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THE LEGAL FRAMEWORK True or false The MHA cannot be used under the age of 12

THE LEGAL FRAMEWORK True or false The MHA cannot be used under the age of 12 The Zone of Parental Control is enshrined in the Children Act Article 8 of the Human Rights Act does not apply to children The Concept of parental authority is codified in the MHA

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THE LEGAL FRAMEWORK True or false The MHA cannot be used under the age of 12

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  1. THE LEGAL FRAMEWORK True or false The MHA cannot be used under the age of 12 The Zone of Parental Control is enshrined in the Children Act Article 8 of the Human Rights Act does not apply to children The Concept of parental authority is codified in the MHA The MHA is the only legislation that gives authority to treat children and young people for mental disorder In a 14 year old, when making decisions about consent, the wishes of the parents prevail The United Nations Convention on the Rights of the Child is enshrined in UK law Section 25 of the Children Act allows for the legal detention of children

  2. THE LEGAL FRAMEWORK A 15 year old girl is seen after an overdose. She has taken a potentially lethal combination of pills, after an argument, with short lived intention to die. She did not disclose her actions voluntarily, but her mother was in the house, guessed, and she confessed. She came to hospital voluntarily. She has some depressive symptoms, but is not suicidal at present. It is her second overdose, having taken a smaller, more covert one in similar circumstances 3 months ago. She lives with her mother, her parents having split up 6 months ago. She is struggling at school both socially and academically but does not have learning difficulties. She has regular thoughts of suicide, and notably her mother has a history of mental health problems and has taken overdoses herself in the last 6 months. You think she needs outpatient individual therapy. She says that she will only come along to therapy if you keep her mother out of it, and do not tell her mother anything. If you do not abide by this, she will decline treatment. What are the issues clinical, ethical and legal

  3. THE MENTAL HEALTH ACT 1983 Should all be familiar with it. Major differences to previous legislation was the creation of the MHAC (consent to treatment, MHRT, additional protections) and the treatability test

  4. THE MENTAL HEALTH ACT 1983 Revised 2007 Should all be familiar with it. Community Treatment Orders 17A Tribunals and Appeals The Zone of Parental Control

  5. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Types of decisions a person with PR can make in relation to the care and treatment of their child Each decision needs to be made in the particular circumstances of each situation Not decided by social norms but by the dynamics of that particular parent-child relationship The main areas for debate Does this fall within the area of usual parenting decision Does the parent have the capacity to make the decision Is the parent acting in the child’s best interests If all three answered yes then may rely upon the parents consent If not then less confident that the decision lies in the ZOPC

  6. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) (ZOPC) What does it do? In the incapacitated minor it allows parents to consent on their behalf if the decision is felt to fall within the ZOPC In the capacitated minor over 16 very little. The MHA gives guidance NOT to use parental consent in a capacitated minor over 16. Parents will be consulted about treatment decisions when capacity is in question in establishing best interests. In the capacitated minor under 16 very little. The MHA gives guidance that it would be ‘UNWISE’ in view of recent European Case Law to rely upon parents consent to override the refusal of a capacitated minor. Parents will be consulted about treatment decisions when capacity is in question in establishing best interests.

  7. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Why is it such a shock ? For years we have relied upon Law Lords rulings on Case Law that support the over-riding of the refusal of capacitated minors To be more exact…….

  8. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Family Law Reform Act 1969 …. “the consent of a minor who has attained the age of 16..shall be as effective as it would be if he were of full age : and where a minor has given effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian” AND Lord Scarman 1986 ( Gillick versus West Norfolk and Wisbech AHA) … “the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed” AND

  9. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) AND FINALLY….. Lord Donaldson discussing the Gillick case Case of Re:R ( 15 year old ) and Re:W ( 16 year old) …. “I do not understand Lord Scarman to be saying that, if a child was ‘Gillick competent‘…the parents ceased to have a right of consent as contrasted to have a right of determination, i.e. a veto. In a case in which the competent child refuses treatment, but the parents consent, that consent allows the treatment to be undertaken lawfully”.

  10. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Note : The higher gravity given in the law to refusal to consent in the past. Higher level of sophistication is felt to be required to balance up and refuse a decision than to balance up and consent to a decision

  11. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) ‘The existing legal framework operates on the principle that parents are responsible for care and professionals for healthcare of young people. Although adolescent autonomy is recognised and given increasing respect in the law, the family is still considered to be the best organisation in which to raise children and make decisions about them. At the boundary of adolescent consent and autonomy the following question is asked ‘when is it right for children to step away from the protective decision making of family and ultimately the state ?’ (Moli Paul 2004 APT)

  12. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) So where did it come from You could say it was already there but now the mortar has set in a particular position THE MHA 1983 revised 2007 states that it arises from European Case Law quoting the Nielsen versus Denmark Case……… (Always remember that each Case in Law draws upon a list of judgements given before)

