Capacity & Rights Dr D Vijayasankar Consultant Emergency Medicine Peterborough City Hospital

Objectives Mental Health Act Consent Mental Capacity Act Children rights Mental Health Act Consent Mental Capacity Act

Human Rights

Human Rights Act Right to life Freedom from Torture and inhuman or degrading treatment Right to Liberty and Security Right to Fair trial No punishment without law Respect for private and family life Protection from discrimination Right to peaceful enjoyment Right to education Right to participate in free elections Right to marry and start a family Freedom of expression The Human Rights Act 1998

Children Rights Why does Children need Rights? Is it different from Human rights act? What statutory law is there for Children in UK?

Participate & to have a say Family life Protection Participate & to have a say Family life Have decisions - best interests Be involved in making those decisions. Non-discrimination 6

Children Act 1989 Treat as equal Assess risk and Emotional needs Respect decisions by parents or relatives or the child Respect and awareness of cultural differences Treat as equal, assess risk and their emotional needs respect their decisions as well as their Parents and Relatives Respect their culture 7

Children: The Five Outcomes Stay Safe. Healthy. Achieve Economic Wellbeing. Positive Contribution. Enjoy & Achieve. Came from Green Paper, Every Child Matters – which followed the tragic death of Victoria Climbie in 2000. The inquiry into her death highlighted poor co-ordination, poor management and lack of effective training. Green paper, Every Child Matters – V Climbie 2000

Children Act 2004 Children commissioner LA duty 2ndary legislation & guidance re databases LA: safeguarding children boards Integrated inspection framework Fostering arrangements

Legislations Children Act 1989 & 2004 European convention on Children rights 1989 Human Rights Act 1998 Adoption and Children Act 2002 Education Act 2002 Sexual Offences Act 2003 Mental Capacity Act 2005 Adoption and Children Act 2006 Safeguarding Vulnerable Groups Act 2006 C.A 1984 – Introduced the concept of SH as threshold for intervention. Children Act 2004 – provides legislation to improve the life chances of all children *Overall purpose to encourage integrated planning, commissioning and delivery of CS *Criteria of Children’s Trusts – bring together all services. *

Guidance Every Child Matters. Change for Children 2003 Working together to safeguard children 2006 Local Safeguarding child manual/guidance The right to choose. Multi agency statutory guidance for dealing with forced marriage 2008, both children and adults

Discuss your actions? (Not wound management) Case 1 14 year old girl has presented to your department with burns to both hands whilst working in a chip shop. Discuss your actions? (Not wound management) What is the earliest legal age for children to work? 13 years old (Although not all local authorities will allow this), However there are some exceptions like modelling. Any child under sixteen must apply for the licence from the local authority By law children under 16 can only do light work Not allowed to work – Delivering milk, selling alcohol, cigarettes or medicines, working in a kitchen or behind the counter of chip shop, working with dangerous machinery or chemicals or doing any other kind of work that can be harmful to their health or education. www.worksmart.org.uk

Case 1 What is the earliest legal age for children to work? What is the earliest legal age for children to work? 13 years old (Although not all local authorities will allow this), However there are some exceptions like modelling. Any child under sixteen must apply for the licence from the local authority By law children under 16 can only do light work Not allowed to work – Delivering milk, selling alcohol, cigarettes or medicines, working in a kitchen or behind the counter of chip shop, working with dangerous machinery or chemicals or doing any other kind of work that can be harmful to their health or education. www.worksmart.org.uk

Case 2 15 year old girl has presented to ED on her own requesting post coital contraception? Discuss your management plan? Should also include competency? What constitutes rape?

The basis of Gillick case Gillick v West Norfolk & Wisbeck AHA & the DHSS [1985]

Gillick "...whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.“ Cannot refuse treatment

When a GC child refuses treatment Can be over ruled by a person with PR but…. What if conflicting views of parents with PR? When might decisions be over-ruled? Issue of confidentiality? What if refusal by child and persons with PR ? PR – Parental responsibility

Children under 16: Gillick competence Involves treatment, research & tissue donation Children with learning disabilities? If GC do parents have to sign the consent form? What issues need to be considered re voluntary nature of consent in childhood? So what do we mean by Fraser competent then?

Fraser Guidelines "...a doctor could proceed to give advice and treatment provided he is satisfied in the following criteria: 1) that the girl (although under the age of 16 years of age) will understand his advice; 2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice; 3) that she is very likely to continue having sexual intercourse with or without contraceptive treatment; 4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer; 5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent." Mainly used at GP land to prescribe oral contraceptive pills

Young people aged 16-17yrs Family Law Reform Act (1969:sec8) entitled to give own consent but there are some circumstances where refusal to give consent may be over ridden by someone with parental responsibility or the courts However....... Does not apply to blood transfusions or non therapeutic research. But may be able to give consent if deemed Gillick competent.

