Transcript Interaction of the Children Act, the MHA and the MCA

Treating the Youth of Today
–
Overview of the legislation
Dr. Enys Delmage, MBChB, MRCPsych, BA Phil, MMedSc, LLM
Specialist Registrar in Adolescent Forensic Psychiatry
Legislative procedures enabling
treatment
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MHA 1983
MCA 2005
Common Law (duty of care and parental
responsibility)
Children Acts (1989+2004)
Inherent Jurisdiction
NOT juvenile justice system OR education
Don’t be anxious…
Child or young person?
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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): Child=under 14, young
person=14+, up to 18
What can children do?
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16 and 17 year olds: leave full-time education, get full-time
employment, consent to sexual intercourse or marriage (with one
parent’s 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
Are age boundaries appropriate?
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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: Court’s Jurisdiction) [1992] 4 All ER 627
Choosing…?
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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
MHA – adaptations for young
people
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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))
MCA
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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”
MCA limitations
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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
Interesting quirk – MCA Code of
Practice
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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?
Children Act
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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
Intervention under the CA (1)
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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”
“Disabled”…may 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
Intervention under the CA (2)
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“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
Secure Accommodation
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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…
Section 25 safeguards
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“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 >72 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
Inherent Jurisdiction
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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
Uses of Inherent Jurisdiction
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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 minor’s refusal was
overruled, and South Glamorgan CC v W&B [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
Parental Responsibility
(Common Law)
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“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
Parental Responsibility
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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 child’s 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
Parental Responsibility
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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?
Parental Responsibility
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Parents have no absolute right of refusal for medical treatment –
child’s 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 lifeprolonging 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
Get to the point Enys: what is
used?
Considerations when choosing…
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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…
Guidelines – admission/treatment
for the under 16s
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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
Guidelines – admission/treatment
for 16 and 17 year olds
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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:
Lord Donaldson
In an emergency:
act to preserve life
References
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“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: Court’s 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
Re J (Specific Issue Orders) (Muslim Upbringing and Circumcision) [2000] 1 FLR 571
Glass v United Kingdom [2004]1 FLR 1019
Charlotte Wyatt: [2005] EWCA Civ 1181, [2005] EWHC 2293 (Fam), [2005] EWHC 693 (Fam), [2004] EWHC
2247 (Fam)
Email Address
[email protected]