Mental Health law – are we getting it right for every child?
Professor Colin McKay
The Scottish Mental Health Law Review has proposed major reforms to mental health law affecting both adults and children. It found that the current system was fragmented, with significant gaps in support, and did not guarantee that children’s human rights were protected and fulfilled.
Background to the Review
The Scottish Mental Health Law Review, chaired by John Scott KC, issued its final report in September 2022. The Review took three years and makes over 200 recommendations. I and Professor Jill Stavert were on the Review’s executive team.
The current law which governs detention and compulsory treatment for mental ill health is the Mental Health (Care and Treatment) (Scotland) Act 2003. The Act applies to children in the same way as it does for adults, subject to some additional duties, including that hospital accommodation for patients aged under 18 should be ‘sufficient for the particular needs of that child or young person’ (s23).
Making human rights central to mental health law
Relatively few children are detained under mental health law, although the Mental Welfare Commission has expressed concern about children being detained in adult mental health wards.
The Review highlighted a number of wider issues with the current framework of law and services.
Central to its recommendations was its proposal that mental health law should not only protect the rights guaranteed in the ECHR such as liberty (Article 5) and bodily autonomy (Article 8) but should deliver the full range of human rights articulated in international human rights instruments, including the UN Convention on the Rights of the Child (UNCRC), the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and the International Covenant on Economic, Social and Cultural Rights. Viewed through that lens, Scotland currently falls short.
Gaps in the system
We heard of many children being referred to specialist Child and Adolescent Mental Health Services (CAMHS) who had significant and urgent mental health needs but did not meet the criteria for CAMHS, and who could not access more appropriate support. We recommended the creation of clear and attributable duties on Scottish Ministers to ensure care and support was provided to secure children’s human rights, including the right to the highest attainable standard of mental and physical health.
We also heard of particular difficulties for young people in crisis, including those at risk of serious self-harm. Psychiatrists told us of times they had detained such children in mental health wards as the only way to keep a young person safe; even although those wards may not be suitable, and it was questionable whether the young person met the statutory criteria for detention. We recommended that the Scottish Government undertake systemic reform of the services available to children experiencing acute mental distress.
Mental health law or child law?
Although we accepted that mental health law should continue to apply to children where appropriate, there are a number of complex issues about the interaction between child law and the law relating to legal capacity.
The Age of Legal Capacity (Scotland) Act 1991 provides that children have the capacity to consent to or refuse medical treatment if they are capable of understanding the nature and possible consequences of the treatment. The test for authorising compulsory treatment under the 2003 Act is a different one – of ‘significant impairment of decision-making ability’ which is attributable to a mental disorder. The extent to which the child’s age and maturity may influence a determination that the child meets the criteria for detention is not clear.
There are similar complexities at the international level, with tensions between the UNCRC and the UNCRPD, including about how far the wishes of a young person with a mental or intellectual disability should be given effect.
The Review recommends replacing ‘incapacity’ and ‘significantly impaired decision making’ with a new test of whether the person, having been provided with any necessary support, is able to make an autonomous decision – but more work needs to be done to resolve how this might apply to children.
The boundary between childhood and adulthood is another problem area, particularly with the Government’s proposal in the Children’s Care and Justice (Scotland) Bill that children up to age 18 may be subject to the jurisdiction of Children’s Hearings. Both the Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007 potentially apply to someone aged 16 or over. This means that a 16 or 17 year old may be subject to several overlapping protective regimes, with different routes for entry, criteria for intervention, and potential outcomes.
This is not the only area of overlapping legal frameworks. Many children who are subject to compulsory measures of care under child protection law, or have rights under additional support for learning legislation, have a ‘mental disorder’ as defined in the 2003 Act (which includes learning disabilities, personality disorders and neurodevelopmental conditions). In some cases, the system the child enters is determined more by the professionals they come into contact with than the child’s needs. The separate legal silos also mean that none of the judicial bodies that seek to uphold the rights of the child (the children’s hearing, the mental health tribunal, the additional support needs tribunal and the civil courts) has a locus over all the help the child may need.
The review considered recommending a radically new model, with a single judicial body which could ensure that the full range of integrated support is available, built around the individual needs of the child. Ultimately it concluded that further work was needed to consider the implications of such a change, and that this needed to be integrated with the work of the Scottish Government to develop a holistic and child-centred system of care and support for children, linked to the implementation of The Promise, and the incorporation of the UNCRC.
What next?
The Scottish Government is considering the Review’s recommendations, and intends to issue a response this summer setting out its proposed way forward.
Biography
Colin is a Professor of Mental Health and Capacity Law at the Centre for Mental Health Practice, Policy and Law Research, Edinburgh Napier University. Before joining Napier in 2020, he was Chief Executive of the Mental Welfare Commission for Scotland. From 2019-22 he was an Executive member of the Scottish Mental Health Law Review.
Email: c.mckay@napier.ac.uk
Twitter: @colinimckay