Memoranda submitted by the Children's Commissioner for England (MH 4)
1. The Children's Commissioner for England ('the Commissioner') was established under the Children Act 2004 as an independent organisation with the responsibility for promoting awareness of the views and interests of children in England. The Commissioner's key concerns in relation to the Mental Health Bill ('the Bill') are as follows:
§ Age appropriate settings: The requirement that mental health services ensure that young people are admitted to age appropriate settings should remain on the face of the Bill. Without such a statutory requirement it is likely that inappropriate admissions of young people onto adult psychiatric wards will continue to occur.
§ Community Treatment Orders (CTOs): There is insufficient information on the effectiveness of such provisions in relation to children and young people. The Commissioner has particular concerns about the treatment provisions for community patients who lack capacity/competence. It unclear how these provisions will work in practice and there are insufficient safeguards for individuals under the age of 18.
§ Provision for the refusal of treatment by a 'Gillick competent' child required: The Bill should provide that in cases where a child under 16 years of age is assessed as being Gillick-competent and is refusing admission to hospital for treatment for a mental disorder, that child's refusal should not be overridden by a parent. In those circumstances the mental health professionals would need to consider whether the use of the powers under the Mental Health Act 1983 ('the MHA 1983') is appropriate.
§ Specialist mental health advocacy services for children and young people: The draft Mental Health Bill 2004 required arrangements to be made for the provision of advocacy. Similar provisions should be included in the Bill.
§ Discharge arrangements and care planning: The reform of the MHA 1983 provides an opportunity for improving discharge arrangements and minimising delays, which are common problems in relation to children detained under the MHA 1983.
The Children's Commissioner for England
2. The Children's Commissioner for England ('the Commissioner') was established under the Children Act 2004 as an independent organisation with the responsibility for promoting awareness of the views and interests of children in England. Professor Sir Al Aynsley-Green became the first Children's Commissioner for England on his appointment in July 2005.
The United Nations Convention on the Rights of the Child
3. In considering what constitutes the interests of children and young people, the Commissioner must have regard to the United Nations Convention on the Rights of the Child (UNCRC). The UNCRC sets out a range of human rights - economic, social, cultural, civil and political rights - that apply to all children and young people under the age of 18.
4. The United Kingdom (UK) ratified the UNCRC in December
1991. By doing so the UK Government has undertaken to respect, protect and
promote the rights set out in the UNCRC, including adopting or changing laws and policies to
implement the provisions the UNCRC.
5. Two key principles of the UNCRC are that the best interests of the child must be a primary consideration in all actions concerning children (Article 3) and that children's views must be considered and taken into account in all matters affecting them (Article 12). The Commissioner is concerned that insufficient attention has been given to these principles in the provisions of the Bill. For example:
§ There is insufficient protection afforded to children subject to CTOs.
§ The provision of advocacy, which is key to ensuring that the views of children are given due weight, is not included in the Bill.
§ Insufficient weight is given to the views of children under 16 who are assessed as being 'Gillick-competent' (i.e. have sufficient understanding and intelligence to be capable of making decisions for themselves) and refuse admission to hospital for treatment for a mental disorder. The Bill should make clear that their refusal should not be overridden by a parent.
Mental health services and children and young people: 'Pushed into the Shadows' report
6. An important part of the Commissioner's function is to consult children, in particular those children who may have difficulty in making their views known. In January 2007, the Commissioner published a report, Pushed into the Shadows: Young people's experience of adult mental health facilities ('Pushed into the Shadows') which is based upon the findings of a consultation carried out by YoungMinds with young people who had been admitted on to adult in-patient psychiatric facilities. The report shows that despite significant progress in the development of children and adolescent mental health services (CAMHS) in England over the last few years and clear national policy objectives that seek to end such practices, young people are still being admitted inappropriately onto adult psychiatric wards. The experiences and views of the young people involved in this consultation are referred to throughout this submission.
Admission to age appropriate settings (Clause 24: Children and young people)
7. Clause 24 introduces amendments to the MHA 1983 that are specific to children under the age of 18. They seek to ensure that children with mental health problems receive assessment, treatment and care from child and adolescent mental health specialists and where in-patient care is needed, are placed in age appropriate settings.
8. The Commissioner
welcomes the inclusion of these provisions, in particular the requirement that
the services and accommodation must be appropriate to the particular needs of
9. The experiences of the
young people involved in the Pushed into
the Shadows report provide compelling
reasons why we must ensure that children and young people are placed in
facilities that are appropriate to their age and development. The young
people's descriptions of their time on adult psychiatric wards showed that not
only are such facilities inappropriate to young people's needs but in many
cases the level of care provided to them fell far below acceptable standards and
put their health and safety at risk.