Sexual Offences Act 2004 Aim of Act Key Points of the Act To protect children and families from Sexual Abuse. Key Points of the Act Tougher sentences for adults. Closer monitoring of Sex Offenders. New and updated offences. Clarification regarding sexual activity in the under 16’s.

Case 2 Under thirteen – There should be a presumption, within the constraints of professional codes of conduct, that the cases will be reported to Children Services. If a young person under the age of 13 years discloses that they have engaged in or intend to engage in a penetrative sexual act or other intimate sexual activity there should be a presumption (within the constraints of Professional Codes of Conduct), that the case will be reported to Children’s Services P&A Team

Consent and the Under 16’s The legal age for consent to sex is still 16. (Whether straight, gay or bisexual) Specific laws protect children under 13, who cannot legally give their consent to any form of sexual activity. There is no defence of mistaken belief about the age of the child as there is in cases involving 13 -15 year olds.

Home Office Guidance ‘The Law is not intended to prosecute mutually agreed teenage sexual activity . . .unless it involves abuse or exploitation’ ‘Young people still have the right to confidential advice on contraception, condoms, pregnancy and abortion, even if they are under 16’ The age of consent to any form of sexual activity is 16 for both men and women. The Sexual Offences Act 2003 introduced a new series of laws to protect children under 16 from sexual abuse. However, the law is not intended to prosecute mutually agreed teenage sexual activity between two young people of a similar age, unless it involves abuse or exploitation. Specific laws protect children under 13, who cannot legally give their consent to any form of sexual activity. There is a maximum sentence of life imprisonment for rape, assault by penetration, and causing or inciting a child to engage in sexual activity. There is no defence of mistaken belief about age of the child, as there is in cases involving 13-15 year olds.

Case 3 5 years old child with laceration to forehead has been brought in by his grand mother to ED. You have decided to suture the laceration under Ketamine sedation. Forehead Laceration – suspicious? Discuss consent? Discuss Parental Responsibility (PR)?

Common Sites For Accidental Injury FOREHEAD NOSE BONY SPINE CHIN FOREARM ELBOWS HIP Use this diagram to demonstrate some of the common sites for accidental injury. Not all bruising or marking is cause for concern. However when explanations do not correlate or the bruising is in an unusual place, this should be recorded and discussed with the Senior Designated Person. KNEES SHINS 26

Concerning Injuries SKULL - fracture or bleeding under skull (from shaking) EYES - bruising, black (particularly both eyes) EARS - Pinch or slap marks, bruising CHEEK/SIDE OF FACE - bruising, finger marks NECK -bruising, grasp marks UPPER & INNER ARM - bruising, grasp marks MOUTH - torn frenulum CHEST - bruising, grasp marks SHOULDERS - bruising, grasp marks Use this diagram to illustrate some of the areas that are suggestive of physical abuse. Reinforce the need to share any concerns with the Designated Senior Person. Linear bruising. Outline of belt/buckles. Scalds/burns BACK } BUTTOCKS } THIGHS } GENITALS - bruising KNEES - grasp marks 27

Parental responsibility What do we mean by parental responsibility? Who has it automatically? Who can apply for it? Who can be awarded it to by the courts? How long does it last? What if mother is under 16 years? Parental responsibility (Children Act 1989) • This refers to all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property • Where more than one person has parental responsibility, each may act alone and without the other in meeting that responsibility • A person who has care of the child (but not parental responsibility) may do what is reasonable to safeguard or promote the child’s welfare. Who has parental responsibility? • Not all parents have parental responsibility • Both parents will have parental responsibility if they were married at the time of the child’s conception, or at birth, or at some time after the child’s birth • If the parents have never been married, only the mother automatically has parental responsibility, but the father may acquire that status by order or agreement • Parents who do not have parental responsibility none the less play an essential role in determining best interests and may have a right, under the Human Rights Act 1998, to participate in the decision making process • People other than parents may acquire parental responsibility by being appointed as a guardian or on the order of a court. The inherent jurisdiction of the High Court • This is derived from the Crown’s obligation to protect its subjects • One aspect is parens patriae, the parental jurisdiction of the Crown to which all British children are potentially subject • Another aspect is wardship • Where legal rights are uncertain, the High Court’s decision regarding any proposed treatment relieves all parties of any criminal or civic liability. There may, however, be constitutional concerns if the Court is asked to use its inherent jurisdiction in opposition to the will of Parliament, because the inherent jurisdiction is derived from the sovereign (Bedingfield, 1998). BMA Advice Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. For a child whose birth was registered from 15th April 2002 in Northern Ireland, 1st December 2003 in England and Wales and 4th May 2006 in Scotland, both of the child's parents have parental responsibility if they are registered on the child's birth certificate. Throughout the United Kingdom, a mother automatically acquires parental responsibility at birth. However, the acquisition of parental responsibility by a father varies according to where and when the child's birth was registered: A father acquires parental responsibility if he is married to the mother at the time of the child's birth or subsequently. An unmarried father will acquire parental responsibility if he is recorded on the child's birth certificate (at registration or upon re-registration) from 1st December 2003 in England or Wales and from 15th April 2002 in Northern Ireland. An unmarried father, whose child's birth was registered before the dates mentioned above, or afterwards if he is not recorded on the child's birth certificate, does not have parental responsibility even if he has lived with the mother for a long time. However, the father can acquire parental responsibility by way of a court registered parental responsibility agreement with the mother or by obtaining a parental responsibility order or a residence order from the courts. Married step-parents and registered civil partners can acquire parental responsibility in the same ways. Parental responsibility awarded by a court can only be removed by a court. Parents do not lose parental responsibility if they divorce – neither can a separated or divorced parent BMA Ethics – Oct 2008

