Is an adolescent far better of under the statutory law than the common law? Discuss
The tension between adolescence and adulthood has been a fertile breeding ground for legal reform in mental health. The issues surrounding the admission and detention of mentally ill adolescents in hospital are fabulously complex and have been swept along with the tide of reform ever since the Law Commission in 1995 recommended an overhaul of the system for those who lack the capacity to decide their own fate. A number of overlapping regimes now form the panorama of the rights of adolescents regarding admission to hospital, treatment and detention for mental disorder and, allied to enduring European and International human rights, two recent Acts now complement the legal environment. Such an array of overlapping laws are indicative of a more liberal approach to dealing with adolescents as Rutter et al note: “In most developed countries, there is a growing realisation that adolescents have a strong personal interest in taking responsibility for decisions affecting their future”. Following the Law Commission’s report of 1995, a tortured and fractious period of reform ensued in Parliament culminating with the Mental Capacity Act 2005. This Act was designed to cure the perceived limbo in which patients lacking mental capacity and their doctors found themselves in, highlighted so appallingly by numerous cases concerning the sterilization of adults with learning difficulties without consent or safeguards, which tilted the balance of power from the patient to the doctor. A new Mental Health Act has since made some profound changes to the 2005 and 1983 Acts, most notably introducing deprivation of liberty safeguards as the UK was obliged to do after scorching criticism from the European Court of Human Rights exposed significant breaches of Article 5 of the ECHR in the UK system of care. Such safeguards do not, however, apply to adolescents aged 16-17. The concerns about young people during the bill’s passage were placated by a late amendment to the effect that any treatment of adolescents should be provided in a way that is appropriate for their age and needs. Neil Allen articulates well the differing regimes at stake:
“Both the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) authorise the treatment and detention of the mentally ill. Their interface is often clear cut. After all, the 1983 Act formally sanctions and safeguards compulsion where it is necessary to protect patients or others. Individuals can only be detained for psychiatric, not physical, health purposes and such detention can only take place in hospital. In contrast, the informality of the 2005 Act defends actions taken in the best interests of those unable to decide for themselves. Compulsory treatment and detention of those with capacity cannot be sanctioned under the 2005 Act. Nor can those lacking capacity be treated or detained for the protection of others.”
There is no minimum age limit for compulsory detention under the 1983 Act, a situation which has itself been criticised. Thus it would appear that adolescents can be deprived of their liberty without the safeguards the 2007 Act introduced yet still be under the protection of the Children’s Act 1989, the Mental Health Act 1983 and, crucially, the Human Rights Act 1998. Jane Fortin’s statement, applied to the admission to hospital and detention of adolescents, is mostly correct: the statutory legal environment is far superior to the common law and less open to abuse: for example being detained without consent and without independent safeguards. The common law system does have the advantage of being flexible, however, and, as Lord Steyn has noted, remains a “useful concept” for those who need to be treated informally and without the stigma of being sectioned. The flaws with the common law system were exposed in the case of R v Bournewood Community and Mental Health Trust, ex p L where the House of Lords ruled that the common law powers derived from F v West Berkshire Health Authority could be invoked to authorise the detention of patients without mental capacity. Since L was a “voluntary” informal patient he was not protected by the safeguards of the 1983 Act and was essentially falsely imprisoned without prospect of judicial review. Chapter 1 will deal with the statutory frameworks and chapter 2 will look at the common law.
Chapter 1: Statutory framework: Admission to hospital and detention
The detention for admission to hospital for young people is inexorably linked to the decision to begin treatment but, as the Code of Practice from the Department of Health notes, there are occasions when they should be assessed separately. Sections 2 and 3, respectively the process to be undertaken for assessment and treatment, of the Mental Health Act 1983 are indeed similar in many respects and come under the ambit of part II which deals with compulsory admissions to hospital. Under section 2 an application for admission may be made by an approved mental health professional or the patient’s nearest living relative. There are two conditions then set out which establish that an application will only succeed if he/she is suffering from a mental disorder which justifies detention for assessment and the detention is motivated by a concern for his/her own safety or the protection of others. The Act then provides under s.3:
“An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with.”
