Capacity, Competence & Consent: The legal framework for the treatment of children and young people: Is there now greater respect for the views of children and young people? Camilla Parker Partner, Just Equality 30 th January 2013 1 Just Equality: Linking Law to Life
Issues Considered Human rights standards: children and young people & mental health care Confidentiality & sharing information Consent to treatment Capacity and competence Life-saving treatment 2 Just Equality: Linking Law to Life
Autonomy: Only for Adults? A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all. Re MB Court of Appeal, 1997 But note: Statement only applies to adults (18 & over) Must be mentally competent MHA 1983 can override refusal 3 Just Equality: Linking Law to Life
Human Rights Treaties United Nations 9 core treaties Convention on the Rights of the Child, 1989 Convention on the Rights of Persons with Disabilities, 2006 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), 1950 (incorporated into UK law by Human Rights Act 1998) 4 Just Equality: Linking Law to Life
Key CRC Rights Best interests of the child - primary consideration in all actions concerning children (Article 3) Respect for the views of the child (Art 12). States respect the responsibilities, rights and duties of parents to make decisions in relation to their children - this must be in a manner consistent with the evolving capacities of the child (Article 5). 5 Just Equality: Linking Law to Life
CRC: Respect for the views of the child (Article 12) o 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. o Underlines children s status as individuals with human rights,views and feelings of their own o No lower age limit o MHA Code refers to CRC (36.3)
Article 7 CRPD: Children with disabilities 1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. 2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. 3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right. (Thus reflects Articles 3 and 12 of CRC) 7 Just Equality: Linking Law to Life
Evolving capacities of the child: Emphasises need to respect and promote development towards independent adulthood, Linked to Article 12 CRC: views of the child given due weight in accordance with age & maturity Change in guidance: although in past courts have held Gillick competent child s refusal could be overridden by person with parental responsibility:...there is no post Human Rights Act decision on this. The trend in recent cases is to reflect greater autonomy for the competent under 18s, so it may be unwise to rely on the consent of a person with parental responsibility. (MHA Code 36.43)
Article 8 ECHR: Right to Private & Family Life 9 (1) Everyone has the right to respect for his private and family life, his home and his correspondence [Covers: consent to treatment, privacy on wards, confidentiality ] (2) There shall be no interference by a public authority with the exercise of this right except as is in accordance with the 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 the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others Just Equality: Linking Law to Life
Confidentiality and sharing information (1) Children and young people have the same right to confidentiality as adults. Where they can make decisions about the use and disclosure of information they have provided in confidence this should be respected in same way as adults. For example, they may be receiving treatment or counselling they do not want their parents to know about BUT in some cases disclosure may be necessary... 10 Just Equality: Linking Law to Life
Confidentiality and sharing information (2) May need to disclose information to parents in certain circumstances e.g. where serious harm is suspected. Disclosure will depend on a number of factors: Age, maturity of the child/young person and their ability to take into account the future as well as the present Severity of the mental disorder & the risks posed Degree of care and protection required Degree of the parent s involvement in child/young person s care Closeness of relationship with the parents Current competence/capacity of the child/young person to make a decision about confidentiality (this may fluctuate) 11 Just Equality: Linking Law to Life
Authority for Informal Treatment: Overview CYP s Consent Has capacity (16/17) or competence (u16) Gives valid consent Parental Consent Child/young person unable to decide Within the zone of parental control MCA 2005 Lacks capacity Treatment in best interests Not amount to deprivation of liberty (DOL) 12 Just Equality: Linking Law to Life
Consent to Treatment: Key questions Has the child/young person been assessed as able to make the treatment decision? Consider: If under 16 if Gillick competent If 16/17 if lacks capacity under the MCA 2005, also note: may be overwhelmed If the child/young person is unable to decide: Who has parental responsibility (PR)? Is this a decision that the parent can authorise? Is the person with PR able and willing to consent? Do those with PR agree? Just Equality: Linking Law to Life 13
Consent: Summary The valid consent of a child or young person will be sufficient authority for their admission to hospital or treatment for mental disorder. To give valid consent a child or young person must: have the capacity/competence to consent to the particular decision being considered have sufficient information to make the decision; and not be subjected to any undue influence when making their decision.