  13. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Nielsen v. Denmark , 11 Eur. H.R. Rep 175 (1989),   28-11-1988 Facts: The mother and sole holder of parental rights of a 12-year-old child requested the hospitalization of her child in psychiatric ward of a State hospital for 5 months. However, the child expressed his wish not to be incarcerated and wanted his maturity acknowledged. Complaint: the applicant is the child who was hospitalized by his mother. He claimed the authorities breached his right to liberty guaranteed by article 5 of the Convention. Holding: the ECHR held that the protection afforded by article 5 (right to liberty) also covers minors. However, article 5 did not apply in this particular situation and the Court did not find any violation of the child's right to liberty by the domestic authorities. Reasoning: the minor was hospitalized at the request of mother, sole holder of the parental rights. The Court examine the applicants' actual situation to determine if there had been deprivation or restriction of liberty to which article 5 applied and looked at the type, duration, effects and manner of implementation of the measures in question. It concluded that the hospitalization of the applicant did not amount to deprivation of liberty but was a responsible exercise by the mother of her custodial rights in the interest of the child.  

  14. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) In short The Nielsen case did rule in favour of a parent operating their parental authority but... Although that case decided that the mother could lawfully consent to the child being admitted to a psychiatric hospital in those particular circumstances, it also said clearly that the rights of a parent were not unlimited That is, it was beginning to pay attention to the limits of parental control and authority

  15. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) • Extensive trawl of European Case Law testing the Human Rights Act • Discussion with lawyers who wrote ‘Legal Aspects of the Care and Treatment of Children and Young People with Mental Disorder 2009’ • Discussion with Professor Richard Jones, Consultant in Mental Health and Community Care Law • Contact with the DOH over the ZOPC • It is based upon one case, but that case drew upon many other rulings and different competing interests

  16. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) So what is it about ? Some would say it was already there in a form… The Hewer and Bryant Law Lords ruling of 1969 Lord Denning ruled concerning specific parental rights of custody that such a right…. “is a dwindling [one] which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice” It appears that for the first time the MHA has directed when that right of control absolutely stops and when it is a grey area

  17. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Does it pull upon anything else? Article 3 HRA Right to freedom from inhuman or degrading treatment or punishment An absolute right Patients with or without capacity remain under Art 3 protection Inhuman treatment must go beyond that inevitable element of suffering or humiliation that may be connected with legitimate treatment Clinical decisions that are proportionate, therapeutically necessary and in keeping with accepted practice are very unlikely to be outside the margin

  18. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Does it pull upon anything else? Article 5 HRA Right to liberty A qualified right No one shall be deprived of his liberty save in circumstances set out in article 5 which includes the lawful detention of persons of unsound mind

  19. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Does is pull upon anything else ? Article 8 Right to respect for private and family life A qualified right Para 1: Everyone has the right to respect for private and family life, his home and his correspondence Para 2: There shall be no interference by public authority with this right except such as in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for prevention of crime and disorder, for the protection of health and morals or for the protection of rights and freedoms of others. If Para 1 is infringed have to qualify why with Para 2 Note article 8 tensions Competition between competing rights of young people and family

  20. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Article 8 continued Proportionality – clinical intervention needs to balance the severity of the effect of the intervention with the severity of the presenting clinical problem i.e. be a proportionate response to a clinical scenario. Margin of appreciation – domestic states have different accepted clinical practices and standards; hence the margin of appreciation is accepted as being very wide to reflect this. Therefore, clinical decisions which are proportional, therapeutically necessary and in keeping with accepted clinical practice are very unlikely to be outside this margin Private life – this concept covers the right to develop one’s own personality and to create relationships with others. It contains both positive and negative aspects. Competing Article 8 rights Cases may involve competing Article 8 rights betweenchildren and their parents or carers. In any case where the Article 8 rights of parents and those of a child are at stake, the child’s rights must be the paramount consideration; in any balancing of interests, the interests of the child must prevail.

  21. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Note the case of Yousef versus Netherlands 2003 This involved a child born to Middle Eastern father and Dutch mother. The child lived with her mother. Parents never married but lived together for one year. Father went back to Middle East. The mother developed terminal illness, and asked her family to look after the child. In her will she expressed her view that her child was best brought up by her family, with her name. In her terminal decline the father returned and had fortnightly contact with the child. On her death, he made application for the child to put in his care, her name to be changed to his. The European court noted that this was a collision of child’s and father’s article 8 rights. It ruled that in "judicial decisions where the rights under article 8 of parents and of a child are at stake, the child's rights must be the paramount consideration". This tension was previously examined in Hendricks v Netherlands 5 EHRR 223 1982: denial of access by divorced father to child. The ruling was the same, that “When there was a serious conflict between the interests of a child and one of its parents which could only be resolved to the disadvantage of one of them, the interests of the child had to prevail under Article 8(2)”

  22. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) Does it pull upon anything else? UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD (UNCRC) Not part of domestic law but ratified by our Govt and Govt have committed to doing all it can to implement it It is used to adjudicate if there are tensions between adults and children, or when children are involved in a case Article 5UNCRC Parental guidance and the child's evolving capacities The State must respect the rights and responsibilities of parents and the extended family to provide guidance for the child which is appropriate to her or his evolving capacities.

