The Children Act 1989

This is the main other provision for those under 18. It is usually associated with local authorities and is used for interventions to safeguard the welfare and safety of children and young people. It does however have a relevance for health services and can sometimes be used by doctors.

• Part 3 of the Act applies to learning disabled or mentally disordered children
• If necessary e.g. the child is otherwise at risk, the child could be held against their will (deprived of liberty) under the Children Act, Section 25.
• This could be on a hospital ward or specialist adolescent unit as well as in local authority accommodation
• The Act cannot be directly used to ‘treat’ i.e. for interventions beyond care and support but authority for treatment could be sought from someone with parental responsibility or common law or the Child and Family Court
• After 72 hours an authorisation for prolonged deprivation of liberty must be obtained from a Court

Common law and under 18s

This requires a special mention because of the unique positon of children and young people and the extra sensitivity around their care. Some pointers to guide clinicians are that:

• The Family Law Reform Act 1969 gave 16 and 17 year olds a statutory right to consent to treatment independently of their parents
• The concept of ‘Gillick Competency’, deriving from a piece of case law, empowers some under -16 year olds also to consent to treatment independently of parents
• Under 16s who are not Gillick-competent and are refusing treatment could have their refusal over-ridden by a parent or a court and treatment could then be enforced as necessary in the view of a doctor or other health professional
• Gillick competent under-16s and 16/17 year olds could have their refusal of treatment over-ridden but this is less likely to happen in practice due to human rights concerns
• If it did lawyers are likely to recommend recourse to the courts rather than reliance on parents because of the human rights concerns
• The Mental Health Act 2007 made it unlawful to admit 16/17 year olds to psychiatric hospitals on the consent of a parent

This means that a 16/17 year old can only be treated on the basis of their valid consent or after an application under the MHA

Common Law

This term simply refers to non-statutory law i.e. case law as made by judges. Some common law relevant to care and treatment has been replaced by the MCA, but the common law power to prevent loss of life or serious harm still applies in health settings. Usually for common law to be used the following should apply:

• Treatment, possibly involving detention, is necessary in an emergency
• To prevent loss of life or serious harm to a person or to others
• On a short-term basis, since in the longer-term the MCA or MHA or a court order would have to apply
• Irrespective of capacity, which it may not always be possible to assess
• Use of common law powers is subject to an undefined threshold around the seriousness of the incident and the urgency of the need for action

Deprivation Of Liberty Safeguards (DoLS)

If the provision of care or treatment under the MCA involves more than restrictions on liberty deprivation of liberty may apply. DoLs is a statutory power that was added to the MCA in 2007. Currently it applies to hospitals and registered care homes only. For other cases an application to the Court of Protection may be made.
DoLS is appropriate if a person is subject to a care and treatment regime that they cannot consent to and that involves deprivation of liberty

• Following a Supreme Court rulin (usually referred to as Cheshire West) the definition of deprivation of liberty now depends on what is known as the ‘acid test’ i.e. the person is deprived of liberty if they are not free to leave and are subject to continuous supervision and control
• Where deprivation of liberty applies the person must either be detained under the MHA or be referred to the Local Authority for assessment under DoLS.
• This interface is not always clear, especially in psychiatric hospitals, but a guide is that if the person lacks capacity but is compliant DoLS should normally be used but if not this point towards the MHA
• Since the MHA cannot be used in most care homes and
• A DoLS authorisation constitutes an authority for deprivation of liberty not for treatment but treatment could be given under common law doctrine of necessity/S. 5 of the MCA
• A DoLs assessment involves at least two professionals, one of them a doctor, and if deprivation of liberty is held to apply results in an authorisation for a specified period with or without conditions

Mental Capacity Act 2005

As a piece of legislation this is of still greater importance than the MHA. It affects more people and is as powerful, more so in some ways as its remit covers both physical and mental disorder as well as a broad range of welfare decisions including financial.
The MCA allows decision-making where someone is shown to lack the cognitive functioning to make the decision themselves, known as lack of mental capacity. This is decided according to a definition of capacity in S2 and a functional test in S3 of the MCA. In regard to medical treatment it can be given if it:

• It is in the person’s best interests and
• Is not contrary to a valid Advance Decision or valid objection from a Lasting Power of Attorney or Deputy
• Treatment or care may be provided under the common law doctrine of necessity using the MCA Section 5 as a defence against liability.
• Restrictions on liberty may apply and reasonable restraint may be used (Section 6)

Mental Health Act 1983

Detention under the MHA may be applicable where:

• The person has a mental disorder within the meaning of the MHA and:
• Is refusing or is incapable of consenting to treatment for that disorder
• Requires inpatient assessment or treatment for that disorder
• Would be a risk to their health or safety or to the protection of others if they did not receive assessment or treatment
• Cannot be assessed or treated in any other and less restrictive way such as being treated voluntarily in the community or being admitted to hospital voluntarily.

