Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 280 - 300)



  280. Yes, that would be helpful.

  A. First of all, there is an important question about consent and the involvement of children in clinical decision-making. We have seen a number of examples over the years where clinical decisions are made over the heads of children, and children who are perfectly capable of expressing a view about what is being proposed have not been asked or consulted in any way.

Mr Woodward

  281. Like what for example?

  A. To give you an example from my own particular area of practice, which is neurology and child disability, I remember one child very well who was about six years old and the question was whether he should have his heel cord lengthened. He was a child with spasticity and I was working with a particular orthopaedic surgeon who was very sensitive to these sort of things. We did not have a long discussion with the mother first as we might have done a few years sooner. We had a discussion with the little boy himself about what would be the benefits, about what he might be able to do after this surgery which he could not do now, and he was quite excellent in his own insight into whether it should be done, what the benefits would be and why it would be better to put it off for a year because of his particular school situation. He was only just over six years old and he was not a particularly smart, well-tutored child and we were all quite taken aback at the extent of his insight. That is something that increasingly pediatricians do, but it is by no means universal. It is gradually spreading and there is a nurse, Gill Brook at Birmingham's Children's, who has done a lot of work on this. She has been instrumental in helping to spread the culture of involving children at this very specific clinical level.


  282. Has there been any practical support in encouraging this human rights culture to service providers in the Health Service by the Department of Health or the Human Rights Unit in the Lord Chancellor's Department or any other government sources?

  A. It has been fairly low visibility from government departments. Most of the drive that certainly I am aware of has come from the profession itself and Al Aynsley-Green, the National Director for Children's Services since the Secretary of State appointed him last July, has been very strong on this theme, and within the National Service Framework we have done quite a lot of work on how to involve children in decision-making and to consult them. Most of it is coming as a groundswell of opinion from the grass-roots, which is probably the best way to make these things happen.

Norman Baker

  283. I am very interested in what you are saying. I would like to explore how you weigh up the different pressures which are upon you or upon those making clinical decisions in particular. On the one hand you have got the legalistic framework which exists and to which of course you have to have regard. Then there is the view of the children themselves to which you have just referred. And then there is a third category which is the view of the parents, which may be entirely separate or contrary to the view of the children. How do you weigh those different aspects up and, in particular, how do you deal with a situation where an articulate child who understands his or her situation has a different view as to what should happen to his or her parents?

  A. It can be extremely difficult in some circumstances. I think the vast majority of people working with children are now reasonably aware of the legal framework both in law and in case law. The Gillick case and the judgments that flowed from that are known to every paediatrician in the land. There certainly are cases where there are conflicts. Of two examples, I suppose one is a fairly simple one. If you take a 12-year-old who is being offered an immunisation against rubella and who fully understands the reasons why this would be good for her and the parents are violently opposed to her receiving that immunisation, that is a very difficult issue to resolve. I do not think there is any standard textbook answer. You have to take each case on its merits. The much more difficult example is the whole business of child abuse where very often you find yourself in the position of having to be an advocate for the child, and the particularly difficult ones are not the ghastly Climbié-type cases but the borderline ones where you suspect that a child is being abused but are not sure and where you know that raising a suspicion that turns out to be wrong will itself be very damaging to the whole family. These are extremely difficult professional questions that one has to struggle with every week. The only solution at the moment that we see is that people have to be better trained to spend more time working on these kind of questions with our new generation of consultants. We need more inter-disciplinary working. We get excellent advice from our social work colleagues where that machinery exists. We are doing a lot of work at the moment within the College to try and improve people's competence in handling these very difficult problems.

  284. Can I ask you about a specific example of a case I am looking at without going into the details of individuals. Essentially the situation is there is an allegation that a 22-year-old man is having sex with a 12-year-old in my constituency. The parents are livid and want the full force of the law brought to bear on that situation. The child herself appears to be consenting and maintaining the position that she is capable of making her own decisions and the law of course says that that relationship, if it is taking place, is statutory rape which has a sentence of life imprisonment as a maximum. If the child in that situation wants contraceptive advice and contraception, how do you we deal with that terribly difficult situation?

  A. The advice that GPs receive—and it is usually GPs who are in that situation about contraception or walk-in team clinics—would be that as far as the young person herself is concerned you would have to make a judgment as her doctor about the right course of action. If your judgment was that she was making a mature and considered decision in coming to consult you and was asking for contraceptive advice, I think most doctors would provide that advice and treat that in confidence. If their judgment was that this girl was being manipulated and used then the terms used include "some secrets are too big to keep". That might be the sort of language you would use to someone you treat as a child. In the case you describe I suspect most people would feel that as far as their behaviour as a doctor was concerned, they would probably give her the advice that she was requesting because they would consider her very competent by the very act of having come to seek advice on contraception and they would consider that was how she was behaving. They would probably then ring their Medical Defence Union and say, "Help, have I done the right thing?" I think that is probably what most of them would do.