  23. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) • Does it pull upon anything else? • Article 12 UNCRC The child's opinion • States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. • 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law

  24. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) • Does it pull upon anything else? • Article 16 UNCRC Protection of privacy • No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. • The child has the right to the protection of the law against such interference or attacks.

  25. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) In summary the ZOPC draws upon existing Law Lords rulings, existing Statute Law, the Human Rights Act and the United Nations Convention on the Rights of the Child and gives a view. It is a view in Law. It is a line in the sand. It will be contested by parents who are removed from the right to direct the care, treatment and safety of their children. That contest will explore the weighting of autonomy versus benificence in relation to particular cases

  26. THE ZONE OF PARENTAL CONTROL (MHA 1983 REVISED 2007) So what do you think. Do the following things fall within a ZOPC in your view Return of an informal patient, being assessed for DSH aged 13 to an inpatient unit Restriction of day leave for an informal 16 year old, with psychotic illness, who has capacity Insistence that a 15 year old on an inpatient unit informally goes to the unit school The use of injectable medication in a 14 year old severely disturbed with PTSD on an inpatient unit The outpatient treatment of an 8 year old for ADHD who does not want treatment The outpatient treatment of an 13 year old with depression with suicidal thoughts who does not want treatment The measurement of blood pressure in a 10 year old already treated for ADHD

  27. CAPACITY AND DECISION MAKING So what do we do from now on Capacity in decision making is one of the keys MENTAL CAPACITY ACT 2005 ‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ This means that a person lacks capacity if: • they have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and • the impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.

  28. CAPACITY AND DECISION MAKING • MENTAL CAPACITY ACT 2005 • An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. • Does the person have a general understanding of what decision they need to make and why they need to make it? • • Does the person have a general understanding of the likely consequences of making, or not making, this decision? • • Is the person able to understand, retain, use and weigh up the information relevant to this decision? • • Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful? **NB Basic structure provided by the Re C Test

  29. CAPACITY AND DECISION MAKING MENTAL CAPACITY ACT 2005 The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made. This means that different people will be involved in assessing someone’s capacity to make different decisions at different times. For most day-to-day decisions, this will be the person caring for them at the time a decision must be made. For example, a care worker might need to assess if the person can agree to being bathed. Then a district nurse might assess if the person can consent to have a dressing changed. .

  30. CAPACITY AND DECISION MAKING MENTAL CAPACITY ACT 2005 If a doctor or healthcare professional proposes treatment or an examination, they must assess the person’s capacity to consent. In settings such as a hospital, this can involve the multi-disciplinary team (a team of people from different professional backgrounds who share responsibility for a patient). But ultimately, it is up to the professional responsible for the person’s treatment to make sure that capacity has been assessed More complex decisions are likely to need more formal assessments (see paragraph 4.54 below). A professional opinion on the person’s capacity might be necessary. This could be, for example, from a psychiatrist, psychologist, a speech and language therapist, occupational therapist or social worker. But the final decision about a person’s capacity must be made by the person intending to make the decision or carry out the action on behalf of the person who lacks capacity – not the professional, who is there to advise.

  31. CAPACITY AND DECISION MAKING MENTAL CAPACITY ACT 2005 Once incapacity established proceed in best interests Find out the person’s views Consult others

  32. CAPACITY AND DECISION MAKING • Note. There is a distinction drawn between • Incapacity due to a disorder of mind or brain • Incompetence due to lacking sufficient maturity to come to a grave decision • The distinction is said to matter in decision-making but nobody tells us in what way.

  33. CAPACITY AND DECISION MAKING NOTE Advanced directives do not apply under the age of 18 Deprivation of Liberty Safeguards do not apply under the age of 18 In other words if Incapacitated and over 16 you can be detained under best interests often with the guidance of parents, without the safeguards that an adult would be entitled to In that situation the Mental Health Act may be more appropriate for its inherent safeguards.