Consent: MHA Code 23.31 Consent is the voluntary and continuing permission of a patient to be given an particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent. 15 Just Equality: Linking Law to Life
Consent: importance of information: (MHA Code 23.31-23.36) Those seeking consent must use reasonable care and skill in giving information prior to seeking consent & in meeting continuing obligation to provide the patient with sufficient information about proposed treatment & alternatives to it. Information given must relate to the particular patient, treatment and relevant clinical knowledge and practice. In every case, sufficient information must be given to the patient to ensure that they understand in broad terms the nature, likely effects and all significant possible adverse outcomes of that treatment, including the likelihood of its success and any alternatives to it. A record should be kept of the information provided Invite patient to ask questions 16 Just Equality: Linking Law to Life
Must be voluntary (DH Consent Guide) Although a child or young person may have the capacity to give consent, this is only valid if it is given voluntarily. This requirement must be considered carefully. Children and young people may be subject to undue influence by their parent(s), other carers or a sexual partner (current or potential), and it is important to establish that the decision is that of the individual him or herself. 17 Just Equality: Linking Law to Life
Gillick competence (MHA Code 36.38)...children who have sufficient understanding and intelligence to enable them to understand fully what is involved in a proposed intervention will also have the competence to consent to that intervention The understanding for different interventions will vary considerably Competence to consent should be assessed carefully in relation to each decision that needs to be made 18
Mental Capacity Act 2005:Overview Framework for decision making in relation to individuals aged 16 or over who lack capacity to consent Decision specific relates to particular decisions at particular times If a person lacks capacity (defined in the MCA 2005) to consent to care and treatment it can be provided if this is in the person s best interests Limits on this; e.g. restriction of liberty (deprivation of liberty safeguards), advance decisions Mental Capacity Act Code of Practice: guidance on key issues e.g. Helping people to make decisions, assessment of capacity, best interests
Parental Consent & u16s: DH Consent Guide Where a child under the age of 16 lacks capacity to consent (ie is not Gillick competent), consent can be given on their behalf by any one person with parental responsibility (if the matter is within the zone of parental control ) or by the court. As is the case where patients are giving consent for themselves, those giving consent on behalf of child patients must have the capacity to consent to the intervention in question, be acting voluntarily and be appropriately informed. The power to consent must be exercised according to the welfare principle : that the child s welfare or best interests must be paramount. Even where a child lacks capacity to consent on their own behalf, it is good practice to involve the child as much as possible in the decision-making process. 20 Just Equality: Linking Law to Life
What is the zone of parental control? Term describes types of decisions that people with PR can make about child/young person s care and treatment Various factors e.g. nature of the decision, likely motivation for making the decision. Seeks to mirror the evolving capacities of the child/dwindling right of control? E.g. factors considered: Nature and invasiveness of what is to be done Whether patient resisting Social standards is it acceptable for parents to make this decision beyond decisions parents routinely make? Age maturity and understanding of the child/young person Extent to which parent s interest may conflict with those of child/young person 21 Just Equality: Linking Law to Life
Determining the Zone of Paretnal Control What is the nature of the decision? Is this a decision that a parent would be expected to make, having regard to what is considered to be normal practice and any relevant human rights decisions? What is the likely motivation for making the decision? Are there any indicators that the parent might not act in the best interests of the child or young person? Is there any indication that the parent lacks capacity to make the decision?
Is the person with PR considering the best interests of the child? (DH Guide) Where there is doubt about whether a parent is acting in the interest of the child or young person, then the healthcare practitioner would be unwise to rely on the parent s consent For example if a child alleges abuse and the parent supports psychiatric treatment for the child. 23 Just Equality: Linking Law to Life
Under 18s and Refusal of Treatment Child/ young person able to decide: refusal could be overruled if it would in all probability lead to the death of the child/young person or to severe permanent injury. [post HRA 1998] Unwise to rely on parental consent to override refusal may be necessary to apply to the court to determine whether it is lawful to treat the child. Where the treatment involved is for mental disorder, consideration should be given to using mental health legislation (Department of Health, 2009, see also MHA Code 36.51) 24 Just Equality: Linking Law to Life
References & Guides Mental Health Act 1983 (as amended) Code of Practice Mental Health Act 1983, 2008 Reference Guide to the Mental Health Act 1983, 2008 Mental Capacity Act 2005 Code of Practice Mental Capacity Act 2005, 2007 Department of Health, Reference guide to consent for examination or treatment, second edition, 2009 2008 The Legal Aspects of the Care and Treatment of Children and Young People with Mental Disorder: A Guide for Professionals, NIMHE, 2009:...purpose is to explain the complex legal framework relevant to the provision of care and treatment to children and young people with severe mental disorders Flow charts: www.nmhdu.org.uk
Camilla Parker Partner, Just Equality camilla@justequality.co.uk www.justequality.co.uk 26 Just Equality: Linking Law to Life