latter tending to have a lower age threshold for their services of eighteen years." In the Department of Health's annual mapping of Tiers 2 to 4 CAMHS, only 56% of the respondents reported having specialist provision for 16 and 17-year-olds.
6 Consent to and refusal of treatment
6.1 Section 8 of the Family Law Reform Act 1969 provides that, from the age of 16, anyone with competence may consent to medical treatment, and that consent is legal regardless of the parent's or carer's views. However, the Family Law Act fails to clarify whether a competent 16 or 17-year-old has the right to refuse treatment without being overridden by a parent or a court - and this has led to case law. Clause 42 of the Mental Health Bill deals with informal admissions of patients aged 16 or 17.
6.2 The new Clause, inserted during the Lords debates, clarifies the young patient's right to consent to or refuse treatment. However, the Bill fails to address similar issues for children below the age of 16 who are considered by the clinician to be competent to make their own informed decisions.
7. The definition of mental disorder
7.1 Clause 1 widens the definition of mental disorder to mean "any disorder or disability of the mind". In particular, clause 2(2) stipulates that a person with a learning disability may not be considered to be suffering from a mental disorder unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part. Only then may the person be subject to various powers under the Bill including: sections 3 (admission for treatment); 8 (Guardianship); 36 (remand to hospital); 37 (court-ordered hospital admissions or guardianship); 47 (removal to hospital of persons serving sentences) and 48 (other prisoners); 51 (the making of a hospital order without requiring a conviction first).
7.2 According to the Bill's Draft Illustrative Memorandum, the broader definition of mental disorder includes Autistic Spectrum Disorder and behavioural and emotional disorders of children and adolescents. This could arguably include conduct disorders and conditions like Attention Deficit Hyperactivity Disorder (ADHD), the symptoms of which can involve aggressive or socially irresponsible behaviour.
8. Age appropriate care
8.1 Clause 5(3) amends the 1983 Act to insert the concept of appropriate medical treatment for patients admitted for treatment. Clause 10 inserts a list of fundamental principles that will inform the statement of principles to be included in the Code of Practice.
8.2 Clause 24 inserts new sections that, in the case of an application for admission for assessment and treatment of a person under the age of 18, whether voluntary or not, will require a CAMHS specialist to assess the needs of the child and require the PCT in England or health board in Wales to provide age-appropriate services and accommodation. Except in the case of an emergency, the responsible clinician should be a CAMHS specialist.
8.3 During the Committee stages in the Lords, Lord Patel of Bradford, Chair of the Mental Health Act Commission (MHAC), reported that, between April 2003 and October 2006, 1308 under-18s were detained in adult psychiatric units with no special safeguards in place; and 27 of these children were under the age of 14 - one as young as ten. 322 out of 409 girls were placed on mixed-sex wards, and staff understanding and knowledge of child safeguarding issues was unclear. Adult units were unable to provide for the child's education.
"When the Mental Health Act commissioners asked ward staff whether there were any plans to transfer the young person or child to more appropriate surroundings within the next seven days, there were no such plans for nearly three-quarters of the children. That is 959 children with little or no prospect of moving from adult psychiatric wards. Only one-third of the children had a responsible medical officer who specialised in child and adolescent psychiatry. . . It is also notable that half were classed as emergency admissions." (Lords Hansard, 15 January 2007, col.549)
8.4 In its 2002 response to the Bristol Inquiry, the Department of Health stated that it "shares Professor Kennedy's view that children should be cared for in an environment appropriate to their age, and their physical and psychological development, by health care professionals with appropriate qualifications and experience and this will be reflected in the NSF."
8.5 In paragraph 229 of its report, the Joint Committee on the Draft Mental Health Bill recommended that "the Bill stipulate that under-18-year-olds should be accommodated in age-appropriate facilities". If, due to a shortage of in-patient facilities for under-18s, it becomes necessary to treat a child on an adult ward, the Joint Committee recommended that "the Bill should require the clinical supervisor to obtain advice from a Child and Adolescent Mental Health Services specialist during both the assessment and treatment of the patient in question".
8.6 The Office of the Children's Commissioner recently published a report on young people's experience of adult mental health facilities. Recommendation 1 proposes that: "PCTs and mental health trusts should ensure that adult wards are not used for the care and treatment of under-16s and, wherever possible, adult wards should be avoided for 16 and 17-year-olds unless they are of sufficient maturity and express a strong preference for an adult environment."
8.7 One of the markers of good practice in Standard 9 of the NSF for Children states that: "Where a child or young person needs to be placed in an in-patient unit, every effort is made to find a place that is close to home, so that contact with the family can be maintained. . . Children and young people are admitted to settings which are appropriate for their age and maturity." The Department of Health set a Public Service Agreement target that a comprehensive CAMHS will be available to all who need them across England by the end of 2006; this target has not been met. One of the proxy measures for the PSA that applies to both the NHS and local authorities was: 'services available for all 16 and 17-year-olds appropriate to their age and level of maturity'.
8.8 The Department of Health report on the implementation of Standard 9 suggests that the elimination of the unacceptable use of adult wards should be possible within a five-year period. It lists key safeguarding and other concerns, including the following, that need to be addressed in the meantime:
o The beds have been specifically set aside for the use of children and adolescents and are single sex
o The staff are Criminal Records Bureau (CRB) checked and have support and training available to them from child mental health professionals
o The Local Safeguarding Children Board is satisfied with the measures in place
o Education, recreational facilities and advocacy services are available to children and young people
8.9 Section 23 of the Mental Health (Care and Treatment) (Scotland) Act 2003 requires health boards to provide "such services and accommodation as are sufficient for the particular needs of that child or young person" for young people under 18 who are detained or admitted to hospital. Although to date this has proved difficult to meet, the section is intended to encourage the health sector to ensure that sufficient services for children and young people are made available.
