The Legal Context of Young People's Mental Health

THE LEGAL CONTEXT

Legal framework

The legal framework for child and adolescent mental health encompasses a wide spectrum of social policy including juvenile justice, mental health, education, and children and family legislation. An important point is that the term ‘mental illness’ is not defined in Law relating to children and young people. The variety of legal frameworks affecting them provide the context for work undertaken by a number of health and social care staff concerned about children and young people whose behaviour is described as disturbed or disturbing. The relevant legal and ethical issues for social workers are linked to practice principles and values best embedded in a psycho-social approach. Of particular interest to social workers in the context of empowering practice are the issues of consent and confidentiality. The Children’s Legal Centre (2008) draw attention to a number of issues regarding the rights of children and young people who might have contact with agencies on the basis of their mental health problems:

· Lack of knowledge and implementation of legal rights for children and young people to control their own medical treatment, and a general lack of rights to self-determination.

· Discrimination against children and young people on grounds of disability, race, culture, colour, language, religion, gender, and sexuality which can lead to categorisation as mentally ill and subsequent intervention and detention.

· Unnecessary and in some cases unlawful restriction of liberty and inadequate safeguards in mental health and other legislation for children and young people.

· Inadequate assessment and corresponding lack of care, treatment and education in the criminal justice system.

· Use of drugs for containment rather than treatment purposes in the community, schools, and in other institutions, combined with a lack of knowledge of consent procedures.

· Placement of children on adult wards in psychiatric hospitals.

· Lack of clear ethical guidelines for extreme situations such as force-feedings in cases of anorexia, care of suicide risk young people, and care of HIV positive or AIDS patients.

The organisational complexity

Children with mental health problems may move between four overlapping systems: criminal justice, social services, education and the health service. Children are not always helped by the appropriate service since this often depends on the resources available in the area at the time. It also depends on how different professional staff may perceive the behaviour of a particular child, and the vocabulary used by the service in which they work. A youth offending team member may talk about a young person engaged in anti-social activity, a teacher about poor concentration and aggressive behaviour, and a social worker may perceive a needy, anxious, abused child. All are describing the same child.

The Crime and Disorder Act 1998 and the Special Educational Needs and Disability Act 2001 provide the legislative framework for youth justice and children with special educational needs. In both cases children and young people with mental health problems may find they are being inappropriately dealt with under these Acts. The Mental Health Act 1983, the Children Act 1989 and the Human Rights Act 1998, are currently the three significant pieces of legislation providing the context for social work practice in child and adolescent mental health.

Mental Health Act 1983

In 2003 more than 270 children were detained under the Mental Health Act and placed in unsuitable adult psychiatric establishments according to the Mental Health Act Commission (2004). The MHAC have recently expressed concern about the safety of children in adult psychiatric wards. The Mental Health Act 1983 is a piece of legislation designed mainly for adults with mental health problems and amongst other things, sets the framework for the assessment and potential compulsory admission of patients to hospital. The majority of children in psychiatric hospitals or units are informal patients. They do not have the same access to safeguards available to adult patients detained under the Mental Health Act 1983.

Children under 16 are frequently admitted by their parents even though they may not have wanted to be admitted. This is de facto detention. The number of children admitted to NHS psychiatric units has risen in recent years. In 1995 4,891 children and young people under 19 were admitted in England. By 2000 the number had risen to 5,788 an increase of 18 per cent (Walker 2003). This is a worrying trend, which is also reflected in the adult statistics for compulsory admissions. Health and Social Care policy is meant to be shifting resources away from institutional based provision to community care, but in the context of troubled young people the reverse appears to be the case.