The Code of Practice states that for 16-17 year olds one of these two medical practitioners should be a Child and Adolescent Mental Health Services specialist (CAMHS). Of course the mental disorder cannot simply be behavioural problems but must be medically recognised. Dependence on drugs or alcohol are excluded as is a learning disability which does not satisfy the requirements of being either “abnormally aggressive” or being “seriously irresponsible conduct”. The requirements of compulsory admission can, supposing the relevant criteria apply, override a 16-17 year old who, with the capacity to make a decision, refuses to consent to being admitted to hospital. Consequently the provisions of the 1983 Act may apply where an adolescent is able to consent and refuses and also where they are unable to consent and the detention could constitute a deprivation of liberty. If the conditions above are not fulfilled then an application to the court must be made or the emergency provisions under s.4 invoked. Thus the safeguards behind the 1983 Act for young people who are facing compulsory admission, for a maximum of 28 days for assessment or 6 months for treatment, to hospital are strong even without the deprivation of liberty safeguards introduced by the 2007 Act which, as we have seen, do not apply to those under the age of 18. Section 3 of the 1983 Act covers detention in lieu of treatment and the conditions stated there are as strong as section 2 above with the added qualification that there must be appropriate medical treatment available. The late insertion into the Bill of the requirement to take into consideration the needs of the child, designed to placate those who felt that the lack of safeguards would jeopardise children’s interests, provides further strength to the suggestion that young people are well protected even at the initial admission stage prior to treatment being given. The Act provides that:
“(2) The managers of the hospital shall ensure that the patient’s environment in the hospital is suitable having regard to his age (subject to his needs). (3) For the purpose of deciding how to fulfil the duty under subsection (2) above, the managers shall consult a person who appears to them to have knowledge or experience of cases involving patients who have not attained the age of 18 years which makes him suitable to be consulted.”
David Hewitt notes that this section above will go a long way to preserving the integrity of children who are admitted and detained in hospital although the practicality of keeping children in NHS wards with children of their own age is questionable in a climate of unrivalled spending cuts and the realities of a busy hospital. The Sheffield Health and Social Care NHS Trust internal policy guidance on 16-17 year olds and mental health issues concedes that admitting such young people to adult wards may be sometimes appropriate. Despite this frank admission the safeguards in place at Sheffield are comprehensive and include ensuring that all adults on a mental health ward have enhanced Criminal Records Bureau checks to protect adolescents, an Adult Consultant Psychiatrist being responsible for every 16-17 year old who is admitted, multidisciplinary “joined up services” and even the relevant training of all staff. This level of protection is, to some extent, up to the individual hospital as it is up to them how they implement the Code of Practice. There are, at a basic level, in effect two tiers of protection for 16-17 year olds who face compulsory admission/treatment to a hospital: first at the stage of assessment and secondly at the stage of treatment.
There are further safeguards built into the system of detention under the 1983 Act and one of the most important is the right of appeal enshrined under s.66 which allows a patient to appeal to a mental health review tribunal within 14 days of admission to a hospital. As Webster noted in 2003 the opening up of advocacy and independent opinion to 16-17 year olds is commendable. This procedural safeguard was one of the principal criticisms of the common law articulated by the European Court of Human Rights and ensures Article 5 compliance by ensuring access to swift review mechanisms. Mention should also be made of the Children Act 1989 which allows the detention of 16-17 year olds under s.25 in secure accommodation although it’s applicability to psychiatric hospitals is questionable.
