‘The amendments introduced into the Mental Health Act 1983 by the Mental Health Act 2007, amending s.131 of the 1983 Act, in relation to the informal admission of 16 and 17 year olds is, at last, a step in the right direction and goes some way to addressing an unsatisfactory failure to recognise the right to autonomy of a competent child’. Critically analyse this statement with regard to the law relating to the medical treatment of children.
In order to analyse whether the Mental Health Act 2007 has given new rights to children in respect of autonomy it is necessary to examine the way in which children were treated before the introduction of the Act. In doing this it will be necessary to examine the various Acts that have been implemented and the content of these with regard to the rights of children. It is hoped to be able to draw a conclusion from the research as to the effectiveness of the 2007 Act in allowing children to be able to make decisions about their own medical treatment.
Consent to treatment
Consent to medical treatment is founded on the principle of the respect for autonomy, which has been encompassed in Article 5 and Article 8 of the Human Rights Act 1998. Many doctors are of the opinion that there is a legal requirement for consent to medical treatment (Kessel, 1994). Informed consent has become an issue following several cases against doctors on allegations of negligence and battery (Faden and Beauchamp, 1986). Supporters of the Human Rights Act 1998 believe that mature minors should be protected under the right to a private life and should be able to insist on not having their wishes overridden (Hagger, 2003).
Patient autonomy has been the impetus behind legislative changes in relation to the issue of consent. Faden and Beauchamp (1986) believed that the aim of the process of consent is to allow the patient the maximum opportunity to reach an autonomous decision. They believed that this could also be achieved by persuasion through convincing the patient of the benefits of the treatment by appealing to their sense of reason.
Internationally the Nuremberg Code 1947 and the World Medical Association Declaration of Helsinki 1964 have attempted to increase patient autonomy, particularly with regard to medical research. The Human Rights Act 1998 has also increased the rights of autonomy which impacts on not only adult patients but also on adolescents who are deemed to be competent to make such decisions (Hewson, 2000).
In terms of legislation on the issue of autonomy the Family Law Reform Act 1991 was enacted to give 16 and 17 year old a greater degree of autonomy over their treatment. In essence the notion of the Act was that a person in the stipulated age range would be entitled to decide whether or not to accept the treatment offered. Unfortunately there was a reluctance to give full autonomy to adolescents and so in order to allow a degree of parental control s8(3) of the Act was inserted which stated that ‘nothing in this section shall be construed as making ineffective any consent which would have been effective had the section not been enacted’. This effectively allowed a parent to still give consent on the part of the adolescent if they refused the treatment.
The Mental Health Act 1983 did little to assist with autonomy especially when in relation to the autonomy of a child. Under this Act parents or carers of children with mental disorders were given even less autonomy then under the previous legislation. Under the 1983 Act the competence of the patient was even more difficult to establish in cases where the patient was suffering from a mental disorder. It was viewed that such a disorder was likely to lead to the patient being less able to decide whether the treatment would be beneficial to them. The Mental Health Act 1983 Code of Practice regards parental authority for treatment and detention sufficient irrespective if the competence of the child (Department of Health and Welsh Office, 1999).
In 1989 the Children Act attempted to provide a child with a degree of autonomy by granting them limited rights to refuse medical treatment. However, the courts were instructed to view the refusal of the child in line with the professional’s perception of the best interests of the child. This effectively meant that a doctor could override the wishes of the child if he were able to display that the treatment would benefit the child.
Similar attempts at increasing autonomy were contained within the United Nations Convention on the Rights of the Child 1991 which stated that children should have the same dignity and rights of an adult when making a decision concerning their treatment. Article 12 of the convention states that
‘…the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child: the views of the child being given due weight in accordance with age and maturity of the child. … the child shall in particular be provided with the opportunity to be heard in any surgical or administrative proceedings affecting the child directly; or through a representative body.
The Convention was, however, reluctant to allow total autonomy and made it clear that despite the right to autonomy children are dependent on their parents or carers and need protection and guidance. This in essence allows those caring for a child who is refusing treatment to insist on the child receiving the treatment on the grounds that they are incapable of making their own decisions and need the guidance of their parents.
In 1999 the Department of Health conducted the Mental Health Act Review in which it recommended the lowering of the age of capacity for decision making to 16 and inserted a presumption that a child is regarded as competent from the age of 10.
