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The key point for me is that, in those circumstances, a young person admitted to hospital does not have the various protections given under the Mental Health Act. Are we or are we not going to make those available? I would be grateful if the Minister could confirm what he believes to be the current situation, as some practitioners are in disagreement about it. If it is as we state, could it be corrected?
Baroness Walmsley: My response to the issue of consent is that it is nonsense that a young person who is deemed competent to decide to accept treatment could be overruled by his parents if he refuses. That is a legal contradiction. If he can decide to accept treatment that they do not want him to have, surely the corollary is that he must be able to decide to refuse treatment that they do want him to have.
I understand that the Government also take that view, for which I applaud them, but they believe that
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The intention of those of us who support the amendment is to make the law clear for everyone’s sake, and, indeed, to back what the Government want and to try to facilitate that. As I understand it, the definitive legal opinion on the matter comes from a judgment of Lord Donaldson, in Re W (A Minor) Medical Treatment 1992. He said:
“No minor of whatever age has power by refusing consent to treatment to override a consent by someone who has parental responsibility for the minor”.
That is pretty clear, no matter how much such a refusal is taken into account in making clinical judgments. Therefore, it needs putting right.
Young people themselves and practitioners in the field need to be clear about their rights in this matter. The Government may feel that they can rely on case law for this, but that is clearly not working out there in the hospitals. They need to do something more to clarify the law as they and we want to see it and to make a clear statement that can be understood by everyone. Accepting the amendment would be that statement. It would also give the young person the protections of the Mental Health Act. I hope that the Minister will find himself in a position to do so.
Lord Carlile of Berriew: The noble Baroness, Lady Royall, expressed the generous wish that she had been on the committee. I, too, wish that, as I am sure that, had she been on the committee, she would have agreed, like everyone else, with all its conclusions bar one. I hope that she will agree with the conclusions that are drawn from the amendment. The scrutiny committee was absolutely clear that this was about protection. Our concern was that the law was not clear enough to ensure that 16 and 17 year-olds had the same protection as other groups when subjected to the possibility of compulsory treatment. I hope that the Government will take that on board and agree to go forward towards finding something to meet those concerns.
The Countess of Mar: The argument can be taken yet a step further. The Minister might be amused to know that I am going back to CFS/ME. Quite a lot of young people with CFS/ME are regarded as being mentally ill; they are regarded as being made mentally ill by their parents. Therefore, they are put on the at-risk register, and they are made wards of court. Then, they are forced to undergo psychiatric
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I do not know whether the Minister feels able to address that argument on this amendment. These children are not mentally ill; they are physically ill. I find it iniquitous that they are treated in the way that they are by some practitioners. It is a few practitioners, but it does a huge amount of harm to the young people, and it is lasting harm. One young man was admitted to the psychiatric unit of Great Ormond Street hospital, and it has taken him five years to speak to strange adults, so disillusioned has he been by the treatment that he received.
Lord Hunt of Kings Heath: It has been an interesting debate. I hope that I can allay the fears expressed by noble Lords. On the question of the law, we first point to the Family Law Reform Act as setting out such persons as are assumed to be capable of consent on their own behalf to any form of treatment. Where they do consent, a person with parental responsibility cannot override it.
I have listened with interest to the comments made about case W. That is an old case; we think that more recent cases demonstrate the trend towards greater autonomy for young people. In view of the comments that I have heard tonight, I undertake to put that together and write to noble Lords, so that they can see how we have reached that view. Section 131(2) of the Mental Health Act builds on what we believe to be the law in relation to the Family Law Reform Act to make it clear that young people of 16 and 17 in addition can agree to being admitted to hospital for treatment and treated informally on their own behalf, regardless of the wishes of the person with parental responsibility.
I also understand that it is important for us to be able to clarify the law if there is confusion among practitioners. The proper place to clarify the law would be through the code of practice. Our policy on the code is towards giving the views of young people greater autonomy. The draft revised code makes it clear that a 16 or 17 year-old should not be treated for mental disorder on the basis of consent from someone with parental responsibility. If they refuse to give consent or are unable to do so, they can be treated under the Mental Health Act. The code also identifies the cases, albeit likely to be rare, in which it may be appropriate to consider using Section 25 of the Children Act. The guidance in the code of practice also goes on to state that the views of a Gillick-competent child under 16 should not be overridden by someone with parental responsibility.
We believe that the issues concerning consent for treatment of under-18s are best dealt with through guidance in the code of practice, where we can go into greater detail in this complex and important area than in legislation. It can also be updated more easily in line with developments in case law and professional practice. From what I have heard this evening, one can see the critical importance of ensuring that professionals are clear on what the law is and what their competence is to make decisions in that context.
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There is clearly support for 16 and 17 year-olds capable of expressing their own wishes to have their consent or refusal to consent to treatment and admittance to hospital for mental disorder protected in the Bill. Where they consent to admission and treatment in hospital for mental disorder, their consent should not be overridden by a person with parental responsibility for them. Where they do not consent to admission and treatment in hospital for mental disorder, their lack of consent should not be overridden by a person with parental responsibility for them.
