Law Commission submission on DoL of Children and Young People

Dear Tim

Consultation Response

I would like to set out my concerns about children and young people who are deprived of their liberty, many without authority.

Children and young people face a number of disadvantages that I would say amounts to discrimination.

1.            It is ironic that adults who are deprived of their liberty in a hospital where they are receiving treatment for mental disorder, the case of AM v (1) South London & Maudsley NHS Foundation Trust and (2) The S of S for Health [2013] means that a decision maker has a choice of least restrictive alternatives between MHA and MCA, if the person lacks capacity and is not objecting. No such choice exists if a person is under 18.

2.            There is confusion about whether the scope of parental responsibility. Since D (A Child) (Deprivation of Liberty) [2015] they can authorise a DoL. However this was in contrast to RK v BCC [2011] and many the leading commentators including Alex who in my view rightly asserts that this was wrongly decided. At best the law is in a very confusing place and what chance does that give to staff working at the coal face?

3.            It is clear that s.25 Children’s Act is not the solution and in any event is very limited in scope. The reference to it in the MHA Code implies that it is some kind of useable alternative. Clearly it is not. Even if it were, there are very very few accessible places. In the very recent and sorry case of Re P (Application for Secure Accommodation Order) [2015] EWHC 2971 (Fam) we have the unlikely recital:

4. In December 2013 P said that she had taken an overdose of Ibuprofen. She also said that she was hearing voices. She was taken to hospital. She was seen by a psychiatrist and by             Child and Adolescent Mental Health Services (‘CAMHS’). She remained in her local hospital until a specialist bed became available. As there were no specialist beds available locally she      was placed in a unit more than 100 miles from her home. She was admitted as a voluntary patient.

5. P’s behaviours continued whilst in hospital. She made further attempts to self-harm. She refused to eat. In January 2014 she was detained under s.2 of the Mental Health Act 1983.

There was no appropriate bed, she was then moved 100 miles from home and how likely is it that she had capacity and gave informed consent. There was no critical examination of this.

4.            Another disadvantage faced by children and young people is that the AMHP almost certainly will not have experience of children’s issues and I am often informed that in many cases they would not be able to access CAMHS before the decision to detain needs to be taken.

5.            Another problem is there is no equivalent for children and young people of the adult acute admission ward. Most of the specialist units only cater for those who have travelled a long way down the road. What facilitates are there for children and young people who have a short term acute episode? In effect, none.

6.            There is a danger that even if the law is improved, it remains meaningless, as the resources are not there to provide the service. In practice, what we are left with amounts to  contravention of the UN Convention on the Rights of the Child. Article 37 – States that Parties shall ensure that:

(b) No child shall be deprived of their liberty unlawfully or arbitrarily

The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(d) Every child deprived of their liberty shall have the right to prompt access to legal and other appropriate assistance

as well as the right to challenge the legality of the DoL before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

In the Re P case the Judge stated:

28. In this case it took five weeks from 20th August (when P was admitted to Hospital A having inserted a biro into her arm) until 23rd September (when P was taken to Hospital C following her threat to throw herself from a bridge) for a mental health bed to be found for P. That delay is very regrettable. Given the events of the evening of 23rd September, it        could have had catastrophic consequences

7.            In adult services there are various specialisms that are more or less integrated into adult mental health care. When it comes to children and young people, children’s services and adult services occupy different worlds that do not even speak the same language. E.g. How many in adult services would understand issues around the scope of parental responsibility even though we know that young people find themselves on adult wards and what happens where the person who is the nearest relative is not the person with parental responsibility.

8. At the end of the day whatever is devised for children and young people must be easily accessible and ensure that their rights are effective and at the centre of the process. I believe that this should exclude the jurisdiction of the High Court other than on points of law. It must be Article 37 compliant.

I would suggest that currently children and young people’s services remain in the same unlawful place that adult DoL were before Cheshire West and the acid test came along.

The most depressing thing of all is how few people seem to be shouting about this.

Best wishes

Peter