Distinction between consent and refusal of treatment
Whilst accepting that there are occasions when the child should be regarded as competent to give consent the courts have been reluctant to allow a child to refuse to treatment. In order for consent to be given by a minor the court need to be satisfied that the child is competent enough to be able to make such a decision. This was tested in the case of Gillick v West Norfolk and Wisbech Area Health Authority  in which Lord Scarman ruled that
“the parental right to determine whether their child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable them to understand fully what is proposed” .
This case led to the formation of the principle of Gillick competence. In assessing the ability of the child to give consent the courts use the above case as a yardstick for determining the competence of the child.
Although the case mentioned above would appear to open the floodgates for children to be able to assert their right with regard to consent to treatment those who are suffering from a mental disorder are unlikely to be able to rely on this. This was the case in Re R (A minor) (Wardship: Medical Treatment)  in which a 15 year old who had been admitted to hospital with a suspected psychotic illness and who had refused medication was forced to receive treatment. At the Court of Appeal the judge held that a child who had a fluctuating mental capacity as in the instant case could never be considered to be competent. In the case of Re W (A minor) (Wardship: Medical Treatment)  the court held that a parent’s right to consent was not extinguished by the Family Law Reform Act 1969. In this case a 16 year old girl who was suffering from anorexia nervosa was refusing treatment for her condition.
Case law regarding the compulsive treatment is at a variance to the treatment of adults. A competent adult is entitled to refuse medical treatment even if the reason for the refusal is irrational. A competent adult can also refuse treatment without any specific reason for refusing as was demonstrated in Sidaway v Governors of Bethlem Royal Hospital . There have also been occasions where adults who have been detained under the Mental Health Act 1983 have not been regarded as wholly incompetent. This was held to be the case in Re C (Adult: Refusal of treatment)  in which the patient who was schizophrenic refused to have his foot amputated despite the fact that it was gangrenous and that by not having it removed it was likely that he would die. In this particular case the patient accepted a less invasive treatment which resulted in the foot returning to normal without the need to amputate.
It can be concluded from the above that within English law a minor has the right to consent to treatment but is denied the right to refuse treatment. One of the major concerns expressed by doctors with regard to the refusal of treatment is that the essence of medical opinion is that they are required as doctors to act in the best interests of their patient. Allowing the patient to refuse treatment denies the doctors the right to act in the patient’s best interests.
Test for competence
The British Medical Association alongside the Law Society (1995) published guidelines to assist in determining the competence of a child. Assessments are based on the determining whether the child understands the choices available, the consequences of each of those choices and that they are able to make those choices. The person carrying out the assessment should ensure that the child has not been pressured to make the choice they are making.
Most doctors will consider the rationality of the decision made by the child, however they should consider these choices in context of the emotions of the parties, their experience and the social context (Dickenson, 1994; Rushforth, 1999).
The maturity of the child has also been a deciding factor in the assessment of competence. Children mature at different rates and maturity can be affected by the role of the parents in the child’s life (Alderson, 1993). Maturity is of particular relevance in relation to mental health issues of the child. Batten (1996) argues that maturity can be difficult to determine as their can be a harsh fluctuation in the maturity level of a child with a mental disorder.
Gersch (2002) believes that professionals should be trained in child development so as to understand the thought processes of the child. by understanding the way they think the professionals can determine whether the child is making a decision of their own free will or whether the child has been coerced by those responsible for the care of the child. Alderson (1996) believes that in assessing the competence of the child consideration should be given of the child’s understanding of their condition. Alderson holds that an assessment of the child’s experience of their illness will disclose their level of maturity and understanding of the consequences of the refusal of treatment.
Chapman (1988) felt that using the age of the child as a traditional measure of competence was flawed as children mature at different levels. Using age as a measure failed to take into account those suffering with mental disorders, some of whom were unlikely to ever be competent enough to make a decision in their own right.
Ethics and consent
When dealing with adult patients with mental disorders the emphasis is on allowing the patient to make autonomous decisions. By contrast with children the major deciding factor is the welfare of the child as expressed by those who have parental responsibility for them and the medical staff treating the child.