Parts 2 and 3 of the Mental Health Act 1983 provide for compulsory admission and continued detention where a child or young person is deemed to have, or suspected of having, a mental disorder. The mental disorder must be specified as mental illness, psychopathic disorder, learning disability, or severe mental impairment. Learning disability is not stated as such in the Act, and as with psychopathic disorder, it must be associated with abnormally aggressive or seriously irresponsible conduct. Full assessment and treatment orders under sections 2 and 3 require an application to be made by the nearest relative or a social worker approved under the Mental Health Act, together with medical recommendation by two doctors. Social workers have a role whether as ASW’s or not in safeguarding the rights of children and young people at these rare and acute episodes in their lives. The sections of the Mental Health Act 1983 most likely to be used with children and young people are:

Section 2: for assessment for possible admission for up to 28 days

Section 4: for an emergency assessment for up to 72 hours admission

Section 5 (2): for emergency detention by one doctor for up to 72 hours

Section 5 (4): for emergency 6 hour detention when no doctor or social worker available

Section 3: for inpatient treatment for a treatable disorder for up to 6 months

Consent

Defining the capacity of a child to make her or his own decisions and consent to intervention is not easy especially in the area of child mental health. The concept of ‘Gillick competent’ arose following a landmark ruling in 1985 in the House of Lords (3 All E.R. 402, 1985). That ruling held that competent children under 16 years of age can consent to and refuse advice and treatment from a doctor. Since then further court cases have modified the Gillick principle so that if either the child or any person with parental responsibility gives consent to treatment, doctors can proceed, even if one or more of these people, including the child, disagree. The preferred term now is‘Fraser competent’ after the presiding Judge in those later cases.

The concept of competent refers to a child having the capacity to understand the nature, terms and consequences of proposed treatment, or the consequences of refusing such treatment, free from pressure to comply (Walker 2003). In practice, children are considered to be lacking in capacity to consent although this could be as a result of underestimating children’s intelligence, or more likely, reflect an inability to communicate effectively with them. Courts have consistently held that children do not have sufficient understanding of death- hence the force feeding of anorexics and blood transfusions of Jehova’s Witnesses.

Court of Appeal decisions have since overturned the principle that Fraser competent children can refuse treatment. Such cases involved extreme and life-threatening situations involving Anorexia, blood transfusion, and severely disturbed behaviour. Importantly, the courts have indicated that any person with parental responsibility can in certain circumstances override the refusal of a Fraser competent child. This means that children under a care order or accommodated by the local authority even if considered not to have the capacity to consent, still retain the right to be consulted about proposed treatment. If a child is accommodated the social worker should always obtain the parents consent since they retain full parental responsibility (Brammer 2003). If the child is under a care order the parents share parental responsibility with the local authority. Good practice requires the social worker in these situations to negotiate with parents about who should give consent and ensure that all views are recorded in the care plan.

Confidentiality

Children and young people require the help and advice of a wide variety of sources at times of stress and unhappiness in their lives. There are voluntary, statutory and private agencies as well as relatives or friends who they find easier to approach than parents. They may want to talk in confidence about worrying feelings or behaviour. The legal position in these circumstances is confused, with agencies and professional groups relying on voluntary codes of practice guidance. A difficult dilemma frequently arises when children are considering whether a helping service is acceptable while the staff are required to disclose information to others in certain situations for example where child protection concerns are aroused.

The agency policies should be accessible to children and clearly state the limits to confidentiality. But in doing so many practitioners know they could be discouraging the sharing of important feelings and information. Social workers know only too well the importance of establishing trust and confidence in vulnerable young people and constantly have to tread the line between facilitating sensitive communication and selecting what needs to be passed on to parents, colleagues or to third parties. Ideally, where disclosure needs to be made against a young person’s wishes it is good practice to inform the young person in advance and give her or him the chance to disclose the information first.

The Data Protection Act 1984 and The Access to Personal Files Act 1987 give individuals the right to see information about them, with some limitations. Children ‘of sufficient understanding’ have the right of access except in certain circumstances. These are particularly relevant to social work and child mental health:

· Where disclosure would be likely to cause serious harm to the child’s physical or mental health

· Where the information would disclose the identity of another person

· Where the information is contained within a court report

· Where the information is restricted or prohibited from disclosure in adoption cases

· Where the information is a statement of special education needs made under the Education Act 1981

Updates to the Mental Health Act 1983 came into force in 2008 with the Mental Health Act 2007. These included- a single definition of Mental Disorder; changing the criteria for detention by abolishing the Treatability Test and introducing a new Appropriate Treatment Test. Importantly, changes also included a directive to ensure that age appropriate services are available for any young person admitted to hospitals who are aged under 18. Broadening the professional groups that can take particular roles has concerned many social workers who fear their vital independent role separate from the Health Service , has been weakened. Young people now have the ability to apply to court to change their nearest relative, and ensuring the right to an advocacy service when under compulsion.

