Detention of children is needed at times

I am writing to thank Thomas et al ¹ for raising the issues of younger children and the authorisation of admission and treatment. The Mental Health Act 1983 is the only UK legislation that deals solely with the treatment of mental disorders and has a number of inbuilt safeguards – including the mental health tribunal, which was utilised in the case and discussed in the article – which are important factors when considering the ‘least restrictive’ principle. In many ways, the Mental Health Act 1983 is less restrictive than relying solely on a parent to authorise an admission, as there is a greater opportunity for the patient to have the detention independently reviewed in a timely fashion.

I wanted to raise a number of points. First, it is important to recognise that the law divides the under 18s into two groups: those under 16, and those aged 16 and 17. For the first group, when assessing the ability to make decisions, the case law of Gillick is used and those who have sufficient understanding and intelligence to make their own decisions are referred to as Gillick competent. ² For the second group, the Mental Capacity Act 2005 applies and they are referred to as having capacity, in the same way as adults. It is an important distinction, and still causes much confusion.

My second point risks confusing the issue of what parents can consent to further. Thomas et al state that ‘ … a parent may not lawfully detain or authorise the detention of a child’, which was the established wisdom, but this has been challenged in a recent case, named by some as Baby Bournewood. ³ In this case, Judge Keehan ruled that the hospital admission of a 15-year-old child with Asperger syndrome, attention-deficit hyperactivity disorder and Tourette syndrome who was under continuous supervision and control, and who would be prevented from leaving the hospital, did not constitute a deprivation of liberty and so could be authorised by someone with parental responsibility. This flies in the face of the Cheshire West case discussed in the article.

My last point concerns the discussion about the ‘doctrine of necessity’. It is also important to note that section 3(5) of the Children Act 1989 states that in an emergency or urgent situation a person who has care of the child but does not have parental responsibility may do ‘what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare.’