Lord Parekh

  285. I wanted to probe you a little on the question of the powers that a Children's Rights Commissioner needs to have. If our health care system is to make a significant difference to children and take account of their rights, what sort of powers would the Commissioner need to have?

  A. I think that probably the Commissioner has to be able to be proactive. In other words, I think there are some areas where it is clear that it is not a question of trying to change legislation or challenge legislation or act on legislation but to indicate that there is a deficiency and that there is an absence of necessary action. So I think the first thing that would be required would be the right to challenge inactivity. If I could give you one very important example, child and adolescent mental health services in this country, are a total disgrace. There are many places where the waiting list is 18 months or more. If that were an adult service there would be a public outcry but this is just accepted as being the situation. That is the sort of thing where I believe a Commissioner ought to be proactive and should not just wait for things to happen. I think the other enormously valuable thing a Commissioner could do would be to child-proof legislation, to inspect legislation that was at draft stage and look at it through the eyes of the child and think about what its implications are. Examples are often the most powerful thing. In the press over the last few months there has been a whole lot of stuff about speed limits of cars and about speed cameras and in this country we treat beating cops and not getting caught for speeding as some kind of a sport. It is often the children that get knocked down. I mentioned that one of my interests was child neurology and disability. I have been responsible for the care of more children with serious brain injuries as a result of car accidents than I care to remember. This notion that the motorist is king is something that I believe a Children's Commissioner would challenge very powerfully. He would point out that kids have got nowhere to play. They used to play in the street. Now their parents will not even let them cross the road to go to the park because of speeding traffic. There is a child perspective on this whole question of traffic where a Children's Commissioner could be helpful. I could give you lots of other examples but that is one about which I feel particularly strongly.

  286. Following on from what you were saying in response to my colleague Norman Baker, would you allow the Commissioner to have the power to be invasive, to make enquiries about what was going on in relations within families or outside or to make enquiries about things one might regard as private? Does a proactive attitude include making enquiries when you suspect that something might be going on in relation to a child or visiting families and making enquiries? Would you think the Commissioner should have that kind of power?

  A. You would have to make a distinction between the investigation of individual cases because in the case that was described just now clearly there are several bodies that already have statutory powers to investigate that situation, so I cannot see that the Commissioner would need initially to have those sort of powers. What the Commissioner might need to be able to do is consider such cases and draw generalisable lessons or issues from those cases. I cannot see that a Commissioner could or should second-guess decisions made by local social services or the NSPCC, which probably would be the bodies charged with the duty to take up that kind of case. If a major issue perhaps akin to the Gillick-type case emerged from such a discussion, a Commissioner might well be proactive in suggesting that legislation ought to be re-visited as it was no longer appropriate to the times.

  287. That brings me to the last question I wanted to raise, which is given the kind of powers that you think the Commissioner should have, how would it fit in with the existing mechanisms for dealing with cases of this kind?

  A. I think that would be quite a challenge in drawing up the framework as to how this would operate. There would have to be some restrictions because we can see what will happen very easily—every case where a family (or a profession come to that) disagreed with a decision reached by the local social services or the local child protection conference if it was a child abuse case, would be challenged and brought to the Commissioner and it would create an impossible workload and one would have to regulate that by very carefully structuring what the Commissioner should and should not do. I know the suggestion has been made by the England Government that we should see how the Commissioner in Wales works out. I have heard Peter Clarke speak recently at a conference in Cardiff. It is true it is early days but I understand that mechanisms are being developed which make it possible for the Commissioner to handle this work without having a whole huge structure which would be second-guessing the statutory bodies. I am sure it would be possible but it would need a lot of care and preparation.

  The Committee suspended from 17.55 to 18.12 for a division in the House.

  Chairman: I am going to call on Baroness Whitaker.

Baroness Whitaker

  288. I wanted to preface my main question with a follow-up on child accidents, which you mentioned. It is my impression that the United Kingdom has amongst the lowest accident rate for adults and this is often a matter of pride. Am I right that the UK figures within the European context for child pedestrian casualties are very far indeed from among the lowest in Europe?

  A. I have not got the exact figures in my head but I am sure that is correct. It is also the case that the most common cause of death in children is accidents and among those accidents pedestrian deaths are the most common. Although people worry about their children getting cancer and meningitis what they should be worrying about is death from accidents because that is the commonest cause of death between one and 14.