New safeguards were also introduced for patients regarding Electro-Convulsive Therapy, and a new provision to allow Supervised Community Treatments. This allows a patient detained on a treatment order to receive their treatment in the community rather than as an inpatient. As a result of further changes, Earlier Referral to a Mental Health Tribunal should occur. This introduces the inclusion of any period spent on Section 2 to be included in the first 6 month referral by hospital managers to the Mental Health Tribunal and retaining the right of the Secretary of State to reduce this referral period in the future.

Importantly, the UK at long last signed up in full to the United Nations Convention on the Rights of the Child. The United Kingdom government had maintained an opt out since 1991 which meant they did not fully accept responsibilities to asylum seeking children to appropriate protection and assistance. Now asylum seeking children have the same protection and access to services as other children although such children are still subject to inhuman detention and financial constraints which adversely affect their mental health.

Children Act 1989

A child who is suffering with mental health problems may behave in ways that stretch their parents/carers capacity to cope which can result in the potential for significant harm. On the other hand a child who is being abused or neglected may come to the attention of professionals concerned initially about her/his mental health. The interactive nature of mental health and child abuse presents a considerable challenge for social workers tasked with conducting assessment work in child and family contexts. In terms of the Children Act social workers operate within deceptively clear guidelines. In practice however the provisions within the Act and subsequent practice guidelines have sought to bring simplicity to what are inevitably highly complex situations. The duties under the terms of the Children Act are straightforward and underpinned by the following principles:

· The welfare of the child is paramount

· Children should be brought up and cared for within their own families wherever possible

· Children should be safe and protected by effective interventions if at risk

· Courts should avoid delay and only make an order if this is better than not making an order

· Children should be kept informed about what happens to them and involved in decisions made about them

· Parents continue to have parental responsibility for their children even when their children are no longer living with them

The shift in emphasis heralded by the Children Act from investigative child protection to needs-led assessment for family support services is particularly significant for social workers engaged in work involving children’s mental health. In harmony with a broad range of fiscal and social policy measures and neighbourhood renewal projects, it means family support is enjoying something of a renaissance and enabling social workers to practice psycho-social interventions. There is a specific legal requirement under the Act that different authorities and agencies work together to provide family support services with better liaison and a corporate approach (Brammer 2003).

Together with the four-tier integrated child and adolescent mental health services structure, the framework is there to achieve better co-ordination and effectiveness of services to help any family with a child who has a mental health problem. This is made clear under the terms of Section 17 of the Children Act that lays a duty on local authorities to provide services for children in need. The definition of ‘in need’ has three elements:

· The child is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for the child of services by a local authority or;

· The child’s health or development is likely to be significantly impaired, or further impaired, without provision for the child of such services or;

· The child is disabled.

The Act further defines disability to include children suffering from mental disorder of any kind. In relation to the first two parts of the definition, health or development is defined to cover physical, intellectual, emotional, social or behavioural development and physical or mental health. These concepts are open to interpretation of what is meant by a ‘reasonable standard of health and development’, as well as the predictive implications for children having the‘opportunity’ of achieving or maintaining it. However it is reasonable to include the following groups of children within this part of the definition of in need and to argue the case for preventive support where there is a risk of children developing mental health problems (Ryan 1999):

Children living in poverty

Homeless children

Children suffering the effects of racism

Young carers

Delinquent children

Children separated from parent/s

Some children from these groups may be truanting from school, getting involved in criminal activities, or have behaviour problems at school and/or home. Agency responses will tend to address the presenting problem and try an intervention to apparently address it. Assessment of the needs of individual children and families is often cursory, deficit-oriented, and static. The Common Assessment Framework (2005) offers the opportunity for social workers- in collaboration with other professionals, to conduct more positive, comprehensive assessments that permit the mental health needs of children and adolescents to be illuminated.

