DMH 194 The National Childrens Bureaux
Joint Select Committee
Draft Mental Health Bill
Memorandum of Evidence
This submission from the Children's Legal Centre
and the National Children's Bureau draws attention to the need
for mental health service planners and providers of services to
children with a mental illness to take further action to safeguard
and promote their welfare. In particular service providers should
recognise the need to establish:
- specific criteria for the protection of children
during their time as an in-patient ;
- a clear policy on issues of consent and confidentiality
;
- a framework for multi-disciplinary service planning
for individual children.
Introduction
The Children's Legal Centre is an independent charity
which takes an active interest in law and policy as they affect
children, and provides both legal information helplines and direct
representation through its legal practice unit. The Centre receives
funding from the Community Fund, the Children's Fund, the Home
Office and the Department of Health. It has a particular interest
in the development of mental health legislation as a result of
its involvement with a local adolescent psychiatric unit. It also
recently received a small grant from the Nuffield foundation to
examine the implications for children of the Draft Mental Health
Bill 2002. The report from this project has already been sent
to the Select Committee.
The National Children's Bureau (NCB) works to identify
and promote the well-being and interests of all children and young
people across every aspect of their lives. It encourages professionals
and policy makers to see the needs of the whole child, and emphasises
the importance of multi-disciplinary, cross-agency partnerships.
We also believe that children and young people themselves should
play and active role in developing the policies which affect them.
Principles and welfare considerations
The Children's Legal Centre, in their report on the
2002 Draft Bill, criticised the failure of the Draft Bill 2002
to include welfare related principles, (as contained in the Children
Act 1989 and the Adoption and Children Act 2002), in those clauses
related to the treatment of children. Those principles, which
include the welfare checklist and, particularly, the paramountcy
of the best interests of the child and the right of the child
to express his view and wishes and have these taken into account
according to his age and maturity, are also missing from the new
Draft Mental Health Bill. These principles are regarded as fundamental
to the safeguarding and promoting of children's welfare.
The omission of child welfare principles from
the 2004 Draft Mental Health Bill is to be regretted and the Children's
Legal Centre and the National Children's Bureau recommend that
these be included on the face of the Bill.
Consent, capacity, competence and confidentiality
These issues present mental health service providers
with considerable problems. If the proposals in the Draft Bill
are included, there are 9 possible routes by which consent to
treatment may be given for children , which are subject to various,
but not always consistent, criteria. They are:
- consent by a child over 16 years old, which is
permitted;
- consent by a Gillick competent child under 16,
which a parent may not overrule;
- consent by a person holding parental responsibility
for a child over 16, where that child lacks capacity under adult
criteria;
- consent by a person holding parental responsibility
for a child under 16, where that child is Gillick competent and
refuses treatment ;
- consent by a person holding parental responsibility
for a child under 16 who lacks the competence or capacity to consent;
- the use of compulsion under the Mental Health
Act 1983;
- the use of the inherent jurisdiction of the High
Court to overturn refusal of consent to treatment by either parent
or child;
- the use of care proceedings under the Children
Act 1989, where it is believed that the child is at risk of significant
harm as the result of the parent's refusal to consent. Once an
interim care order is granted , the local authority may provide
consent as a parental responsibility holder;
- the use of 'protected child' status under the
Draft Bill.
In determining whether the appropriate consent has
been given, the clinician needs to work with both the child and,
possibly, both parents, all of whom may have differing views.
Balancing interests and rights can be problematic in the light
of the absence of criteria for reaching decisions.
One problem frequently faced by clinicians is the
difficulty of obtaining rapid legal advice and intervention to
prevent the inappropriate removal of a child in situations where
the use of compulsory Mental Health Act powers is not appropriate.
In this context the proposal in the new Draft Bill to create
a 'qualifying child' status would appear to add complexity to
an already confused scenario.
The Children's Legal Centre and the National Children's
Bureau recommend that consideration be given to clarifying the
issue of consent , in particular the setting of legislative criteria
for consent given by children and when and in what circumstances
consent by children ,or lack of consent , can be overridden.
Protection of children receiving in-patient care.
In its report on the 2002 Draft Bill, the Children's
Legal Centre criticised the lack of measures to protect in-patient
children not subject to compulsory powers. There are two aspects
to this problem
First, although the Code of Practice states that
children should only be placed on adult wards in exceptional circumstances,
Placed amongst strangers ( MHAC 2003) states that 62%
of children admitted under compulsion were placed on such wards
between 1999 and 2001.This may be the result of the shortage of
in-patient and emergency care but, as the law applies to children
of any age, even a very young child could be so placed. To date,
background checks for staff on adult wards have not been to a
standard comparable to those for children's wards, nor are the
antecedents of patients checked.
Second, the role of the CHAI in Part 10 Draft Bill
2004 needs to incorporate the protection of children receiving
voluntary as well as compulsory care, using the standards within
Getting the Right Start, the NSF for children in hospital.
Otherwise there is possibility that one group of in-patient children
will receive a lesser standard of inspection than another. This
accords with the duty in s.48 (2) (e) Health and Social
Care (Community Health and Standards) Act 2003, which requires
the CHAI to safeguard and promote the welfare of children as part
of its function
The Children's Legal Centre and the National Children's
Bureau recommend that:
- background checks for staff on any adult ward
admitting children should be completed to the standard required
for children's wards;
- all health agencies should be accountable
for the protection of children affected by the use of compulsory
powers, as required by the Children Bill 2004;
- the role of CHAI within the Draft Bill 2004
should incorporate the protection of children receiving voluntary
care as well as those receiving compulsory care, using the criteria
within the NSF for children in hospital.
Reviews
Article 25, UN Convention on the Rights of the
Child requires regular reviews for children placed in institutional
care . The Children's Legal Centre and the National Children's
Bureau recommend that the Draft Bill should incorporate provision
for statutory reviews for children receiving in-patient mental
health care.
Integrated care plans for children.
The Draft Bill 2004 makes no provision for integrated
service planning for children and their families.
First, there is no power within the Draft Bill for
children subject to compulsory powers to be assessed either for
special educational needs or for children in need services, and
no powers to compel either education or social services to undertake
such an assessment.
Second, looked after children reviews incorporate
health and education plans for each child. However, there is no
similar provision to incorporate the views of other agencies for
children subject to compulsion, let alone for those receiving
voluntary treatment. Such children will have had significant disruption
to their lives, affecting their schooling and ability to cope
in the community, which would be eased by good planning and adequate
resources.
Third, the discharge proposals in Clause 53 are not
helpful. On leaving hospital, some children go home, either with
or without support, some may have no home to go to and need housing.
Often, decisions are left until the last minute, requiring immediate
action to ensure that a child is not left homeless as a result
of inter-agency disputes. Powers related to discharge should also
take account of the provisions for 'qualifying children' under
the Leaving Care (Children) Act 2002.
Parents subject to Mental Health Act powers
The separation between adult and children's sector
services is likely to increase with the development of Children's
Services Authorities. Planning for families when a parent is suffering
from severe and/or chronic mental illness may become more difficult,
with serious consequences for the children. It is important for
legislation to be framed in such a way as to ensure that the separate
sectors collaborate in this area.
The Children's Legal Centre and the National Children's
Bureau recommend thatNHS trusts should have the powers to request
and obtain assessments of children either for SEN or for services
under s.17 Children Act 1989
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