10. It is not clear how many
children and young people are placed on adult wards as this information is not
In relation to those children and young people who are detained under the MHA
1983, the Mental Health Act Commission was notified of 1,308 occasions when a
patient under the age of 18 was admitted to an adult ward between April 2003
and October 2006, 'a rough average of one admission every day over the three
and a half year notification period'. Just over half of these admissions to
adult facilities were 17 year-olds and most of the remainder were 15 or 16.
However, 22 of the admissions were 14 year-olds, three 13 year-olds and two
were children under the age of 12. Given that this information was provided on
a voluntary basis and it only related to those children and young people who
are detained under the MHA 1983 these figures are likely to be an underestimate
of the total number of admissions onto adult wards.
11. The UNCRC provides further support for ensuring that age appropriate settings are made available to children and young people with mental health problems:
§ Non-discrimination (Article 2): States must ensure that the rights guaranteed by the UNCRC are available to all children without discrimination of any kind.
The Mental Health Act Commission's report, Safeguarding children and adolescents detained under the Mental Health Act 1983 on adult psychiatric wards, based on 18 months of data collected from April 2002 found that 26.8% of the young people detained on adult wards were from ethnic minorities. Whereas Black Africans and Caribbeans make up just 2.7% of the youth population in England, they accounted for 13.1% of the young people detained on adult wards.
§ Respect for the views of the child (Article 12): States must ensure that children who are capable of forming their views have the right to express those views freely in all matters affecting them and their views are 'given due weight in accordance with the age and maturity of the child'.
Pushed into the Shadows highlighted numerous incidents where the need to involve and inform the young people was disregarded by staff. Many young people commented that they had little or no involvement in their care planning and were provided with very little explanation of their rights (in particular regarding the use of the MHA 1983) and only a very few were told about access to advocacy support.
§ Right to protection from all forms of violence (Article 19): States must take measures to protect children from 'all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse', while in the care of parents or others.
Many of the young people in the Pushed into the Shadows report said that they did not feel safe on the wards; some describing how they had been harassed by other patients with little or no attempts by staff to address this, while others felt threatened or intimidated by staff. Article 19 also includes a requirement to take measures to protect children from suicide and self-harm. Some of the young people stated that they were able to engage in harmful practices such as misusing drugs or self-harming whilst on the ward. These incidents suggest that staff lacked training in, and/or experience of, working with children and adolescents.
§ Right to education (Article 28): States must ensure that there is equal access to education. This applies to all children, including those in detention.
One of the young people involved in the Pushed into the Shadows report was admitted onto an adult ward when she was 14, but during her seven month stay no action was taken to ensure that she could continue with her education.
§ Protection for children deprived of their liberty (Article 37(c)): States must separate children deprived of their liberty from adults 'unless it is considered in the child's best interests not to do so'.
The experiences of the young people involved in the consultation for Pushed into the Shadows and the figures from the MHAC demonstrate that children and young people are still being admitted onto adult psychiatric wards in contravention of this article.
12. For these reasons the Commissioner considers that a requirement to ensure that children and young people are placed in age appropriate settings remains on the face of the Bill. Without such a statutory requirement it is likely that inappropriate admissions of young people onto adult psychiatric wards will continue to occur.
Community Treatment Orders
13. Patients subject to CTOs can be required to comply with various conditions such as residing at a particular place, making him/herself available at particular times and places for the purposes of medical treatment and receiving medical treatment in accordance with the responsible clinician's direction. CTOs can apply to individuals of any age.
14. The Commissioner's general concern in relation to CTOs is that there is insufficient information on the effectiveness of such provisions in relation to children and young people. It is not clear why the Government has decided that such powers should be applicable to children and young people, particularly given that powers that currently apply to individuals living in the community (guardianship and supervised discharge) have a lower age limit of 16. The Draft Illustrative Code of Practice to the Mental Health Act states that the number of children and young people suitable for supervised community treatment is likely to be small but no information is given to support this statement. While the additional criteria included in the Bill as a result of an amendment in the House of Lords, would be likely to reduce the number of individuals eligible for these powers (including those under 18), the Government opposed this amendment and may seek to remove it from the Bill.
Treatment and community patients
15. The Commissioner has particular concerns about the treatment provisions for community patients who lack capacity/competence.
16. The Bill makes clear that neither adult community patients (those aged 16 and over) nor child community patients (those aged under 16) can be treated if they have capacity or (in the case of a child under 16) competence to make treatment decisions and refuse the treatment proposed. However, subject to meeting the 'certificate requirements' (where a second opinion appointed doctor certifies that the treatment may be given), adult and child community patients can be given non-emergency treatment without consent if they lack capacity/competence (see Table 1 below). Emergency treatment can be given to an adult or child community patient who lacks capacity/competence and in such cases the Bill provides that force can be used where it is a proportionate response to prevent harm to the patient.
