DMH (memo) 64
Compulsory
treatment and children[i]
YoungMinds evidence to the Joint
Committee on the Draft Mental Health Bill
YoungMinds is a member of the Mental
Health Alliance
and endorse the Alliance
evidence. We believe that the 2004 Draft Mental Health Bill is the wrong
approach take. Nevertheless our three main proposals for changes specific to
children are summarised on the first page. We would like to submit oral
evidence and suggest that a session be dedicated to children’s issues.
Summary page
Prevent under 18s being detained on adult wards
The Committee has heard[ii]
from the Mental Health Act Commission that about 260 young people are detained
on adult psychiatric wards each year. This is a substantial proportion of all
young people detained under mental health law. Echoing many commentators, the
Commission stated that ‘it is becoming clear to everyone that this type of
admission is inappropriate.’[iii]
The government argues that levers of
service management should be used to create enough adolescent beds for all
adolescents who need to be detained, freeing up adult beds. Nevertheless the
law could be used here. We propose:
·
A duty on strategic health
authorities and primary care trusts to provide enough age-appropriate
psychiatric wards for detained adolescents.
Meet family and educational needs
Children compelled under the Bill will have
ongoing educational and family needs, as well as aftercare needs. Many
compelled adults are parents, who have family needs. Meeting these needs are
important to a patient and his / her recovery. We would like this to be
addressed on the face of the Bill so that it is more likely to happen. We
propose:
·
Care plans be required to
provide for family needs of patients who are parents or children, for the
educational needs of children, and for aftercare needs.
Empower a capable teenager to make decisions
As part of the Mental Health Alliance,
YoungMinds believes that people who are capable of making their own decisions
should be empowered to do so. That applies when considering someone’s capacity
to decide in the context of their mental illness; but it also applies when
considering the maturity of a child. We suggest that this is required by the
child’s ECHR right to private and family life in this context. We propose:
A Gillick / Fraser ‘
competent’[iv] child should be empowered
to make his or her own decisions to the same extent as an adult.
Introduction
YoungMinds is the national children’s
mental health charity. Our members are children’s professionals concerned about
mental health, from teachers to psychiatrists. We provide services to
professionals, managers and parents as well as campaigning work.
The Bill as a whole
YoungMinds is a member of the Mental Health
Alliance. We endorse the Mental Health Alliance submission. YoungMinds believes
that the 2004 Draft Mental Health Bill is the wrong approach to mental health
law. Our main objections (and these address the Committee’s questions 1, 2 and 3) are:
·
It is too much about safety and
not enough about treatment.
·
Resources will become more
focussed on dealing with people under compulsory powers rather than providing
early intervention.
·
Users and professionals are
worried about the potential for a large increase in the use of compulsion, and
the difficulty of ever being released from compulsion.
Or technically:
·
The criteria for compulsion
(section 9) are still too broad.
·
The criteria combine with a
widened definition of ‘mental disorder’ which will cover a large number of
young people with behavioural problems (known as ‘conduct disorder’) whose
behaviour would not meet the threshold for diagnosis (with ‘personality
disorder’) in adults.
·
There is no statement of
principles comparable to those in the Mental Health (Care and Treatment) (Scotland) Act
2003 (section 1 (3)), nor those in the Children Act 1989 (section 1 (3)). For
example, both of these begin with a statement that the wishes and feelings of
the young person must be considered.
We would prefer the government to take a
much more liberal approach, comparable to Scotland and most other comparable
jurisdictions, as well as its own original Review
of the Mental Health Act 1983 chaired by Professor Genevra Richardson.
Nevertheless, the rest of this paper
proposes amendments to the 2004 Draft Mental Health Bill. We focus on issues
that are specific to children in mental health law.
Positive points
There are two respects about children in
which the 2004 Draft Mental Health Bill is an improvement on the 1983 Act.
Firstly, the safeguards for children
treated under parental consent (Part 6) are very welcome (but see our proposals
for empowering competent children).
Secondly, parental responsibility is
considered throughout, and this is welcome.