In view of what I have heard tonight, I will see whether the Government should table an amendment in this area. I will look at the issue of case law, in order to update the House on our current view of where the law stands, but I also commend to noble Lords the importance of using the code of practice as probably the most important way of influencing practitioners and informing them of the position with regard to 16 and 17 year-olds.
Earl Howe: It has been a helpful debate. I welcome the Minister’s constructive response, and I am glad that he has taken on board the points that noble Lords have made. I look forward to receiving the letter that he has promised about the case law.
I re-emphasise the difficulty that is often faced by parents in this situation. They are put between a rock and a hard place. As the nearest relative, when confronted by a choice between their child being sectioned and giving consent on behalf of the child, they will almost always give consent on behalf of the child. Either way, they are put in an absolutely invidious position for which the child is likely to blame them for the rest of his or her life. I note the Minister’s view that this is code-of-practice territory. I will have a look at that point and at the draft code and see what it says, but perhaps we can reserve the right to come back to this at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 27:
In the case of an application for admission for assessment and treatment for a mental disorder, whether voluntary or not, in the case of any child or young person under the age of 18 years, a clinician with specialist training in child or adolescent mental health shall assess the needs of the child or young person and a PCT or equivalent health board shall provide for such services and accommodation as are sufficient for the particular needs of that child or young person.
142B Medical assessment by a CAMHS specialist prior to imposition of compulsion for a child or young person
In the case of a minor under the age of 18, who is admitted for assessment under section 2 or admitted for treatment under section 3, one recommendation as specified in these sections shall, except in an emergency where no child or adolescent mental health specialist is available, be made by a qualified child and adolescent registered medical practitioner.
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Wherever under any provision of this Act a responsible clinician is to be appointed if the patient is a minor under 18 that clinician shall, except in an emergency where no child and adolescent mental health specialist is available, be a child and adolescent mental health specialist.””
The noble Earl said: I should like to continue with the theme of children and young people by proposing a number of further changes to the 1983 Act. The first one relates to the need to admit children and young people to a setting that is appropriate for their age. This is recommended in the National Service Framework for Children, Young People and Maternity Services. It was endorsed by the joint scrutiny committee on the 2004 Bill and acknowledged by the Department of Health in its response to the Bristol inquiry.
The amendment would mean that an assessment of therapeutic benefit and safety of a young person would have to be carried out, and a decision made as to whether a place on a CAMHS ward or on an adult ward would be most beneficial. The amendment does not seek to demonise adult wards or staff working on adult wards. I understand that there are occasions when it is more appropriate in developmental terms for a young person to be on an adult ward. However, there is extreme concern among service users, carers and professionals that young people inappropriately placed on adult wards have been subject to harassment, abuse and have suffered significant traumatic stress—all of which has affected their ability to engage with services in future. Young people sometimes hide their symptoms because they are frightened that they will be sent back to an adult ward. The trauma is especially great when the child is under 16, which is why I propose that such children must always be admitted to a CAMHS ward. Admission to a CAMHS unit offers many benefits: the wards tend to be smaller, the practitioners have expertise in working with young people and their families, and the young people have access to education facilities.
10.15 pm
The next part of the amendment aims to ensure that unless there is an emergency, at least one CAMHS specialist is involved if there is any question of a young person under 18 being detained under the Mental Health Act. This proposal accords with a recommendation by the joint scrutiny committee on the 2004 draft Bill. The reason for it does not, perhaps, need explaining at any length. Children and young people are not the same as adults. The way that they process difficulty and distress is different and therefore they need specialist clinical support and knowledge if their needs are to be met and understood. That means having separate and distinct arrangements whenever assessments have to be carried out.
The final part of the amendment is intended to ensure that the clinical supervisor of a child or young person admitted under compulsion is a CAMHS specialist. This proposal picks up a theme in the National Service Framework for Children, Young People and Maternity Services—standard 9—which states:
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“The different range and prevalence of serious disorders in childhood compared with adolescence means that services for these two broad age groups have to cater for a different range of needs, which need to be reflected in the specific skills of the staff working with them”.
Therefore, I feel very strongly that it would be appropriate for compulsory admissions to be subject to the same rigorous specific skills requirement.
A great deal can be done for young people whose illness is diagnosed quickly. Teams working with young people, such as early intervention psychosis teams, with CAMHS staff attached to them, work to try to keep young people integrated into their homes and communities. The whole emphasis is on rehabilitation and recovery, encouraging patients to stay in education or to get a job, rather than the all-too-frequent pattern in adults, where there is a diagnosis of incapacity leading typically to stagnation and inactivity.
Government policy is quite clear that CAMHS specialists work with young people aged 16 to 17, but that is simply not happening in parts of the country. Young people fall through the net with neither CAMHS nor adult mental health services owning them; in other areas there is an equally bad situation where adult services are deemed to be appropriate for 16 and 17 year-olds, when they are simply not appropriate. I hope that the Government will use the opportunity provided by the Bill to put in place some clear statutory requirement to protect children and young people who find themselves subject to the mental health system. I beg to move.