  289. Am I right to suggest that it is due to the behaviour of other adults on the road who do not behave in such a way that the child's right to life is respected?

  A. That is absolutely right. Certainly there are two issues. One is that speed limits are often inappropriate for the areas where children are. The second is that even where there is a speed limit people take no notice of them.

Mr Woodward

  290. I am someone who believes in a Children's Rights Commissioner, so in a sense I am asking a devil's advocate question. Some people might say that they absolutely agree with your statistics and views on this issue but they might say we do not need a Children's Rights Commissioners to do this, we just need someone responsible that understands speed limits and speed controls. What difference would a Children's Rights Commissioner make? Rather than add another quango to the pot, would it not be better for you and others to be more effective at lobbying the Department of Transport? Why do we need a Children's Rights Commissioner to do this?

  A. It is a fair question. Those countries where they have a well-established Children's Rights Commissioner as a matter of right scrutinise all the new draft legislation.

  291. Do they have lower deaths, for example, as a result to do with driving?

  A. They do, yes, but I think to try and make direct cause and effect is probably extremely difficult. I think it would be a very valuable advance if all new proposed legislation were looked at from the perspective of what does this mean for children and what does this mean for families. Certainly that would be one of the benefits. In addition to looking at legislation, when we had that rather one-sided public debate in the press over the last 12 months, firstly about speed limit and then about hidden cameras, where was the public voice speaking on behalf of children? There was nobody. There were people speaking on behalf of the motor industry behind the scenes no doubt, there were plenty of people speaking on behalf of the motoring organisations and adults, but where was the public voice talking from the child's perspective?

  292. So it is a voice, whether it is about speeding, whether it is about consent issues, whether it is about children's mental health, and you think in the context of health that voice is critically missing to represent children when the government is producing legislation and reviewing legislation?

  A. Legislation and policy.

Baroness Perry of Southwark

  293. We know about the development of the National Service Framework for the Health Service and the requirement that it contains that primary care trusts appoint a dedicated Children's Commissioner to the boards of those primary care trusts. Do you think that is enough or do you think there will still be a role for a national Children's Rights Commissioner for protecting children's rights?

  A. They are two very different issues. The national voice would have the sort of functions that we have already touched on and that is an overview of legislation, policy and politically hot issues. I think that is a totally different function. Within the PCT and within health provider trusts the expectation from the Secretary of State's response to Bristol is indeed, as you say, that there should be someone there speaking for children. I have to say that while some trusts we know are taking that seriously, for others it is very much lip service, and to quote a discussion I had earlier this afternoon about a particular children's service in Oxford, the PCT's view was this is a small volume service, there is not a great many children with this particular condition, we are not interested in having this service. The service fell apart. That is the kind of attitude that we are meeting in quite a number of PCTs because children are not high up on the medico-political agenda. Hopefully that will change with the NSF.

  294. Might that not be the same even if there were a National Children's Commissioner for looking at children's rights? Would that really shift the attitude of people such as you describe at the local level? If you think there is a question mark over that, what kind of independent watchdog would you recommend to make sure that it is taken seriously and that that culture change we were talking about earlier does take place?

  A. There are two possible responses to that. One is—and probably the more important one—the mere fact of having a Children's Commissioner puts children's issues much more on the map because all other groups can indicate their displeasure by voting and children cannot. That reason alone is why children need a national voice. At a more specific level, one possible approach to this PCT attitude we are meeting in some trusts—not all by any means—would be for this to be taken up by the Children's Commissioner. I was not really suggesting that that is likely to be the main route. This will be dealt with I hope through the usual performance management pathways which is what we expect strategic health authorities to be doing. I would not imagine that one is going to run to the Commissioner every time we want to complain about a PCT. In terms of the overall culture, the overall attitude to children, that is where the change will be important.

Baroness Whitaker

  295. You gave some interesting examples of health personnel taking account of children's issues, although the rubella case you quoted indicates that the rights of the child were not necessarily thought of as a primary consideration and the rights of the parent had to be balanced. Do you think that Health Service providers know that listening to children is a human rights issue?

  A. If by providers you mean the people at the top—chief executives and managers—I would say it is probably very patchy. If you are talking about the health professionals, those whose main interest is children, then I would think most of them would have some awareness, but it would probably be very, very variable and very patchy. Most people would approach these things in a more pragmatic way. In the rubella case the issue is not merely one of rights but if you chose to defend the child's rights to make her own decision you might at the same time be creating a furore in the family and that might damage the child in the longer term. It would be seen as a professional judgment issue I think rather than specifically a rights issue, but there is no doubt that the children's rights concepts are being woven much more into our training programmes. As I say, we are doing this in collaboration with our American colleagues who are of a similar mind. They have a very different legislative framework and they dislike the concept of rights apparently even more than our Government.