  34. CONFIDENTIALITY AND DECISION MAKING Key documents Confidentiality and Security of information in Mental Health Practice ( APT 2002 8:291) GMC: Confidentiality and Protecting Information 2004 RCPsych : Good Psychiatric Practice 2000 Human Rights Act 1998 Data Protection Act 1998 Caldicott Principles ( DOH 1997)

  35. Definitions Privacyconcerned with limiting access to a person. Infringed if unauthorised access gained to an individual’s privacy Confidentiality concerned with keeping secret information given to a person by another person. Infringed if holder of info fails to protect info or deliberately discloses without the givers consent Security of Information is a broader concept than confidentiality, embracing the protection of privacy and confidentiality as well as integrity and accuracy. It refers to the process, technical and organisational, necessary to protect information collection, storage and transmission. CONFIDENTIALITY AND DECISION MAKING

  36. Key Principles Confidentiality is both an ethical and legal issue. A matter of medical ethics and professional conduct. Ethical principles in health care Autonomy : Beneficence : Non-maleficence: Justice : Confidentiality frequently becomes in issue at the interface of autonomy and justice. CONFIDENTIALITY AND DECISION MAKING

  37. ‘Doctors are bound by a professional duty to maintain the confidentiality of personal health information unless the patient gives valid consent, the patient is incapable of giving consent, the doctor believes disclosure to be in that person’s best interests.’( Law society and the BMA 1997) Patients have a right to expect that Doctors will keep confidential any personal information that they acquire during the course of professional duties unless permission to disclosure is given. They also need to know that this duty can be overridden. Disclosure may be deemed necessary without consent. CONFIDENTIALITY AND DECISION MAKING

  38. When it may be infringed without consent 1. In the patient's best interests : to an appropriate person/authority. Based on incapability, immaturity or mental incapacity 2. In the interests of others : in the public interest where failure to disclose may expose others to risk of death or serious harm CONFIDENTIALITY AND DECISION MAKING

  39. In considering infringement of confidentiality without consent Weigh up : Risks of non-disclosure Benefits of disclosure Risks of disclosure Working context ( situations of dual obligation) CONFIDENTIALITY AND DECISION MAKING

  40. Prior to disclosure usual procedure should include Explain to patient reason for sharing information (‘wherever practical to do so’) Encourage patient to inform the relevant authority If patient refuses, then disclose Document decision ( and interests of any competing parties if present) CONFIDENTIALITY AND DECISION MAKING

  41. Competing obligations Self harm in adolescents Adolescent autonomy key developmental task and yet may come directly into conflict with best interests Is it in their best interests to allow them to self-harm Is it respectful of parents rights to be parents not to tell them of their child's impulses/ thoughts/ risks/ to deprive them of their right to parent their child Patients threatening self harm do not usually fall under the mental health act Adolescents may demand confidence is kept Parents have right to make treatment decisions on their behalf Both have a right to respect for their family life CONFIDENTIALITY AND DECISION MAKING

  42. European Court Case Law ( E.P. 2001) ‘A fair balance must be struck between the interests of the child and those of the parent and…..in doing so particular importance must be attached to the best interests of the child, which depending on the nature and seriousness, may override those of the parent’ CONFIDENTIALITY AND DECISION MAKING

  43. A 16 year old boy is admitted to your 5 day unit. He is suicidal and depressed. He states that he wants nothing more to do with his family. He is sullen and uncommunicative. At weekends he stays with friends. Occasionally he goes to his family home, collects belongings, has some food but won’t speak to his mother. The parents are terribly worried and request some information, not wanting to intrude but just to know that he is OK How would you approach this issue ? CONFIDENTIALITY AND DECISION MAKING

  44. THE CHILDREN ACT 1989 Children Act 1989 Came into force in 1991 after intensive period of training in interagency cooperation. Was intended to provide a new framework for the care and protection of children, to establish a new range of court orders and to introduce three new concepts

  45. THE CHILDREN ACT 1989 Concept 1 The welfare principle The child’s welfare shall be the court’s paramount consideration

  46. THE CHILDREN ACT 1989 Concept 2 The no delay principle In any proceedings follow the general principle that any delay is likely to prejudice the welfare of the child

  47. THE CHILDREN ACT 1989 Concept 3 The ‘No order principle’ The court shall not make an order unless it considers that doing so would be better for the child than making no order at all

  48. THE CHILDREN ACT 1989 Introduced the concept of Parental Responsibility ‘All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and its property’

  49. THE CHILDREN ACT 1989 The welfare checklist The wishes or feelings of the child shall be considered in the light of his age and understanding His physical, emotional and educational needs The likely effect upon him of any change in his circumstances His age, sex and background Any harm that he has suffered or is at risk of suffering How capable key adults are in meeting his need The range of powers available to the court

  50. THE CHILDREN ACT 1989 Partnerships with families LA obliged to safeguard the welfare of the child primarily, but secondary obligation to promote the upbringing of such children by their families, and to take compulsory action only when better for the child than working under voluntary arrangements with the parents

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