Examination of Witness (Questions 280
MONDAY 10 JUNE 2002
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.
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
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
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 receiveand it
is usually GPs who are in that situation about contraception or
walk-in team clinicswould 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.
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 easilyevery 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
The Committee suspended from 17.55 to 18.12
for a division in the House.
Chairman: I am going to call on 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.
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
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 isand probably the more important onethe 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
trustsnot all by any meanswould 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.
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
topchief executives and managersI 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
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
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
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.