Treating the Youth of Today

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Treating the Youth of Today Overview of the
legislation

• Dr. Enys Delmage, MBChB, MRCPsych, BA Phil,
  MMedSc, LLM
• Specialist Registrar in Adolescent Forensic
  Psychiatry

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Legislative procedures enabling treatment

• MHA 1983
• MCA 2005
• Common Law (duty of care and parental
  responsibility)
• Children Acts (19892004)
• Inherent Jurisdiction
• NOT juvenile justice system OR education
• Dont be anxious

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Child or young person?

• Child
• Children Act 1989 s105(1) and United Nations
  Convention on Rights of the Child (Article 1)
• Any person under the age of 18
• MHA (s55) Childunder 14, young person14, up
  to 18

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What can children do?

• 16 and 17 year olds leave full-time education,
  get full-time employment, consent to sexual
  intercourse or marriage (with one parents
  consent), or, under the Family Law Reform Act
  1969 (s8(1)) can consent to medical treatment
• Children and Young Persons Act 1933 (s50) aged
  13-16 can work part-time (children aged under
  13 cannot legally work)
• Age 14 can go to the pub, but no booze!
• Age 14 you are responsible for wearing a
  seatbelt
• Age 16 can drink beer or wine in a restaurant,
  with a meal
• Age 17 can purchase an air rifle
• Age 18 can buy fireworks
• English Criminal Law aged below 14 still liable
  to criminal sanction aged below 10 not

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Are age boundaries appropriate?

• Children develop at different speeds
• Gillick v West Norfolk and Wisbech AHA 1985 1
  AC 112
• sufficient understanding and intelligence to
  understand fully what is proposed
• Lord Templeman disagreed There are many things
  which a girl under 16 needs to practise but sex
  is not one of them
• Need for Gillick competence inflexibility of age
  markers
• Children under 16 are now afforded more rights to
  consent (but not refuse), instruct solicitors,
  etc.
• Gillick-competent person under 18 objects to
  admission?
• Has been overridden by parental responsibility
  Re R (A Minor) (Wardship Medical Treatment)
  1992 1 FLR 190 and Re W (A Minor) (Medical
  Treatment Courts Jurisdiction) 1992 4 All ER
  627

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Choosing?

• Mears and Worrall (Psychiatric Bulletin)
  surveyed psychiatrists views
• Lack of definitive guidelines re which statute
• Confusion re consent to treatment
• Conflicts highlighted between social services and
  psychiatrists
• Worried re stigmatising effect of the MHA

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MHA adaptations for young people

• If patient under 16 yearly automatic MHRT
  (3-yearly for adults when renewed)
• Section 131(1)(2) MHA 16 years can admit
  themselves informally even if parents object (if
  capacitous Re MB (Medical Treatment) 1997 2
  FLR 426 as test of capacity)
• If wishing to admit themselves against parents
  wishes under 16 must prove Gillick competence
• If parents object to that admission, their
  opinions should be seriously considered, but
  will not prevail (MHA 1983 Code of Practice
  (amended 2008))

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MCA

• Over 16 presumed capacitous until proven
  otherwise
• Under 16 presumed to lack competence until
  proven otherwise
• 16 and 17 year olds can no longer be kept in
  hospital under parental responsibility if they
  retain capacity and refuse admission MCA 2005
  (enforced Jan. 08)
• 16 and 17 year olds lacking in capacity can be
  admitted and treated under MCA
• ..or parental responsibility (R v Kirklees MBC ex
  parte C 1993 2 FLR 187 admission)
• Treatment remains a grey area for 16/17 year olds
  under parental responsibility
• s21 of MCA Lord Chancellor may (by order) make
  provision as to the transfer of proceedings
  relating to a person under 18 from the Court of
  Protection to a court having jurisdiction under
  the Children Act, or vice versa

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MCA limitations

• MCA not applicable to those under 16
• If being kept in hospital under parental
  responsibility, no effective means of challenging
  their informal detention ?breach of Article
  5(4) too arbitrary
• Detention under common law too close to
  Bournewood
• If nobody with parental responsibility and
  incompetent child under 16 (very unlikely)
  court normally help (inherent jurisdiction)
• 16 and 17 year olds may not make LPAs
• 16 and 17 year olds may not make advance
  decisions re medical treatment
• Cannot detain a 16 or 17 year old under MCA if
  the conditions amount to deprivation of liberty

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Interesting quirk MCA Code of Practice

• Lack of capacity may be for reasons other than
  those covered in s2 of the MCA
• S2 an impairment of or a disturbance in the
  functioning of mind or brain MCA applies as it
  would to adults
• MAY lack capacity to consent because you are
  simply overwhelmed by the implications of the
  decision MCA cannot be used
• Some 16 and 17 year olds might be incapable of
  making treatment decisions due to developmental
  immaturity
• Court may intervene for 16 and 17 year olds
  incapable of consenting
• 18 year olds?