The Mental Health Act 2007 is an attempt to redress this imbalance by accepting that children mature at a much earlier age nowadays and that in the past the parents have made decisions regarding the child’s treatment without proper consideration of the quality of life the child will have (Dickenson, 1994). Given that it is the children who have to live with the decisions that are being made about their treatment the 2007 Act seems to enforce the right of the child to be able to make their own decisions.
Mental illness and treatment
Much of the above centres on the rights of children in respect of general medical treatment and allows for the decision of a child to be overruled where the situation is regarded as life threatening, as demonstrated in the case mentioned above with a child suffering from anorexia. Shaw (1999) believes that children should be involved as much as possible where refusal of such treatment is only likely to have minor consequences for the child. Rushforth (1999), however, feels that there should be a sliding scale of involvement in the decision making process, with the medical practitioners, parents and children all being actively involved. Rushforth (1999) also believes that even if the admission was formal or compulsory this should not affect the autonomy of the patient in respect of all treatment. It could be argued that overruling the refusal of the child to undergo treatment is tantamount to child abuse, as the child is forced to have treatment against their will.
The impact of the Mental Health Act 2007
From 1 January 2008 16 and 17year olds can no longer be admitted to hospital for treatment for a mental disorder based on the consent of a person who has parental responsibility for them. The change in legislation has been into section 43 of the Mental Health Act 2007 and states
(4) If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.
By virtue of subsection (3) a person aged 16 or 17 is able to give consent for an informal admission to hospital even if those who have parental responsibility for them refuse to consent.
(3) If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.
Given that this section only came into force since January 2008 there is no case law available to prove that the legislation will be fully adhered to. It is unclear from the information available whether exceptions will apply where the refusal of treatment can be overruled.
Life threatening conditions
In some spheres eating disorders have been regarded as a form of mental illness. Since the change in legislation to the Mental Health Act whereby 16 and 17 year olds can refuse medical treatment it is likely that conditions such as anorexia nervosa will be classified as illnesses rather then mental abnormalities. Should such conditions be classed as mental illnesses this would effectively mean that an adolescent could refuse treatment thereby starving themselves to death.
Before the introduction of the 2007 Act patients with eating disorders where compulsorily admitted to hospital for treatment under the Mental Health Act 1983. Compulsory treatment for this condition has been deemed to be compatible with the Human Rights Act 1998 although many have questioned the legitimacy over parental consent being applied where the sufferer is aged between 16 and 18.
In the white paper ‘The New Legal Framework’ published in 2000 it was recommended that the amended Mental Health Act should introduce community detention powers, at the same time as altering the detention and representation rights of children (Department of Health, 2000a). It was argued that the definition of mental disorder, as would be amended by the 2007 Act, would become to broad and concerns were expressed that should anorexia be regarded as a mental disorder difficulties might arise in being able to force feed sufferers as doctors have been able to in the past (Royal College of Psychiatrists, 2001). This point was raised during the early stages of the Bill.
In an attempt to prevent such an anomaly the white paper suggested that the limits of the definition of mental disorder should be clearly set. According to the Royal College of Psychiatrists (2001) the proposed amendments to the definition were sufficient and would not cause any difficulty when dealing with a patient with an eating disorder. In their report they stated that as the main treatment was in making the patient eat it could be argued that this was not medication and therefore the patient would not be able to refuse in reliance on the Act as this specifically deals with the refusal of medication (Szmukler et al, 1995). It was also felt that someone suffering from an eating disorder could be admitted under a formal admission process as there was a severe medical risk to the sufferer. Since s43 deals specifically with informal admissions and the right of the patient to refuse to be informally admitted, classification of the illness as a severe medical risk could be used to formalise the admission which would mean that the patient would not be able to refuse admission relying on the Act.
Capacity and the Mental Health Act
Changes to the Mental Capacity Act 2005 have been included within the 2007 Act which assists those dealing with patients with eating disorders to be able to detain the person under a formal admission. Section 50 of the 2007 Act deals specifically with the deprivation of liberty and highlights the occasions where a patient can be deprived of their liberty. The amendments have the effect of inserting into the 2005 Act the following
4B Deprivation of liberty necessary for life-sustaining treatment etc
(3) The second condition is that the deprivation of liberty—
(a) is wholly or partly for the purpose of—
(i) giving P life-sustaining treatment, or
(ii) doing any vital act, or
(b) consists wholly or partly of—
(i) giving P life-sustaining treatment, or
(ii) doing any vital act.
