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Introduction
The year 2018 may see the introduction of new Deprivation of Liberty Safeguards for young people.
For many clinicians, it is a difficult business keeping abreast with changes to the law affecting young people’s mental health. Several significant changes in legislation affecting children’s mental health have taken place over the last two decades and this seems likely to continue.
The Human Rights Act 1998 and the case law deriving from it, the Mental Capacity Act 2005, and the Mental Health Act, amended in 2007, count among these. In addition, the Policing and Crime Act 2017 has changed how section 136 of the MHA is used. In England, the introduction of Care, Education and Treatment Reviews (CETRs) for young people in March 2017 require that a multi-agency process be followed for young people with learning disabilities, including autism, before an admission to an in-patient facility takes place. The pending changes brought about by the Law Commission report and recommendations is likely to result in a new Act sometime soon and will introduce another layer of bureaucracy to the admission and treatment of young people to in-patient units.
It’s useful to remember that the Mental Health Act (MHA) applies to England and Wales but Wales has its own Code of Practice for the MHA 2008, updated in October 2016, with a short section on children and young people. The Mental Capacity Act (MCA) applies to England and Wales and the MCA Code of Practice applies to both countries. Scotland has its own legislation which will not be discussed here.
Though much (may be) taken, much abides
The Human Rights Act 1989 highlights the rights of children as individuals, and a number of important cases that have been heard in the courts have had a direct effect on psychiatric practice. The future of the Human Rights Act 1989 had been brought into question before the referendum to leave the European Union in 2016 but its life seems even more uncertain as a result of it.
The Children Act 1989 and the amendments made in 2004, however, emphasise parental responsibility, the private and public law elements and why a child or young person might need to be assessed using this legal framework. This seems likely to stay and is widely seen as a robust piece of legislation.
The continuing problem of no beds
For doctors, these developments have occurred in the wider context of the Care Quality Commission (CQC) assuming responsibility for monitoring the MHA in England and Wales in 2009. Systems are still lacking for collecting data on the number of young people detained under the Mental Health Act. For the CAMHS clinician in many parts of the country, however, the main concern is the lack of available beds for young people who need emergency admissions. Lengthy delays before a suitable psychiatric in-patient bed can be found in an adolescent unit are still occurring and often these beds are far from home. If the problems concerned physical illness rather than mental illness there would be a greater likelihood of this situation being seen to be the national disgrace that it really is.
Case law and the deprivation of liberty
Case law has continued to evolve in the wake of the so- called Cheshire West case. As is now well known this judgment was given on the combined cases of Cheshire West and P and Q (P v Cheshire West & Chester Council and another and P and Q v Surrey County Council [2014] AC 896 at the end of 2014. Some aspects of the case are relevant to adolescents, as the subjects P and Q, otherwise known as MIG and MEG, were aged 16 and 15 at the start of the proceedings, but 18 by the time of the final hearing in 2010. The judgment, delivered by Lady Hale, clarified that the definition of deprivation of liberty meant that a person is “under continuous supervision and control and...not free to leave”. Moreover, at paragraph 46, “what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities”.
In the case of P and Q the conclusion was that they had both been deprived of their liberty and that the deprivation was the responsibility of the state.
Before Cheshire West a deprivation of liberty was considered to involve three components deriving from European law: an objective element, i.e. actual confinement for a non-negligible period of time; a subjective element, i.e. that valid consent to the confinement had not been given; and that the State was responsible for the deprivation of liberty. At paragraph 54 of the judgment Lady Hale says that similar constraints would not necessarily amount to a deprivation of liberty “if imposed by parents in the exercise of their ordinary parental responsibilities”. Subsequently case law had established that although someone with parental responsibility could authorise restrictions on the liberty of his or her child this could not amount to a deprivation of liberty (see RK (by her litigation friend and the official Solicitor) v BCC, YK and AK. 2011. EWCA Civ 1305).
However, in a very recent, lengthy and comprehensively referenced judgment, Sir James Munby has ruled that a parent with parental responsibility can provide consent to a confinement that would otherwise be a deprivation of liberty for a young person who lacked Gillick competence, as this fell within the scope of parental responsibility.
In this case, D (A Child) [2017] EWCA Civ 1695 where D was a 16 year old with ADHD, Asperger’s syndrome, Tourette syndrome and a mild learning disability, many points especially relevant to clinicians are made but just three will be mentioned here. First, that Gillick capacity can be attained either below the age of 16 or above. In Sir James’ words at paragraph 137: "there is nothing to suggest that there is some “bright line” distinction between the 15 and the 16- year old".
Second he points out that parental responsibilities are evolving and reflect the general standards expected in society. And third he observes that the MCA makes no statutory provision for the role of those exercising parental responsibility.
Consent and confidentiality
Clinicians seeking to gain consent are now going to be influenced by the Montgomery case which broadly echoes existing professional guidelines (such as those of the GMC). This landmark case in the Supreme Court in 2015 (Montgomery (Apellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 has widely been interpreted as ending the principle of the Bolam test which had been established in 1957.
