Legal Framework in CAMHS Peninsula Deanery MRCPsych CAMHS Module Dr Femi Akerele October 2012

Competency: Specialist Curriculum 2010  The relevant guidelines, case law and legislation.  Who can give consent?  What makes consent valid?  What to do when there is no one who can give a valid consent.  The evidence base for treatments recommended.

Outline & Learning Objectives  Overview of Law in general  General Principles of Consent  Parental Responsibility  Consent in Children  Capacity  Metal Health Act  Children Act  Questions / Quiz

Making of Law  Statute Law – Parliament. e.g Children Act  Common Law – judge made  Guidelines, Directives – NICE, GMC,NMC  Local policies & Protocols

Common Law  Also referred to as Case law  Precedent – binds future decisions  House of Lords (Supreme Court)  Court of Appeal  High Court  Crown Court  Magistrate & County Court

Consent – The General Picture  “Consent is the voluntary and continuing permission of a patient to be given a particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment. Permission given under any unfair or undue pressure is not consent.” MHA 1983 Code of Practice (revised 2008)

Consent – the law  “Every human being of adult years and sound mind has a right to determine what shall be done to his own body: and a surgeon who performs an operation without his patient’s consent commits an assault..” Per Cardozo J in Schloendorff v Society of New York (1914) 211 NY

Consent - Purpose 1. Clinical.. patient cooperation required..fosters therapeutic relationship 2. Legal - Criminal charge of assault / battery - Civil claim for trespass to the person / negligence

Types of Consent Express - oral, written, part-written  The use of consent forms are encouraged particularly for surgery and invasive procedures. Implied – from the patient’s action  Action can be taken in absence of unexpressed feelings(O’Brien v Cunard SS)  Silence without intimation is not consent

True Consent The patient must:  Have capacity to consent to the particular decision / intervention  Have been given a certain amount of relevant information on which to base the consent  Have understood the information imparted  Have given the consent voluntarily

Informed Consent  An American/ Canadian doctrine  Not enshrined in English law  Focuses on the volume of information to be imparted on the patient based & what the patient would want to know rather than on what the health professional thinks the patient should know.  “Broad terms v Material risks”

Consent in Children  “There is the fundamental principle, long established, that every person’s body is inviolate” Re F (Mental Patient: Sterilisation) [1990] 2 AC No one can make decisions for an adult For children?  UNCRC  Children Act  ECHR

Children – Sources of Consent 1. The Capable Child 2. Someone with Parental Responsibility 3. The Courts

The Courts  Court has autonomous powers to order that treatment be given to a child under 18 years.  Always based on Best Interest of Child Powers under  Inherent Jurisdiction / wardship  Court Orders e.g specific issue order

Parental Responsibility The rights, duties, powers, responsibilities and authority that parents have by law, in respect of their child and his or her property ( Children Act 1989 sec 3 (1))  Education  Medical treatment  Religious upbringing  Choice of surname

Who has PR  Mother – automatic PR  Both married parents

PR – Unmarried father Can acquire PR by  Marrying the mother after the birth  Being registered as child’s father (>Dec 03)  Entering PR agreement with the mother  Adopting the child  Obtain a PR court order  Obtain a residence order

PR - Others  Relatives, step-parents, carers, foster parents have to acquire PR to be able to authorise treatment  Obtain residence order  Special guardianship order  Obtain parental responsibility order  Enter PR agreement

PR – points to note  PR not lost till child is 18, dies or adopted  Not lost after divorce  Many people can have PR at the same time  One person with PR can act alone except for some restricted decisions  If there’s disagreement – Court decides  Cannot be transferred  Can be ‘delegated’

The Child At what age can a child  Vote  Have sex legally  Marry  Be criminally responsible (UK)  Change his name  Work part time  Donate blood

The Child At what age can a child  Vote 18  Have sex legally 16  Marry 16  Be criminally responsible 10  Change his name 16  Work part time 13  Donate blood 17

The Child – Statute  The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian. (Family Law Reform Act 1969 s8(1) So – no statutory right for children under 16

The Child – Case law  Gillick v West Norfolk and Wisbech Area Health Authority [1986]  Re R  Re W

Gillick Case  DHSS advice that contraceptive be made more available to under 16s  Mrs Gillick objected – that it infringed on her parental rights & constitutes assault on her daughter.  High Court – case dismissed  Court of Appeal – overturned  House of Lords – 3:2 in favour of high Court

Gillick case  …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.[1][1]  [1] Lord Frazer at para 174 [1]

Gillick case  Principle beyond contraceptive advice  Under 16 can now consent to treatment without parental approval  No fixed age – depends on the child’s maturity and capability to understand  Consent given will be treated as valid  Parental powers to consent gradually yields as the child matures.

Refusal of Rx Re R  15yr old, under LA care  Admitted to psychiatric unit, severe MI  Appeared lucid when refusing treatment  LA applied to Court – for Rx to be given  Ruling – a minor could only consent to and not refuse treatment  i.e – Gillick only applies to Consent, not Refusal

Refusal of Rx Re W  16yr girl, capable of consent  Refused force-feeding or transfer to specialist unit  CoA – held that it had powers to override the wishes of a minor, whether competent or not.  Ruled that – FLRA did not cover refusal  Flak jacket analogy

Children’s consent Summary If consenting  >16 – can give valid consent  < 16 – consent valid if Gillick competent  Consent not needed from parents If refusing  Refusal can be overridden by PR or Court  Consent for treatment is only needed from one person – child, PR or Court.

Zone of Parental Control  Introduced in the MHA Code of practice 08  Applies to admission to psychiatric unit  Aims to give more powers to children  Parents can no longer override refusal  Encourages use of MHA or Courts  Very unclear, ambiguous and highly criticised.

Capacity  >16 – Capacity  <16 – Competent MCA 2005 – “A person lacks capacity, for the purpose of this Act, if at the material time he is unable to make a decision for himself in relation to the matter because of impairment of or a disturbance in the functioning of the mind or brain, whether permanent or temporary”

Capacity A person is unable to make a decision if …he is unable to: (a) understand relevant information; (b) retain that information; (c) Use or weigh up that information; (d) communicate the decision

Capacity - Principles  > 16 are presumed capable, as adults  <16 – have to prove capability  Capacity can fluctuate  Should be assessed at time of making decision  Mental illness does not equate incapacity, e.g Re C  Increasing recognition of minor’s capacity

In summary  Consent is a fundamental principle in English law, as well as HRA  Protects health carers from litigation  There are 3 sources of consent in children  Only 1 valid consent is needed for treatment to proceed  Consent can be obtained from any child capable of decision making  However, refusal of treatment can be overridden  Consent is specific & can be withdrawn

Case vignette Divide into small groups

Case vignette Susie – age 14  Is Susie Gillick competent?  Can her refusal of treatment be overridden?  Who can override her refusal?  What other ways can the treatment be given to Susie?

Questions & Discussions

Thank You