ENSURE CHILDREN ARE DEALT WITH BY CHILDREN’S SPECIALISTS
The clinical supervisor, AMHP, advocate and
Tribunal members should all be specialists in children when the patient is a
child. In practice the most important factor is that young people under
compulsory powers should be admitted to specialist adolescent wards, where they
are also more likely to get adequate education, work with families, and
protection. The Mental Health Act Commission has found a instances of children
on adult wards being seriously assaulted or offered illegal drugs under threat.[v]
There are insufficient age-appropriate
in-patient facilities which can take young people on section, and they are
under no obligation to take young people under compulsion. A third of
admissions of mentally ill young people are inappropriate admissions to adult
psychiatric or paediatric wards.[vi]
The United Nations Convention on the Rights
of the Child, article 37 (c) states that ‘every child deprived of liberty …
shall be separated from adults unless it is considered in the child’s best
interest not to do so.’
n Duty on health authorities
We propose:
·
A duty on health authorities
(see summary) to provide age-appropriate accommodation.
This would help ensure that young people
are treated in age-appropriate facilities, and be similar to the Mental Health
(Care and Treatment) (Scotland)
Act 2003, section 23. In practice, groups of Primary Care Trusts would have to
commission facilities jointly.
n Consultation by adults’ specialists of children’s specialists
Even in an adequately-resourced system,
there will still be rare occasions when young people are admitted to adult
facilities, for example in an emergency. So we propose:
· Wherever young people are admitted to adult wards (or paediatric
wards) in violation of this duty, the law should require the clinical
supervisor to consult a children’s clinical specialist.
n Definitions of Bill personalities
In Scotland,
the Mental Health (Care and Treatment) (Scotland) Act 2003, section 233
requires the Mental Welfare Commission for Scotland to compile a list of
designated medical practitioners. Subsection (3) requires that the list
includes child specialists. We propose:
· Definitions of all Bill personalities should distinguish between
those qualified to act in relation to children and those qualified to act in
relation to adults.
Meet family and educational needs
A young patient has educational needs. The
knowledge that educational opportunities are being missed can be very
counter-therapeutic, and reduce a young person’s potential even after a full
recovery. The right to education is enforceable under the European Convention
on Human Rights.
Family is central to the lives of any child
or anyone with parental responsibility. The mental health of parents and
children are closely related. A child whose parent has very poor mental health
has a 34% chance of having a mental disorder. As parental mental health
improves, the figure falls, to 5% for the healthiest.[vii]
The relationships between parental mental health and children’s mental health
include a mentally ill parent finding it harder to provide the care that he or
she might want to (for example during an episode of psychosis); a child taking
on caring responsibilities for a mentally ill parent; and in rare cases, a
parent’s mental illness resulting in child protection concerns. Mentally ill
children are also harder to care for than well children, so families may need
extra support.
No care plan is complete without
consideration of the family needs of patient who is a parent or a child; nor
the educational needs of someone who is still in education, or would be if it
were not for their mental illness. (This should of course be an obligation on
services, rather than treatment which the patient or his/her family is forced
to accept. Education is included in the Bill’s definition of ‘treatment’.)
It will not be possible for clinical
supervisors to make these parts of assessments and care plans, so they will
need the help of appropriate professionals. We propose:
·
A duty on hospital managers,
where the patient is a child or has parental responsibility, to ensure
assessment of family needs, and to ensure that appropriate provision is
included in the care plan.
·
A duty on hospital managers,
where the patient is a child, to ensure appropriate educational provision
(unless the child is past school leaving age and has left education other than
because of his / her mental illness).
Both should be on the face of the Bill. The Code of Practice for the
1983 Act provides that family needs must be assessed but services are rarely
provided.
empower a capable child to make treatment decisions
With the Mental Health Alliance, YoungMinds
believes that people who are capable of making their own decisions should be
empowered to do so. So it should not be possible to compel someone unless a
criterion of lack of capacity or impaired judgement is met, as in Scotland. For
example, if someone is in danger of death due to anorexia, their judgement
would probably be seen as impaired. However, this also applies to children who
are mature enough to make treatment decisions.
Many children are capable of understanding
the treatment that is proposed, weighing it in the balance, and coming to even
major decisions. That is, they are ‘Gillick’ or ‘Fraser’ competent, see above.
Unless they prefer to leave it to their parents, they should be allowed to
consent to, or refuse, treatment to the same extent as an adult. However, the
government proposes to leave the common law position in place for children
under 16. This would mean that a parent can consent ‘on behalf of’ a capable child,
albeit with the new and welcome safeguards.
ECHR article 8 provides a right to private
and family life. It can be argued either that the family right empowers a
parent to decide; or that the private right empowers the child to decide. We
believe that the competent child’s right to private life should take precedence
in this context. We propose:
·
A competent child should be
empowered to consent to, or refuse, treatment to the same extent as an adult.