Mr Woodward

  296. Professor Hall, it is important to put this issue in context, first of all. Very clearly one is not talking about most treatments, one is talking about a minority of treatments where things go wrong for children and when they do go wrong and when it is the result of poor treatment or abusive treatment, do you think the system adequately represents children at the moment?

  A. That is a difficult question. I would guess for children who are excluded in all the various ways we know about the system is probably very inadequate for them.

  297. That is the mental health/consent issues you mentioned earlier. Any others?

  A. For example, if a child was being looked after and there was a case where the natural parents might have wished to pursue litigation on behalf of the child, it is probably much less likely that would happen if the child was looked after, particularly if they were moving through a series of foster placements. I think there is a bigger issue here. I have done quite a lot of work in this particular field and the whole process of bringing actions on behalf of children who have been injured by the health care system in any way is a complete lottery. The notion that wise, scientifically-based judgments are made is unfortunately not the case. It is nobody's fault, it is the adversarial system and you go into the lottery and win £3 million or nothing on two minutes' difference on the timing of a diagnosis of meningitis or the point at which child abuse was diagnosed, and it is not at all a sensible system. It certainly is grossly inequitable. Looking for an alternative has taxed many people and is being reconsidered at the moment in the CMO (?) Group. There are undoubtedly better ways that it can be tackled but I suspect they are much too radical for most governments to take on.

  298. Would you, for example, see the Children's Rights Commissioner as the advocate for tackling the issue of Alder Hey and parts of children who died being used for medical research? Would you see that as an issue which they might take up?

  A. One would be looking for cases where there was an issue of fundamental generic importance because once again otherwise the Commissioner will become caught up in the—

  299. They should not be an ombudsman effectively?

  A. I think probably not. That is a different role. The ombudsman is there to deal with cases where due process has been gone through but not in appropriate ways. Things like the Alder Hey question opened up a whole lot of very fundamental questions about the rights of children and families which certainly shook the profession to its core. I am not sure how much a Children's Rights Commissioner would have added to that. Where the Children's Rights Commissioner might have picked up a story is the net result of all this has been a catastrophic fall in children's pathology services and that is a children's right which has been totally put off in all this business and the net result of that is increasing difficulty in getting accurate tissue diagnosis for cancer, for example. So a Commissioner might well be alert to some of the peripheral issues or unexpected issues and might bring a more balanced, more objective view to some of these questions. One would not want to end up with a portfolio so huge that this person could not do their job.

  300. I can see in advocating a Children's Commissioner a number of areas where some very difficult conflicts of interest could arise, for example the difficulty of resolving the issue of consent where, for example, the child might want to delay treatment and the parents might want it or the parents might want it but the doctors do not believe it is in the child's interests. Thinking about your issue of the Commissioner only taking up generic issues, nonetheless, is there a difficulty here because when you start to push what exactly a Children's Rights Commissioner might look at in the area of the Health Service you could quickly become bogged down in some very fundamental issues of clinical judgment or indeed the whole idea of in loco parentis could be effectively transferred to the Health Service as to whether the parent has a better idea of consent than their child. How would you resolve those sorts of issues? Would you expect it is something the Children's Rights Commissioner would do or would they have to defer to another body to make that decision?

  A. I do not think I would see a Children's Rights Commissioner dealing with those sorts of questions because that is really akin to the issue of the 12-year-old girl and the sexual relationship with a 22-year-old which Mr Baker asked me about. Of course there was such a case as you are thinking about not very long ago where a 15-year-old girl did not wish to have a heart lung transplant and her judgment was overruled in the court. I think most clinicians faced with these kinds of agonising decisions will turn to the courts and the judge undoubtedly in those sort of cases will take account of human rights legislation and the UN Convention as well as case law. What I think a Commissioner might well do is pick up such cases particularly if there was a series of such cases and he might then begin to try to generate a public discussion on the matter and try to initiate discussions about possible legislation within government. So that is what I mean by picking up general themes. I do not see a need for them to be involved in an individual case in that way unless some fundamental new issue has arisen which should be taken up centrally. In general the courts have dealt with these cases and on the whole, I have to say, dealt with them with considerable wisdom. I would not see a need for the Commissioner to necessarily become involved there. There will be general, underlying themes where society wishes to change its attitude on some of these questions.

  Chairman: Thank you very much for appearing before us. It has been very thought-provoking. Often examples can be very telling and I am sure many of the examples you have given us today have given us considerable food for thought.

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