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Children Act

• Details who has parental responsibility may
  determine whether a child is admitted/treated
• Section 8 orders
• Prohibited steps order need consent of court to
  exercise parental responsibility over a specific
  issue
• Specific issue order gives directions regarding
  an area of parental responsibility often where
  parents are in dispute Re HG High Court
  sanctioned sterilisation of a mentally subnormal
  17 year old

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Intervention under the CA (1)

• Child in need vs. child in danger of significant
  harm
• Child in need provides support only (Part III
  of the Children Act 1989)
• Unlikely to achieve or maintain
  health/development without LA
• Health or development likely to be significantly
  impaired or further impaired without LA
• Disabledmay include child with mental
  disorder, and health includes mental health
• s20 LA must provide accommodation for child in
  need child then becomes a looked after child
  extra duties incumbent upon LA

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Intervention under the CA (2)

• Significant harm Parts IV and V
• Implies that child protection procedures should
  be invoked
• Usually refers to abuse but may not
• Harm ill-treatment or impairment of health or
  development
• May include children with a mental disorder/whose
  parent is suffering with a mental disorder
• Compatible with Article 8 ECHR/HRA
• Care Order (s31) CAUSATION significant harm
  must be associated with sub-standard parental
  care/child being beyond parental control use of
  the word reasonable in the statute

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Secure Accommodation

• S25 allows for the restriction of liberty of
  children
• Used for those with Hx of absconding or that are
  likely to injure themselves or others if in
  non-secure accommodation
• Mostly looked after children (child in need
  that the LA has provided accommodation for under
  s20)
• No good definition of secure accommodation.
• but may include hospitals (A Metropolitan
  Council v DB 1997 1 FLR 767)
• But may not
• Re C (detention medical treatment) 1997 2 FLR
  180 (16 year old anorexic girl in clinic)
• South Glamorgan County Council v W B 1993 1
  FLR 574 (15 year old girl in a psychiatric unit)
• Section 25 provides safeguards

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Section 25 safeguards

• Looked after children must meet the criteria
• History of absconding and likely to suffer
  significant harm
• Likely to injure himself/others if kept in
  non-secure accommodation
• Need Secure Accommodation Order if gt72 hours
  lasts up to 3 months 6-monthly renewals
• Note if not looked after, or accommodated by a
  health or education authority, in residential
  care, nursing/mental nursing home NO safeguards
• Note 2 s25 of CA should NOT cover Rx usually
  done by inherent jurisdiction or under MCA though
  can be done under Section 8

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Inherent Jurisdiction

• Used to resolve issues where there is no
  statutory procedure cannot override statute
• High Court parens patriae
• Needs of the child are paramount for the court
  paramountcy principle is NOT incumbent upon
  anyone else best interests should be a
  significant consideration (MHA 1983 Code of
  Practice (amended 2008))
• Usually used regarding treatment
• Only applicable where child may suffer
  significant harm
• Can make a child ward of the court
• Court gains parental responsibility

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Uses of Inherent Jurisdiction

• Medical or psychiatric examination or assessment
• Medical treatment Re L (Medical Treatment
  Gillick competency) 1998 2 FLR 810 medical
  treatment of a 14 year old boy where parents were
  reluctant to decide Gillick-competent minors
  refusal was overruled, and South Glamorgan CC v
  WB 1993 1 FLR 574 inherent jurisdiction used
  to detain and treat a girl who had refused any
  treatment, as it was in her best interests
• Admission to hospital (for treatment)
• Remains arbitrary

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Parental Responsibility (Common Law)

• All the rights, duties, powers, responsibilities
  and authority of which by law a parent of a child
  has in relation to the child and his property
  s3(1) Children Act
• Who can use it?
• Parents can consent to treatment on behalf of
  their child
• Third parties (residence order, adoption, special
  guardianship order)
• Local Authority EPO or Care Order (NOT police
  protection)
• CAN be delegated by informal arrangement by a
  parent to another person

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Parental Responsibility

• Section 3(5) allows someone (eg. police) without
  parental responsibility to do what is reasonable
  in all the circumstances of the case for the
  purpose of safeguarding or promoting the childs
  welfare
• Just because a child is in social services
  accommodation does NOT mean that the LA have
  parental responsibility
• In emergency treatment situations, the consent of
  any ONE person who has parental responsibility
  suffices (Lord Donaldson in Re R (A Minor)
  (Wardship Medical Treatment)) CA 1989

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Parental Responsibility

• Arbitrary de facto detention under parental
  responsibility informal
• Tested in ECtHR Nielsen v Denmark (Article 5) -
  responsible exercise of custodial rights
• Using it to admit a capacitous and objecting
  16/17 year old violates Article 5, in Jones
  opinion
• Zone of Responsibility
• Can parent reasonably be expected to make the
  decision?
• Is there an indication that they are not working
  in the best interests of the child?