Lord Williamson of Horton: These are important amendments in relation to children and young people and they are what I would describe as “make improvements now” amendments. They are directed not at what the Government have proposed but at improvements that we would like to see now, because this Bill is before us. They are important in particular for young persons of 16 to 17 years of age. As we all know, many mental health problems, such as schizophrenia, occur for the first time often at that age—and it is important that they should be put in the best possible situation at that age.
The motivation for the amendment is that we do not find in the legislation or draft legislation a sufficient differentiation of the care of children and young people from the care of adult patients. It is not at all a theoretical point. There are a good number of young people in adult mental wards. YoungMinds calculates that of almost 1,000 young people admitted to adult wards, the average length of stay was more than a month, and that in the three years to 2001 about 62 per cent of all under-18s admitted under the Mental Health Act went into adult wards.
We do not complain about how adult mental wards are administered. We think that a great deal of good work is done there, but we claim that the cases should be specially assessed and that an age-appropriate setting is found.
I am sure that the Minister is a little fed up with hearing about the Scottish legislation, but he has to; it is part of the lesson that we have to put across in this
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Finally, I think that the Children’s Commissioner has put an embargo of Tuesday morning on the report he is just about to publish—a huge report—on this specific subject. Of course he must have expected that we would go on with our debate into Tuesday, and he was not far off the mark. But I believe that we are able just to refer to its existence. It is a substantial report. I do not know whether the Minister has read it yet. I have read it. It is an important report, which deals with the appropriateness, or not, of admitting children and young persons to adult wards. It has substantial information from individuals who have given evidence to the Children’s Commissioner. The report will certainly influence the debate, whatever is decided here in the next 10 minutes. I draw the Committee’s attention to it. It goes very strongly along the lines advanced by the noble Earl in this amendment, which I support strongly, and I hope that we can arrive in due course at a satisfactory solution on it.
Lord Patel of Bradford: It is a regrettable fact of the psychiatric provision in this country that mental health services that were formerly designated for adults are regularly employed for the reception of children and adolescents under the age of 18. Given that a number of adult psychiatric in-patient facilities can be fairly dysfunctional places on their own terms, they are unlikely to be suitable places for vulnerable children.
The Mental Health Act Commission has applied its monitoring role in studying this matter in relation to detained patients. I rise to inform the Committee of some of the findings to give an indication of the scale of the problem.
I must preface my remarks with a warning that I can only paint a partial picture: the Mental Health Act Commission is not empowered to collect data or monitor the treatment and care of informal patients; and I note that this amendment seeks, quite understandably, to provide protections to children and adolescents regardless of their legal status in the psychiatric system. I can only give an outline of the scale of the problem in relation to detained patients, and the Committee must be left uninformed of the total numbers of inappropriate admissions of children and adolescents across the psychiatric system as a whole. I would have that remedied for the future, but that is for an amendment later in our Committee’s deliberations.
In the usual course of its visits to hospitals between October 2004 and November 2006, the Mental Health Act Commission encountered 116 adult wards where one or two children under the age
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Counting heads on the Commission’s visits to hospitals cannot provide systematic data on the number of children on adult wards. In an attempt to get such data, the Mental Health Act Commission asked services to notify them of any occasion when a patient under the age of 18 was admitted to an adult ward under the detention powers of the 1983 Act. Between April 2003 and October 2006 we received 1,308 such notifications. That is a rough average of one admission every day over the three and a half year notification period. Furthermore, we are not at all convinced that we were notified of all such admissions under the Act. Voluntary notification exercises are inherently unreliable and, of course, these figures do not include those occasions when other routes—such as informal admission or the powers of the Children Act—were taken to ensure the admission of a minor.
Just over half of these admissions to adult facilities were 17 year-olds, with most of the remainder being 15 or 16. There were rare but extremely concerning examples of younger children being admitted to adult facilities under the powers of the 1983 Act. These involved 22 14 year-olds, three 13 year-olds and two children under the age of 12. The care packages provided to these children and minors was often inadequate, despite the best intentions of staff. Let me provide noble Lords with some examples. While collating these examples, I was extremely alarmed and concerned. If I was a parent of one of these children, I would be expecting not only this House, but the Government to take immediate and urgent action.
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—421 of them—had a responsible medical officer who specialised in child and adolescent psychiatry. Of the 409 girls, more than three-quarters—322 girls—were detained on mixed-sex wards. As a parent, I find this situation completely unacceptable. Nearly one-third—412 children—did not appear to have an identified social worker. One-third—434 children—did not have an identified key worker. One in 10—126 children—did not have an identified primary nurse. It is also notable that half—that is, 648 of these admissions—were classed as emergency admissions, although only a small number—only 17—were admitted under the emergency powers of Section 4 of the Act. One such patient was 10 years old.
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