Capacity & Rights

Dr D VijayasankarConsultant Emergency Medicine

Peterborough City Hospital

Objectives

• 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?

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• Protection

• Participate & to have a say

• Family life

• Have decisions - best interests

• Be involved in making those decisions.

• Non-discrimination

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• Treat as equal

• Assess risk and Emotional needs

• Respect decisions by parents or relatives or the child

• Respect and awareness of cultural differences

Children Act 1989

Children: The Five Outcomes

•Stay Safe.

•Healthy.

•Achieve Economic Wellbeing.

•Positive Contribution.

•Enjoy & Achieve.

Green paper, Every Child Matters – V Climbie 2000

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• Children commissioner

• LA duty

• 2ndary legislation & guidance re databases

• LA: safeguarding children boards

• Integrated inspection framework

• Fostering arrangements

Children Act 2004

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

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?

Case 1

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 ?

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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?

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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."

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.......

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Sexual Offences Act 2004

•Aim of 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.

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’

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)?

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?

28BMA 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

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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?

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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

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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

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

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