4. Memorandum from Young Minds, National
Children's Mental Health Charity
HUMAN RIGHTS BREACHES IN CHILDREN'S MENTAL
1. RIGHT TO
HRA 1998, Schedule 1 Pt II article 2
UN Convention on the Rights of the Child, articles
28 and 29
Education provision in in-patient Child and
Adolescent Mental Health Service (CAMHS) units is patchy, Barriers
are lack of resources and a failure by public agencies to work
together. YoungMinds has proposed the creation, through the proposed
new Mental Health Bill, of a Guardian ad Litem for children
in this position, similar to that in the Children Act, to ensure
that needs such as the need for education are met.
The situation is particularly bad after age
16. This failure prejudices the child's chances of recovery, but
also fails to make the most of a golden opportunity to make up
for the educational handicap that often results from severe mental
Moreover, many children who are in school are
nevertheless unable to access education because of their mental
disorders. A child with severe anxiety or conduct problems for
example will be far less able to learn than a mentally healthy
child. Education may be being offered, but not in a way that ensures
that it is actually received. So if the government fails systematically
to identify and help those children who need help, then government
fails systematically to identify and help those children who need
help, then that is at least a failure to promote the right to
education and arguably violates that right.
2. UN CONVENTION
ARTICLE 37: DEPRIVATION
"Every child deprived of liberty . . .
shall be separated from adults unless it is considered in the
child's best interest not to do so . . . [and] shall have the
right to prompt access to legal and other appropriate assistance."
(a) Separation from adults
Because of the lack of in-patient CAMHS provision,
teenagers with mental health problems are often inappropriately
accommodated with adults, that is, in adult in-patient mental
health units. The National In-patient Child and Adolescent Psychiatry
Study commissioned by the DoH estimated that provision needs to
be increased by a third to meet this need. (Incidentally, mentally
ill adolescents are often alternatively accommodated in paediatric
wards, which is also often inappropriate because of the lack of
relevant skills among the staff. However, this does not violate
this right under the UN convention).
The underlying problems are a lack of government
funding for CAMHS, and the lack of a specific adolescent mental
Many young people in in-patient units are there
against their will. The problems could be dramatically reduced
if there were sufficient early intervention. Then people would
less often reach such a level of crisis that they have to be made
subject to compulsory powers.
(b) Prompt access to legal and other appropriate
There is a need for young people in this position
a Guardian ad Litem, as mentioned
above, to ensure that their needs were met rather than services
provided as convenient to the local agencies;
an advocate, as proposed by the Government,
the White Paper, Reforming the Mental Health Act; and
the nominated person proposed by
the Government would also contribute.
3. UN CONVENTION
The child who is capable of forming his or her
own views (shall have) 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 the age and maturity of the
(The child shall) be provided the opportunity
to be heard in any judicial and administrative proceedings affecting
the child, either directly, or through a representative or an
appropriate body . . . " (Article 12)
Currently a child does not have a right to an
advocate, although the Government is proposing to introduce one.
There will be further issues relating to the interpretation of
the rights and whether the Government proposals go far enough.
For example, does giving "due weight" to the child's
views mean that if the child is competent to understand the decision
and its consequences, the child's refusal would be respected in
all circumstances, with only the same exceptions as for an adult?
4. HUMAN RIGHTS
Often someone's mental health is allowed to
deteriorate when it could have been prevented. That can inhibit
a person's ability to enjoy their human rights in the normal way.
For example, there are not enough Child and Adolescent Mental
Health Services (CAMHS), and as a result a young person developing
a serious conduct disorder, depressive disorder, or psychosis
may not receive the services they require. Later, that young person
may be deprived of their liberty either through the Mental Health
Act or through criminal law. At that point that might be the best
thing to do, and may not violate the person's rights. Nevertheless
it might also interfere with the person's normal enjoyment of
rights to family life, education, freedom of movement, etc. Although
legal, human rights are not being enjoyed to the extent that they
might have been had the required services been available.
Taking someone into an in-patient unit or punishing
them for their crimes is not a violation of human rights. However,
human rights could be actively promoted by a Commission. The Commission
would actively report on Child and Adolescent Mental Health Services
(CAMHS) and mental health promotion by other means. For example,
support for parents who are having difficulty can prevent child
abuse. It could report on the contribution these services made
to the enjoyment of human rights.
5. ROLE OF
YoungMinds expertise and the role of a Commission
As a children's mental health charity it is
not clear how YoungMinds expertise can go beyond the relationship
between children's rights and their mental health. However, we
have been asked to express an opinion on the possible role of
Independent and inconvenient scrutiny
Currently, human rights violations and opportunities
to promote human rights are brought to public attention through
court cases, independent groups, and through the Government's
own unit investigating rights. The independent groups do not carry
anything like the weight that a statutory Commission would carry.
And since the Government's investigations are not independent,
political considerations might colour interpretations of rights.
For example, of whether the right to education in an in-patient
unit extends beyond 16, is affected by the political considerations
of cost and the priority of education. A Government might decide
that something was inconvenient or unpopular, and fail to investigate,
or come to a different conclusion from the conclusion a Commission
might come to. That decision would not be publicly scrutinised.
Any Commission would make those debated far
more politically live than the current mechanisms, because of
its authority and independence. Whether or not the Government
eventually decided to implement the Commission's recommendations,
a given issue would be far more publicly discussed and scrutinised.
In some cases decisions would be changed in favour of human rights
as a result of that scrutiny. Even if the Commission's recommendation
was eventually rejected, at least a Government would have to defend
the decision, not just against opposition politicians but against
the statutory Commission. Sometimes people's rights would be strengthened
as a result.
If a Commission could also take test cases,
human rights law would be more accessible to people who might
not take cases without that support. For example, YoungMinds has
considered taking test cases, but this would be a substantial
drain on our resources.
13 September 2002