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Parental Responsibility

• Parents have no absolute right of refusal for
  medical treatment childs interests should come
  first (Glass v United Kingdom (pg. 108) LA (via
  care order) or courts NEED to be consulted on
  this (except in emergencies)
• Charlotte Wyatt baby born at 26 weeks doctors
  stated that life-prolonging Rx should not be
  given if she developed a chest infection (best
  interests) parents disagreed court ruled in
  favour of clinicians
• Special cases sterilisation
• Lord Templeman (Re B (A Minor) (Wardship
  Sterilisation) 1987 2 All ER 206)
• In my opinion sterilisation of a girl under 18
  should only be carried out with the leave of a
  High Court Judge
• Gender reassignment? yet to be tested in court
• ECT

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Get to the point Enys what is used?Consideration
s when choosing

• What is the level of capacity required? Does the
  young person have it?
• Protection of Human Rights (conflict between
  Article 8 and Article 2 Article 2 wins)
• What specific treatment decision needs to be
  made? What are the objectives?
• Will the child be afforded better due process
  under one Act than another?
• Safeguards where refusal is overridden
• Age
• Is there a means of external review/audit?
• If in doubt, and since contested cases are rare,
  speak to trust lawyers
• Too much on these slides

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Guidelines admission/treatment for the under 16s

• Gillick incompetent, parents consent
• Parental responsibility if in the zone, Inherent
  Jurisdiction if not, or MHA
• Gillick incompetent, parents refuse
• Inherent Jurisdiction/CA/MHA
• Gillick competent and consents, and parents
  consent
• All parties may legally consent
• Gillick competent and consents, and parents
  refuse
• Gillick competent, so may admit/treat (as long as
  the treatment is in the best interests of the
  child) courts may over-rule
• Gillick competent and refuses, and parents
  consent
• Parental responsibility if in the zone BUT Lord
  Donaldson commented that the importance of the
  refusal increases with age/MHA/Inherent
  Jurisdiction
• Gillick competent and refuses, and parents refuse
  or are unavailable
• Inherent Jurisdiction/CA/MHA
• Gillick incompetent child and parents lack
  capacity, or parents are unavailable
• Inherent Jurisdiction/CA/MHA/Best Interests

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Guidelines admission/treatment for 16 and 17
year olds

• Has capacity, consents and parents consent
• Legally consented parents consent not necessary
• Has capacity, consents but parents refuse
• CAN consent (s8 Family Law Reform Act 1989 and
  Section 131 of MHA) consent can be over-ridden
  by court
• Has capacity, refuses, parents consent
• MHA/Inherent Jurisdiction in extreme
  circumstances (likely death or severe permanent
  injury MHA 1983 Code of Practice (amended
  2008)) doubt should be resolved in favour of the
  preservation of life for those under 18
• Has capacity, refuses, parents refuse
• MHA/Inherent Jurisdiction but see above
• Lacks capacity due to mental disorder, parents
  consent
• Admission Parental responsibility/MCA if no
  deprivation of liberty/MHA/Inherent Jurisdiction
• Treatment in addition to the above, parental
  responsibility (if in the zone) may be used
• Lacks capacity due to mental disorder, parents
  refuse
• Inherent Jurisdiction/MCA if no deprivation of
  liberty/MHA/CA
• Lacks capacity, not due to mental disorder (i.e.
  overwhelmed by the decision), parents consent
• Inherent Jurisdiction/MHA/??parental
  responsibility if in the zone
• Lacks capacity, not due to mental disorder,
  parents refuse
• Inherent Jurisdiction/MHA

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Lord Donaldson
In an emergency act to preserve life
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References

• A Survey of psychiatrists views of the use of
  the 1989 Act and the MHA in children and
  adolescents with mental health problems Mears,
  Worrall Psychiatric Bulletin (2001) 25 304-306
• Children Act 1989 and 2004
• United Nations Convention on the Rights of the
  Child
• Mental Health Act 1983 Mental Health Act 2007
• Mental Capacity Act 2005
• European Convention on Human Rights and
  Fundamental Freedoms
• Re HG (A Minor) (Application for Sterilisation)
  1993 1 FLR 587
• Family Law Reform Act 1969
• Children and Young Persons Act 1933
• Gillick v West Norfolk and Wisbech AHA 1985 1
  AC 112
• Re L (Medical Treatment Gillick competency)
  1998 2 FLR 810
• Re MB (Medical Treatment) 1997 2 FLR 426
• Re R (A Minor) (Wardship Medical Treatment)
  1992 1 FLR 190
• Re W (A Minor) (Medical Treatment Courts
  Jurisdiction) 1992 4 All ER 627
• A Metropolitan Council v DB 1997 1 FLR 767
• HL v United Kingdom ECHR 45508/99
• Nielsen v Denmark (1989) 11 EHRR 175
• MHA manual 9th Edition, pg 463
• Re R (A Minor) (Wardship Medical Treatment)
  1991 4 All ER 177

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Email Address

• enysdelmage_at_hotmail.com