Joint Committee On Human Rights Appendices to the Minutes of Evidence


4. Memorandum from Young Minds, National Children's Mental Health Charity

HUMAN RIGHTS BREACHES IN CHILDREN'S MENTAL HEALTH

1.  RIGHT TO EDUCATION

  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 health problems.

  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 OF LIBERTY

  "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 health service.

  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 assistance

  There is a need for young people in this position to have:

    —  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 ARTICLE 12—RIGHT TO HAVE VIEWS GIVEN DUE WEIGHT

  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 child.

  (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 PROMOTION THROUGH MENTAL HEALTH SERVICES

  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 ANY COMMISSION

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 the Commission.

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.

Test cases

  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


 
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