(4) The third condition is that the deprivation of liberty is necessary in order to—
(a) give the life-sustaining treatment, or
(b) do the vital act.
(5) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P’s condition.”
By including this provision into the 2005 Act doctors can insist on hospitalisation and treatment of a person with an eating disorder on the grounds that the treatment is necessary in order to sustain life. During the discussions leading up to the change in the Mental Health Act the Government expressed concern about the use of compulsory powers following a diagnosis of mental disorder (Department of Health, 2000b).
In the New Legal Framework paper it specified that there should be an assessment period of a maximum of 28 days where compulsory treatment could be given. After the expiration of this period a tribunal will be required to authorise a care plan guided by the opinion of an expert. Those responsible for the treatment of patients with anorexia nervosa argued that the patient would be unlikely to have significantly improved within 28 days and would still lack the necessary capacity to make rational decisions as the condition has the effect of impairing the mental capacity of the patient.
The paper also suggested that in some instances patients could be treated through compulsory community treatment as opposed to enforced admission. This was included under section 32 of the 2007 Act. A safety net has been inserted into the amendments such that a community patient can be recalled to hospital if they need medical treatment for their condition.
17E Power to recall to hospital
(1) The responsible clinician may recall a community patient to hospital if in his opinion—
(a) the patient requires medical treatment in hospital for his mental disorder; and
(b) there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose.
In cases of eating disorders community treatment might be difficult to monitor or control although it was agreed by those dealing with these disorders that treatment of patient’s at home could be beneficial in preventing relapse. In Somerset and Wessex the Somerset and Wessex Eating Disorders Association has adopted the National Plan of meal support. The role of the meal supporter is to help the person with the disorder to overcome their anxiety about being scrutinised over the foods they are eating. Meal supporters in this area have found that the best way to assist a sufferer is for the meal supporter to eat exactly the same as the sufferer that way the sufferer does not feel that they are being patronised and singled out. Health professionals have agreed that the provision of meal supporters nationally will enable people suffering from eating disorders to be treated in the community rather than having to be hospitalised.
Where the condition of the person suffering from an eating disorder is so severe and they are refusing treatment medical practitioners are not limited by the 2007 Act with regard to the compulsory admission of patient’s. Fears that a 16 or 17 year old patient with anorexia nervosa could refuse treatment on reliance of the 2007 Act are unlikely to come to fruition. The treatment of adult patients suffering from this condition since the introduction of the 2007 Act is still carried out through compulsory admission under the Mental Health Act 1983.
The recent case of R. (on the application of M) v Homerton University Hospital  EWCA Civ 197 involved a woman in her forties who was suffering from anorexia nervosa. The patient was admitted to hospital under s2 of the 1983 Act and following treatment her condition improved and she was gaining weight. The mother of the applicant indicated to the hospital that she intended to apply to the court for an order of discharge. Realising that this would result in the release of the patient the hospital applied to have the woman detained under s3 of the 1983 Act as well as applying to have the mother displaced as the nearest relative under s29 of the Act. The patient appealed on the grounds that compulsory admission was unlawful. The court disallowed the appeal and concurrent detention was ordered. Using the decision above it would be impossible for a 16 or 17 year old to argue that they had been treated any differently to an adult in the same situation, therefore the courts would be likely to order compulsory detention.
From the above it can be concluded that the amendments made by the Mental Health Act 2007 are likely to have a positive impact. The insertion of the right of 16 and 17 year olds to refuse informal admission to hospital for treatment gives them a degree of autonomy that has previously been denied to them. Within the amendment adolescents in this age range are also entitled to insist on informal admission in situations where their parents or carers have refused to allow them to be admitted.
The concerns expressed over the treatment of such people with eating disorders has been addressed by allowing doctors to apply for formal admission where the condition of the person has deteriorated to the extent that the condition has become life threatening.
The use of compulsory community treatment orders is also likely to be beneficial in dealing with patients with eating disorders as statistics have shown that there is a higher mortality rate amongst those treated compulsorily in hospital then those that have been treated at home or in the community.
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