Section 47 of The Children Act gives the local authority a duty to investigate where they suspect a child is suffering or is likely to suffer significant harm. Guidance suggests the purpose of such an investigation is to establish facts, decide if there are grounds for concern, identify risk, and decide protective action. The problem with child and adolescent mental health problems is that this guidance assumes certainty within a time-limited assessment period. The nature of emotional and behavioural difficulties is their often hidden quality combined with the child’s own reluctance to acknowledge them.

The interpretation of a child or young person’s emotional or behavioural state is usually decided by a child and adolescent psychiatrist who may be brought into a Section 43 child assessment order that has been sought following parental lack of co-operation. The social worker in situations like this, and in full care proceedings, has a crucial role in balancing the need to protect the child with the future consequences on them and their family of oppressive investigations and interventions.

In cases where the child’s competence to consent to treatment, or capacity to express their wishes and feelings is impaired, it is likely that the Children Act 1989 should be used in preference to the Mental Health Act 1983. The Children Act does not carry the same stigma and consequences of the Mental Health Act, and it provides for a children’s guardian to consider all the factors and act as an independent advocate in legal proceedings. The Children Act aimed to consolidate a number of child care reforms and provide a response to the evidence of failure in children’s services that had been mounting in the 1980’s (DHSS 1985).

Professional social work practice was, prior to the Children Act 1989, perceived as intrusive, legalistic and biased towards child protection investigation. The new Act tried to redress the balance towards identifying needs and providing support to parents to prevent harm or neglect of children and young people. Contemporary debate about the Children Act is still concerned with how to translate the widely endorsed principles of the legislation into practical help for child welfare service users and providers (O’Hagan 1996). In the context of child and adolescent mental health this requires social workers to optimise professional knowledge, skills, and values in a very complex area of practice.

One of the distinctive roles for social workers in this context is that of advocate. This may seem contradictory in cases where the local authority is acting in the child’s best interests, but in terms of establishing trust, respect, and relationship building, supporting a complaint has benefit for staff involved in CAMHS. Section 26 of the Children Act provides for a complaints procedure through which children and young people can appeal against decisions reached by social workers. There are informal and formal stages to the procedure with an expectation that an independent person is included at the formal stages. When these procedures have been exhausted a Judicial review can be applied for within 3 months of the decision being appealed against. The three grounds for succeeding with Judicial Review are:

· Ultra vires- the social services department did not have the power to make the decision

· Unfair-the decision was reached in a procedurally unfair manner, or by abuse of power

· Unreasonable- all relevant matters were not considered, the law was not properly applied, or there was insufficient consultation

Human Rights Act 1998

The Human Rights Act (UN 1998) came into force in 2000 and incorporates into English law most of the provisions of the European Convention on Human Rights. The Act applies to all authorities undertaking functions of a public nature, including all care providers in the public sector. The Human Rights Act supports the protection and improvement of the health and welfare of children and young people throughout the United Kingdom. Article 3 concerns freedom from torture and inhuman or degrading treatment. Children and young people who have been subjected to restraint, seclusion, or detention as a result of alarming behaviour could use this part of the Act to raise complaints.

Article 5concerns the right to liberty, and together with Article 6 concerning the right to a fair hearing, are important to children and young people detained under a section of the Mental Health Act, the Children Act, or within the youth justice system. Social workers involved in such work must ensure that detention is based on sound opinion, in accordance with clearly laid out legal procedure accessible to the individual, and only lasts for as long as the mental health problem persists. In the context of youth justice work, particular attention needs to be paid to the quality and tone of pre-sentence reports which can be stigmatising. The formulaic structure of pre-sentence reports might not enable an assessing social worker working under deadline pressure, to provide an accurate picture of a young person.