The MHA is usually associated with compulsory admission to hospital for treatment. Most often this will mean use of Sections 2 or 3. Both allow for compulsory treatment.
However, it also provides options for a supervisory framework for care and treatment in the community which stops short of compulsion. There are 3 options as follows:

• Following detention on S.3 or other unrestricted treatment section the patient can be discharged on to a Community Treatment Order (CTO) with conditions around treatment and welfare and a liability to easy recall to hospital if the patient is in-need of treatment.
• Either following detention in hospital or directly in the community without having been in hospital at all the person can be referred to Guardianship, with similar conditions to a CTO but without the power to recall to hospital.
• If the person has been detained via the criminal justice route and has been placed on a restricted detention section they can then be discharged on a Conditional Discharge. This involves strict conditions with immediate recall to hospital if the conditions are not met and there is a need for hospital treatment.

Ethical Justifications For Compulsion

Broadly speaking, the ethical justification for the use of compulsory treatment come under two main headings:

Defensive

• This means Society’s right to protect itself from people who when unwell may threaten the safety and well-being of its members. Without compulsory treatment society will suffer

Paternalistic

• This is Society’s responsibility to help people whose main risk is to themselves and whose refusal or inability to consent to treatment is symptomatic of their condition. Without compulsory treatment the individual will suffer

MAIN ROUTES TOWARDS COMPULSORY TREATMENT

• The Mental Health Act 1983
• The Mental Capacity Act 2005
• Deprivation of Liberty Safeguards 2007
• Common Law
• The Children Act 1989

Human Rights Act 1998

Before looking further at these areas in more detail we must consider the fundamental importance of the HRA.

• All public bodies must work in conformity with the HRA including private providers when they are receiving public funding
• Article 5 provides a right to liberty and security of person
• This is a qualified not an absolute right so it has to be interpreted according to the circumstances and other rights with which I might be in conflict
• Detention when someone is of unsound mind is one of the qualifications and is usually considered to refer to mental disorder in a broad sense
• This means that the mere fact of detention under either the MHA or the MCA/DoLS is likely to be lawful
• However, the HRA stipulates that this must be within a process defined in law

The person detained must also have access to a court-like body to decide on the necessity of detention in the particular case

Exceptions to Autonomy and the Right to Refuse

Broadly speaking, there are 3 exceptions:

• When the person has a severe mental disorder irrespective of their capacity, when they may potentially be treated under the Mental Health Act 1983
• When the person has an impairment of the mind or brain that results in lack of mental capacity to understand their need for treatment, when they can potentially be treated in their best interests under the Mental Capacity Act 2005. If used together with the Deprivation of Liberty Safeguards (DoLS) the person can also be detained in much the same way as under the MHA.
• Sometimes when they are a child or young person under 18, and lack either capacity or it may be competence (the maturity and mental development to understand their need for treatment) in which case they can potentially be treatment under various authorities including common law.

Right To Autonomy And Refusal of Treatment

Medical treatment for a capacious patient can usually only proceed on the basis of a valid, sometimes called an informed, consent. This means that the patient has capacity i.e. the cognitive ability, to understand their medical condition and the treatments on offer, has been given information about those treatments and the consequences, including the risks, of taking the treatment, and also of refusing it, and of their own volition and without coercion, has decided to undertake one of the treatments on offer.

This is sometimes called an informed consent because it is consent informed by understanding of the full implications of what they are doing. As such it provides an authority in law for treatment to be given. It may, but does not always have to be, expressed in writing.

Refusing medical treatment is the reverse side of consenting to treatment. It is implicit in the concept of voluntary consent to treatment that a person has a right not to consent unless there are special circumstances. The basic points are:

• All adults (18 plus) with the mental capacity to do so have the right to refuse treatment for a physical condition
• In most cases they also have the right to refuse treatment for a mental disorder. It is only exceptionally that people can be made subject to such treatment when they are not consenting.
• This is generally accepted to be a basic human right within a free and open society.

Children are different and can sometimes be given treatment they are not consenting to and may not be able to consent to due to age and other factors.
Even so in many cases many children, particularly once they are over the age of 13, who are refusing treatment have that refusal respected.