17. It unclear how these provisions will work in practice. Furthermore, there is a significant distinction between the provisions for adult community patients and child community patients in relation to non-emergency treatment. This is illustrated by the table below:
Table 1: CTOs, Circumstances in which non-emergency treatment for mental disorder can be given to patients who lack the capacity/competence to make treatment decisions (subject to the certificate requirement).
18. As Table 1 shows, the Bill provides that adult community patients who lack capacity cannot be treated if giving such treatment conflicts with decisions made in accordance with powers under the Mental Capacity 2005 ('the MCA'). (The MCA provides the legal framework for acting and making decisions on behalf of individuals who lack capacity to make decisions for themselves.)
19. Whereas the Bill makes provision for certain individuals to be consulted in relation to an adult community patient there is no provision for any person to be consulted as to whether the child community should be given the treatment proposed. Presumably those with parental responsibility would need to be consulted but the Bill is silent on this point. Nor does the Draft Illustrative Code of Practice make any reference to individuals with parental responsibility in relation to the provision of treatment to a child community patient who lacks capacity.
20. Individuals aged 16 and 17 year cannot make advance refusals of treatment or appoint a donee under the Lasting Power of Attorney provisions. Thus, unless a deputy has been appointed to act on the person's behalf, those aged 16 and 17 who lack capacity to make treatment decisions will be in the same position as individuals under 16 who lack the competence to make treatment decisions. It is not clear whether in such cases those with parental responsibility would be consulted.
21. Thus, the Commissioner is concerned that it is not clear how the CTO treatment provisions will work in practice and that there are insufficient safeguards for individuals under the age of 18.
Recognition of the 'competent' child's refusal of treatment
22. Clause 42 (Informal admission of patients aged 16 or 17) makes clear that where patients aged 16 or 17 have the capacity to make such decisions, their refusal to consent to arrangements for their admission to hospital for treatment for mental disorder cannot be overridden by a person with parental responsibility. In such circumstances they could be admitted to hospital for compulsory treatment under MHA if they meet the relevant criteria.
23. The Government's decision to introduce this clause to the Bill is very welcome. However it is also important to clarify the law in relation to those children aged under sixteen who are competent to make such decisions for themselves. The Commissioner believes that in cases where a child under sixteen years of age has been assessed to have a sufficient understanding and intelligence to be able to understand what is being proposed and to be capable of making up his or her mind about the matter (commonly referred to as being 'Gillick competent') that child's decision should not be overridden by a parent. In cases where a Gillick-competent child is refusing admission to hospital for treatment for a mental disorder, the correct approach is for mental health professionals to consider whether the use of the powers under the MHA 1983 would be appropriate, rather than relying on parental consent to provide treatment.
Specialist mental health advocacy services for children and young people
24. The Commissioner is particularly disappointed that the statutory requirement for independent mental health advocates to be made available to patients is not included in the Bill. Almost all of the young people consulted for Pushed into the Shadows stated that there should be a greater provision of independent advocates who could speak up on their behalf. The provision of advocacy to all children and young people who receive mental health services would enable them to participate more fully in planning their care, ensure that they are informed of their rights and they and their families are aware of, and know how to access, services and support.
25. Pushed into the Shadows highlighted serious problems with disorganised, and in some cases rapid, discharges. It is a well recognised problem that after-care planning for children detained under the MHA 1983 can cause problems and delay. The reform of the MHA 1983 provides an opportunity of improving discharge arrangements and minimising delays. For example, in relation to Mental Health Review Tribunals (MHRTs) an important safeguard would be to introduce a requirement on the relevant local authority to make available to the MHRT a care plan in relation to the child or young person. This would help to ensure that the aftercare arrangements are considered and appropriate support is ready to be put in place if the MHRT should decide to that the child or young person should be discharged.
 Thus, reference to 'child' or 'children' in this submission applies to children and young people under the age of 18
 Available at: https://www.childrenscommissioner.org/documents/Pushed%20into%20the%20shadows %20report% 20final.pdf The Consultation was carried out Cathy Street, Jo Tunnard and Joe Roberson of Young Minds.
 See the Department of Health's Report on the Implementation of Standard 9 of the NSF for Children, Young People and Maternity Services (November 2006)
 Recommendation 6 of the Pushed into the Shadows report suggests that the Department of Health should arrange for such information to be collected.
 Lord Patel of Bradford, Chair, Mental Health Act Commission, House of Lords, 15th January, Column 550
 Mental Health Act Commission, 2004
 The main provisions of the MCA 2005 will come into force in October 2007.