Article 8guarantees the right to privacy and family life. Refugees and asylum seeking families can become entangled in complex legal procedures relating to citizenship and entitlement. This provision can be invoked when UK authorities are considering whether a person should be deported or remain in this country. Compassionate grounds can be used for children affected by the proposed deportation of a parent or in cases where a parent is not admitted. Social workers attuned to the attachment relationships of often small children can use this knowledge to support Article 8 proceedings. In such circumstances the maintenance of the family unit is paramount.

Social workers involved in care proceedings or adoption work will have to consider very carefully whether such plans are in the best interests of the child but also are consistent with the child’s rights under the Convention. For example, the Convention emphasises that care orders should be a temporary measure and that children should be reunited with their family as soon as possible, where appropriate. In the case of a parent with a mental health problem detained in a psychiatric hospital, the Convention could be employed by their children to facilitate regular visits if these have been denied.

Article 10concerns basic rights to freedom of expression and in the context of children’s mental health, is a crucial safeguard to ensuring that practitioners work actively to enable children and young people to express their opinions about service provision. Social workers have an opportunity within this specific provision to articulate and put into practice their value principles of partnership and children’s rights.

Article 14states that all children have an equal claim to the rights set out in the Convention ‘ irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.’ This provision could be used to argue for equality of service provision and non-prejudicial diagnosis or treatment. Social workers need to ensure they are employing anti-racist and non-discriminatory practice as well as facilitating children and young people to:

· Access information about their rights

· Contact mental health services

· Access advocates and children’s rights organisations

· Create children’s service user groups

All staff in a variety of work contexts in statutory or voluntary agencies, organised generically or in specialist teams, wherever they are likely to encounter children and young people as clients or carers, are potentially going to need to develop awareness and skills in child and adolescent mental health practice.

In terms of the policy and organisational context, advice from the Children’s Legal Centre (2008) is that CAMHS workers need to follow these principles when planning to intervene in the lives of children and young people on the grounds of disturbed or disturbing behaviour:

· Informing the child fully, consulting the child and taking her/his views and wishes into consideration

· Acceptingthat in the absence of any specific statutory limitation, children gain the right to make decisions for themselves when they have ‘sufficient understanding and intelligence’

· Respecting in particular the child’s independent right to consent or withhold consent to treatment as appropriate; and where a child is incapable of giving an informed consent ensuring that the parents’ consent is sought, save in emergencies

· Ensuringthat any intervention is the least restrictive alternative, and leads to the least possible segregation from the child’s family, friends, community, and ordinary school

· Childrenwithout the support of family or friends in treatment decisions should have access to independent visitors, advice, and advocacy organisations. In the event of a parent wishing to override the child’s refusal to be treated, a legal challenge may be justified if there is evidence that the parent is not acting in the best interests of the child

A great deal of work will however involve delivering or commissioning family support work linked to formal or informal assessment procedures designed to find out the best way of intervening to prevent children being removed from the care of their parents or deprived of their liberty. The signs and symptoms of mental health problems may not manifest clearly, or even if they do, alternative and sometimes punitive explanations for a young person’s behaviour may obscure an underlying psychological problem.

It is important to locate the CAMHS role in this area of practice in its wider policy and professional context. A useful way of doing this is to consider in general terms what the role is in relation to other professionals working with children and families. What is it that makes CAMHS work unique and is not or rarely done by other agency staff? The first key difference is the statutory power enshrined in local authority practice contexts which always distinguishes the social work contribution to multi-agency working. The inherent capacity for compulsory sanction inevitably influences the nature of social work and affects the relationship with the service user. The second key difference is probably the training in wider social science and social policy perspectives which permits an understanding of oppressive and discriminatory processes in society. The third key difference is the explicit acknowledgement that community-focused interventions are a valuable means of empowering individuals and groups.

Together, these three elements can inform practice with children and adolescents who have, or are at risk of, developing mental health problems. A social model of mental health that encompasses these elements can help social workers challenge medical, institutional and punitive responses to distressed children. The social policy imperative for closer interprofessional working and reducing the barriers between staff in different agencies offers an opportunity to restate the core elements of effective practice.