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