Confidentiality and its limits (which it turns out are many) in the doctor-patient relationship is also an evolving topic. Clinicians need to be aware of the professional guidelines (the GMC has just updated these in 2017) and also the seemingly broadening definitions of the public interest.
Cases of adolescent refusal of treatment also continue to vex both clinicians and the court in the face of mounting recognition of adolescent autonomy. Similarly, the emphasis has been shifting away for some time now from parental rights to parental responsibility.
The Mental Health Act
The Mental Health Act was last amended in 2007 with a new Code of Practice issued in 2015 (Department of Health 2015). The amendments to the MHA then included changes to terminology, roles and aspects of treatment. For example, the definition of mental disorder has changed and there is now a requirement in some sections for appropriate medical treatment to be available. There is the introduction of Approved and Responsible Clinicians and Approved Mental Health Practitioners (AMHPs). There are also some specific changes to aspects of treatment that affect young people under 18 years such as age-appropriate environments and the administration of ECT. There is no lower age limit in using the MHA and a case has been published illustrating its use in an eight-year-old child (Thomas et al 2015).
It should be mentioned here that, although not directly concerning the MHA, the confusing term zone of parental control only ever appeared in the MHA Code of practice for England (not for Wales) in 2008 and then has passed out of use in the current version (Department of Health 2015). It has now been replaced by the more restrained term scope of parental responsibility. Nevertheless, it has continued to be used in court as if it were a well-defined entity.
It is also noteworthy that there have been changes to the use of section 136 of the MHA following the introduction of the Policing and Crime Act 2017. The time of detention reduces from 72 to 24 hours; no longer can police stations be used as places of safety for young people under the age of 18; and the police are to consult with mental health professionals before using the section.
The Mental Capacity Act
Whilst the MCA can only be used for those who lack capacity over the age of 16, the deprivation of liberty safeguards (DOLS), as currently configured cannot be used for anyone under 18. Clinicians need to know about the principles of this Act, how to undertake capacity assessments and also the interaction between this Act and the MHA.
The Law Commission envisages a fusion of the MHA and the MCA in the future (Law Commission 2017), but for young people under the age of 18 this will be complicated by the interaction with provisions such as the Children Act and Gillick competence.
The future for those in between
For those young people between 16 and 18 whose mental disorder does not warrant using the MHA, a no-man’s land has developed for those who lack capacity. Secure accommodation under section 25 of the Children’s Act will not be appropriate for many; and court authorisations are costly and rarely sought in practice. Until recently it has been understood that parental consent cannot be relied upon to authorise a deprivation of liberty (although see above in the case of D) and there has been uneasy concern about safeguarding the article 5 rights of such young people.
The Law Commission review in March 2017 makes the case for reform well, and the Commission has clearly been concerned about the use of parental consent to authorise what would otherwise be a deprivation of liberty for 16 and 17 year olds. It suggests the swift abandonment of the DOLS and the replacement with Liberty Protection Safeguards which will apply to young people over the age of 16. These recommendations are accompanied by a draft Bill, the Mental Capacity (Amendment) Bill.
As outlined in the proposals, decision makers will need to assess the deprivation of liberty as being justified; there will be an internal review; and a new role created of an Approved Mental Capacity Professional to give independence to the arrangements.
There are however significant questions in these proposals for clinicians. Whist these safeguards are intended for those of unsound mind they are not for the authorization of assessment and treatment of mental disorder. Neither are they just for those who lack Gillick competence: an application to either the Family Court or the Family Division of the High Court is required for such cases.
It is therefore still not clear how these new proposals will interact with the Children Act and Gillick and take account of parental responsibility, which applies until a child reaches the age of 18. In the draft Bill we are told that “substituted consent”, i.e. by someone with parental responsibility has not been expressly prohibited and that the Liberty Protection Safeguards provide that parents have rights to be consulted.
Finally the draft Bill firmly dismisses the idea that extending the new scheme would increase the burdens placed on health and social care services. The reasoning here appears faulty and to be based on the fact that court authorizations have not been occurring although they should have been.
Whether or not these safeguards and the new Bill will lead to an enhanced process for young people and their families will depend on a workable system being deployed, which is properly resourced and which takes into account the demand on the professionals expected to enact it. With the number of in-patient beds for young people with mental disorders at critically low numbers and young people, their families and clinicians in risky and distressing situations when admission is being contemplated, it is hard to see how changes in legislation alone are going to lead to improvements. There’s the real injustice.
References
Department of Health (2015) Mental Health Act 1983: Code of Practice London: The Stationery Office
Law Commission (2017) Mental Capacity and Deprivation of Liberty available at https://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/ accessed on 30.11.17
Thomas, V. et al (2015) The application of mental health legislation in younger children Psychiatric Bulletin 39, 302-304
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