Joint Committee on the Draft Mental Health Bill Written Evidence


Compulsory treatment and children

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.



[i] :We use ‘child’ in the legal sense of people under the age of 18.

[ii] :First oral evidence session, 21st October 2004.

[iii] :Placed among strangers, Mental Health Act Commission

[iv] :The House of Lords decided in the Gillick case (All England Law Report 1983, volume 3, page 402) that a child was capable of giving consent if he was capable of understanding what was proposed and of expressing his own wishes

[v] :Children and the use of Mental Health Powers: the impact of the Draft Mental Health Bill 2002 on children. Children’s Legal Centre, 2004.

[vi] :Distribution and characteristics of in-patient child and adolescent mental health services in England and Wales, O’ Herlihy et al, British Journal of Psychiatry (2002), 183, 547-551.

[vii] :The Mental Health of Children And Adolescents in Great Britain, Meltzer et al., Office of National Statistics, 2000. ‘Very good mental health’ means a score of 12/12 on the General Health Questionnaire (GHQ); ‘very bad mental health’ means 0/12, E.g.s of GHQ items: whether someone worries, feels useful and enjoys daily activities.

 
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