9. Nearest relative
9.1 Chapter 3 amends current provisions regarding the patient's nearest relative, giving them the right to apply to displace their nearest relative. Clause 26 amends section 26 of the 1983 Act to include civil partners in the list of nearest relatives. Nearest relatives must be aged 18 and over.
9.2 Barnardo's estimates that there are about 175,000 young carers under 18 in the UK, with an average age of 12. At least a quarter of adults known to mental health services are parents. Children who are the primary carers at home of parents with mental health problems are not able to act as their parent's nearest relative. This restriction can inhibit their right to information from those assessing and providing treatment to their parent.
9.3 During Committee debates in the Lords, Baroness Royall of Blaisdon said that the need to ensure that adult and children's services work together more closely will be covered in the Code of Practice to the Bill. In addition, the National Social Inclusion Programme is working with the Social Care Institute for Excellence (SCIE) and the National Institute for Clinical Excellence (NICE) to draft cross-departmental guidance for health and social care services (Lords Hansard, 17 January 2007, col.688).
10. Supervised community treatment
10.1 Chapter 4 of the Bill introduces supervised community treatment for patients following a period in hospital. Patients who fail to continue to receive their treatment may be made subject to a community treatment order. The community treatment order (clause 33) places a number of conditions on a patient which may include requirements regarding place of residence, availability at particular times and places for the purposes of medical treatment and/or examination, and a condition that the patient abstain from particular conduct. Amendments to sections 64B, 64E and 64F of the 1983 Act deal with child and adolescent community patients.
10.2 The draft Code of Practice makes it clear that there is no lower age limit for supervised community treatment. Children who are 16 and 17 are to be treated in the same way as adult patients. Those who lack the capacity to consent to treatment can be treated in the community if a donee or Court of Protection consents to treatment on their behalf. For those under 16, treatment cannot be given to a child in the community who is competent to consent and refuses to do so. Children who lack competence may be given treatment in the community, but because they are not subject to the new powers under the Mental Capacity Act 2005, the decision-making powers of an attorney or deputy do not apply to them. The assumption is that the child's parent would give consent. Treatment for children subject to a care order who lack competence to consent to treatment require consent from the local authority, often in negotiation with the parent with whom it shares parental responsibility.
10.3 In emergencies, force can be used to give treatment to children who lack competence. The conditions are the same as those for adults who lack capacity, and so may be in conflict with the health service's duties under section 11 of the Children Act 2004 to promote and safeguard the welfare of children to whom they are providing a service.
11. Mental Health Review Tribunal
11.1 Clause 36 replaces section 68 of the Mental Health Act 1983, and subsection (6) refers to patients under the age of 16 who have been detained in hospital for assessment and/or treatment. Hospital managers are required to refer this child's case to the MHRT if a period of one year has elapsed.
11.2 Currently, children under 16 who do not request a hearing are reviewed annually, and 16 and 17-year-olds are treated as adults and therefore may not be referred until a period of three years has elapsed. This differentiation conflicts with the accepted definition of a child as being anyone under the age of 18. In order to fulfil current review requirements under the social care Review of Children's Cases Regulations 1991, each case should first be reviewed within four weeks; then reviewed again no more than three months after the first; and thereafter subject to subsequent reviews not more than six months after the date of the previous review.
11.3 During Committee debates in the Lords, Baroness Ashton of Upholland made a commitment "that no child should appear before a tribunal unless he has been seen or supported in some way by someone with the expertise to reflect the fact that he is a young person . . . That might be done in the process of getting to the tribunal by having the opportunity to meet somebody from the service, it might be done by somebody on the panel or there might be other opportunities." (Lords Hansard, 17 January 2007, col.744)
12. Mental health advocacy for young people
12.1 During the Committee stages and Report stages in the Lords, Baroness Howells of St. Davids, and Lord Williamson moved amendments to introduce independent mental health advocacy for young persons under the age of 18.
12.2 Sections 35 to 41 of the Mental Capacity Act 2005 introduce an independent mental capacity advocacy service for those lacking capacity, and section 119 of the Adoption and Children Act 2002 gives young people looked after by the state a right to advocacy. Baroness Royall of Blaisdon said that the government plans to bring forward proposals on how best to ensure that tailored advocacy services may be made accessible to different groups of patients subject to the Mental Health Act, including children. (Lords Hansard, 26 January 2007, col.1399).
 Department of Health/DfES (2006) Report on the implementation of Standard 9 of the NSF for Children, Young People and Maternity Services. Standard 9 deals with the Mental Health and Psychological Well-being of Children and Young People.
 Department of Health (2002) Learning from Bristol: The Department of Health's Response to the Report of the Public Inquiry into children's heart surgery at the Bristol Royal Infirmary 1984-1995. London: DH.
 Mears, A et al (2001) An evaluation of the use of the Children Act 1989 and the Mental Health Act 1983 in children and adolescents in psychiatric settings. London: College Research Unit, Royal College of Psychiatrists.
 Joint Committee on the Draft Mental Health Bill (2005) Draft Mental Health Bill, volume 1, p.75. London: TSO.
 Barnes, D, Wistow, R, Dean, R with Foster, B (2006) National child and adolescent mental health service mapping exercise 2005. School of Applied Social Sciences, Durham University.
 Department of Health (2006) Draft Illustrative Memorandum. London: DH.
 Office of the Children's Commissioner for England (2007) Pushed into the shadows: young people's experience of adult mental health facilities. London: OCC.