Unmarried fathers If married automatic PR either at time of birth or afterwards (Legitimacy Act 76) PR Adoption and Children Act 2002 in force Dec 2003. If registered at birth Can apply for it retrospectively

When child or young person has not the capacity to consent Welfare & best interests paramount Always good practice to involve child even if not able to consent Courts can over rule PR When should court guidance should be sought When might consent from more than one person be needed?

Step parents Not biological parents but parent created by marriage Have legal obligation to the step children, particularly financially Have rights under Children Act: can apply for adoption, can apply for s.8 orders - need court permission (re S8) Step parents have no automatic PR but can apply for it

Foster parents Two types: private fostering, LA care Birth parent(s)parental responsibilities Foster carers have delegated form of PR in terms of obligation of care in placement agreement May have special guardianship order if long term foster placement Care orders: LA joint with birth parent(s)

Going to court regarding consent Courts have power to give consent on behalf of child / young person under 18yrs Safeguard but distressing option Two mechanisms for involvement – (jurisdictions): Children Act Inherent jurisdiction of High Court with respect to children

Mental Capacity Act Children - Aged below 16 – Does not apply, however two exceptions Young people – 16-17 years Children act – children up to age of 18 Court – Childs property or finances and offences of ill treatment or wilful neglect Young people – cannot make LPA or advanced decision or statutory will by the court until 18

Mental Health Act 1983 Act remains the same for children Divided into sections and subsections Commonly used sections are 2,3,4 and 5 ‘ I Ate Already’ – Assessment, Treatment, Emergency and already in hospital.

Sections Section 1 – sets out why the act is needed Section 2 – Assessment – 28 days Section 3 – Treatment – max six months Section 4 – Emergency Treatment – max 72 hrs Section 5 – Already in hospital, split into two Section 5(2) – Doctors holding power Section 5 (4) – Nurses , max six hours Section 37 – court order – six months

Summary Suspicious and being neutral Contemporaneous notes Do not try to manage complex cases all by yourself and do share your pain with your seniors Involve your MDU / MPS Information sharing with other agencies

Further reading Aynsley-Green A (2008) 11 Million Children And Young People In England Have The Right to A Voice. http://www.11million.org.uk/ British Medical Association (2005) The Mental Capacity Act 2005 – guidance for health professionals. London. BMA 2005 Children Act, 1989. http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_1.htm. Children Act, 2004. http://www.opsi.gov.uk/acts/acts2004/20040031.htm. Dept of Education and Skills (2004) Enabling young people to access contraceptive and sexual health information and advice: legal and policy framework for social workers, residential social workers, foster carers and other social care practitioners. London. DofES Department for Education and Skills (2006) Working Together to Safeguard Children: a guide to inter-agency working to safeguard and promote the welfare of children. London: Department for Education and Skills. General Medical Council (2007) 0-18 years: guidance for all doctors. London. GMC Hendrick J (2010) Law and ethics in children’s nursing. Oxford. Wiley-Blackwell. (available online or as textbook) Human Rights Act 1998. www.hmso.gov.uk/acts/acts1998/19980042.htm.. Mental Capacity Act (2005). www.opsi.gov.uk/acts/acts2005/ukpga_20050009_en_1. Munro E (2011) The Munro review of child protection: final report: a child centred system. London. Stationery Office. Available online via the library. Protection of Children Act 1999. www.opsi.gov.uk/ACTS/acts1999/ukpga. Sexual Offences Act (2003) www.opsi.gov.uk/acts/acts2003/ukpga_20030042_en_ UNICEF (2009) A summary of the rights under the Convention on the Rights of the Child (1989) http://www.unicef.org/crc/files/Rights_overview.pdf.   Websites: www.doh.gov.uk http://www.education.gov.uk/ http://www.everychildmatters.gov.uk/ http://www.childrenscommissioner.gov.uk/ www.savethechildren.org.uk www.unicef.org