Chapter 2: The Common Law
The Mental Health Act 1983, as amended by the 2007 Act, provides a very strong statutory framework which has indeed replaced if not made redundant the inherent jurisdiction of the High Court and the common law doctrine of necessity. The inherent jurisdiction of the High Court allows the court to make decisions which are in the child’s “best interests” and have been invoked over the years to authorise the placement of young people outside the scope of the 1983 Act. Much criticism has been made of the “best interests” approach which was based on the seminal Bolam case which ensured that any treatment would be lawful if it conformed to a reasonable and competent body of professional opinion despite the existence of a contrary body. The development of judicial dicta to the effect that Bolam was out of date gathered pace and ultimately the European Court of Human Rights ruled that “L had been deprived of his freedom solely on the basis of clinical judgement”. Brazier & Cave justifiably point out that decades of rubber-stamping medical decisions had been brought to an end in Strasbourg. Bearing in mind that the 1983 Act is not required when a patient is ‘voluntarily’ admitted to the hospital the authorities in the seminal case of Bournewood admitted L to the hospital under the common law and he stayed there seven months in a kind of legal limbo, broken only by a claim of false imprisonment. This was the decision which ushered in a raft of new legislation, culminating in the Mental Health Act 2007 which has been drafted in part to plug the so-called “Bournewood gap” as many commentators and Neil Allan put it:
“History will judge whether Schedules Al and 1A of the 2005 Act have managed to plug the ‘Bournewood gap’. To some extent, they take a belt and braces approach by prescribing a procedure to deprive liberty in circumstances that go beyond the facts of Bournewood.”
R v. Kirklees Metropolitan Borough Council ex parte C  2 F.L.R. 187 and Re C (Detention: Medical Treatment)  2 F.L.R 180;
If we recall that the Deprivation of liberty safeguards do not apply to those under 18 then is it not the case that the Bournewood Gap remains unplugged in relation to adolescents in the realm between childhood and adulthoodFor adults the 2007 Act will operate to battle against the discredited common law but for 16-17 year olds their susceptibility to the inherent jurisdiction and the common law of necessity is a cause for concern. The shaky development of the law of necessity was criticised by Strasbourg Court who felt that the piecemeal development of this doctrine extended far beyond the healthcare decision-making role it had carved out for itself originally. The court eloquently summed up the crippling failures of the doctrine, concentrating on additional factors such as the lack of time limits, improper procedures for dealing with those who cannot communicate, lack of proper admission procedures and no requirement of continuing clinical assessment. These factors, taken with the lack of proper review mechanisms and the one-dimensional application of the Bolam test put the UK in breach of article 5(4) of the ECHR. Is the common law dead thenIt could be a little premature to predict the demise of this unique aspect of English law as Tracey Elliott observes on a recent family law case:
“Baker J expressed the view that the court’s protective inherent jurisdiction had been ‘substantially superseded’ by the ‘introduction of a comprehensive statutory regime for the authorization and control of placements that amount to a deprivation of liberty’ and this view was described by the Court of Appeal as being ‘plainly right’. However, Munby LJ has made it clear that, in his view, both the inherent jurisdiction of the High Court in respect of incapacitated adults and the common law justification of necessity still remain and may be used by a court in an appropriate case. What such a case is remains to be seen.”
We may endeavour to answer this last question posed by Elliott as being a situation where a 16-17 year old does not come under the ambit of the 1983 legislation, perhaps because their learning disability is not severe enough, and the High Court may once again resurrect the necessity doctrine and risk censure from Strasbourg. Quite how Munby LJ felt able to make this assertion is unknown and it is perhaps not too controversial to say that in the human rights era any exercise of the common law powers of the High Court will fall foul of article 5 of the Convention for no longer can the common law tread with impunity over the rights of individuals in the UK. Brazier & Cave eloquently conclude that doctors are imposing “treatments” upon patients which are patently not in their best interests. The use of the common law in justifying the arbitrary detention of those who do not fall under the ambit of the 1983 Act is but an extension of the medical profession being given too much power:
“One of the extraordinary features of this area of law is that not until 1987 did this question trouble the courts. In earlier times, perhaps no-one gave much thought to the legality of treating patients lacking mental capacityDoctors and families simply went ahead on the basis that “doctor knows best”The rise in medical litigation and increased for patients’ right began to worry doctors. Health professionals feared litigation if they went ahead with treatment without consent”.
The problems with the common law are legion and open to abuse but are there any advantages to be found in the doctrine of necessity at allClearly there is an inherent flexibility to the common law which ensures that where people are being treated in their best interests and they are incapable of consenting then indeed they may be detained without undue delay, without the stigma of being “sectioned” and, as Lord Steyn notes, it is clearly a “useful concept” albeit one which is susceptible to abuse. He goes on to note that health care professionals owe a duty of care to their patients but this is not enough to guarantee against “misjudgement and lapses by the professionals involved in health care”. Of course the Human Rights Act also applies when the common law is adopted and so any excessive or arbitrary detentions do now have a remedy in UK courts and to some extent the possibility of such a detention has been lessened in our new era of human rights.
