Legal Framework in CAMHS

Peninsula DeaneryMRCPsych CAMHS Module

Dr Femi AkereleOctober 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 ConsentExpress - 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 ConsentThe 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 adultFor children? UNCRC Children Act ECHR

Children – Sources of Consent1. 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 ResponsibilityThe 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 fatherCan 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 ChildAt what age can a child Vote Have sex legally Marry Be criminally responsible (UK) Change his name Work part time Donate blood

The ChildAt 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] Lord Frazer at para 174

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 consentSummary

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