In conclusion Jane Fortin’s statement that an adolescent aged 16-17 is far better of under the statutory law than the common law is mostly correct even when applied to admissions to hospital and detention. The robust statutory framework which has gestated in Parliament for 11 years since the original Law Commission proposals is no less than a triumph for the protection of adolescents aged 16-17 and indeed adults as well. The different stages of admission and treatment, joined up services, advocacy and representation, possibility of speedy review, appropriate safeguards and conditions at all stages and sections covering both informal and formal admissions must all be preserved and if possible extended. Even the Government White Paper ‘Reforming the Mental Health Act’ acknowledges that the common law and the 1983 Act as it stood then did not provide a robust enough framework for protecting the rights of those who are arguably in most need of justice. The Bournewood case, which led to the groundbreaking decision in Strasbourg and overturned a slim majority in the House of Lords, has been plugged by the 2007 Act for those over 18. For those who are 16-17 however the risk remains that the common law could again be used to make decisions which are not in the patient’s best interests although it should be stressed that the common law does offer a certain flexibility which demonstrates its continuing utility. The lack of deprivation of liberty safeguards as introduced by the 2007 Act were to some extent tempered by the inclusion of a section which put a duty on hospitals to provide age appropriate accommodation accustomed to the needs of the patient. But in an age of rampant budget cuts we may get to a situation where this conciliatory amendment will be no more than lip-service. Time will tell.
Allan, Neil (2010) ‘ The Bournewood Gap (as amended)’ Med. L. Rev. 2010, 18(1), 78-85
Elliott, Tracy (2011) ‘Deprivation of Liberty and the Mental Capacity Act 2005’ Med. L. Rev. 2011, 19(1), 132-139 at p.139
Hewitt, David (2008) ‘Mental Health: Impact of the 2007 Act on Children’ Childright 251, 16-18
Justice McFarlane (2011) ‘Mental Capacity: One Standard for all Ages’ Fam. Law 2011,
Keywood, Kirsty (2005) ‘Detaining Mentally Disordered Patients lacking Capacity: the Arbitrariness of Informal Detention and the Common Law Doctrine of Necessity’ Med. L. Rev. 2005, 13(1), 108-115
Parker, Camilla (2007) ‘Children and Young People and the Mental Health Act 2007’ J.M.H.L. 2007, Nov, 174-181
Webster, Peter (2003) ‘Reforming the Mental Health Act’ The Psychiatrist 27 364-366 at p.365
2.0 Government Reports
Law Commission Report no.231 Mental Incapacity (1995) HMSO
CM 5016-I (2000) Reforming the Mental Health Act White Paper part 1
Brazier, Margaret & Cave, Emma (2007) Medicine, Patients and the Law (4th ed) Penguin Books: London
Fortin, Jane (2009) Children’s Rights and the Developing Law 3rd ed Cambridge Uni Press: Cambridge
Rutter et al (2008) Rutter’s Child and Adolescent Psychiatry Blackwell Publishing: Massachussetts, Oxford, Victoria
Bolam v Friern Hospital Management Committee  1 WLR 582
F v West Berkshire Health Authority  2 All ER 545
G v E  EWHC 621 (Fam)
HL v UK (2005) 40 EHRR 32
Re B (A Minor) (Wardship: Sterilization)  2 All ER 206, HL
R v Bournewood Community and Mental Health Trust, ex p L  1 AC 458
R v. Kirklees Metropolitan Borough Council ex parte C  2 F.L.R. 187 and
Re C (Detention: Medical Treatment)  2 F.L.R 180
T v T  1 All ER 613
Mental Health Acts 1983, 2007
Mental Capacity Act 2005
Children Act 1989
European Convention on the Rights of the Child 1990
European Convention on Human Rights
Human Rights Act 1998