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The law relating to child health

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Abstract

The UK law relating to the health and development of children is extremely complicated, partly because its sources are so diverse. Additionally, the law in England and Wales is different from that in Northern Ireland and Scotland. In Northern Ireland, though historically the law comes from the same source, reforming legislation usually lags behind that introduced on the mainland. Scottish law, because its roots are quite different, often varies significantly from English law and this is particularly true in the context of child law.

Keywords

Anorexia Nervosa Local Authority Disable Child Child Protection General Medical Council 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes and References

  1. 1.
    Gillick v. West Norfolk Area Health Authority [1985] 3 All ER 402.Google Scholar
  2. 2.
    Report of the Inquiry into Child Abuse in Cleveland (1987) Cm 412. HMSO, London.Google Scholar
  3. 3.
    The need for liaison is also emphasised by Department of Health, Department of Education and Science, and the Welsh Office (1991) Working Together Under the Children Act 1989: A Guide to Arrangements for Interagency Cooperation for the Protection of Children from Abuse. HMSO, London. Hereinafter referred to as Working Together. Google Scholar
  4. 4.
    Section 1(1)(a) of the Abortion Act 1967 (as amended by s37 of the Human Fertilisation and Embryology Act 1990) authorises an abortion to be carried out up to the 24th week of pregnancy as long as it is performed by a recognised medical practitioner and two registered practitioners have formed the view in good faith that the continuation of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family. This provision is often liberally interpreted.Google Scholar
  5. 5.
    If the pregnancy has continued for more than 24 weeks, then according to s1(1)(b)(c) and (d) of the Abortion Act 1967 it can only be legally terminated if two registered practitioners have formed the view in good faith either: (b) that the termination is necessary to prevent grave permanent injury to her physical or mental health; or (c) that the continuance of the pregnancy would involve risk to the mother’s life greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.Google Scholar
  6. 6.
    Abortion Act 1967 s1(1)(d).Google Scholar
  7. 7.
    See Mason, J. K., McCall Smith, A. (1994) Law and Medical Ethics 4th edn, Butterworths, Oxford, esp. Chaps. 5 and 6.Google Scholar
  8. 8.
    Ibid Chapter 7.Google Scholar
  9. 9.
    As a result of further evidence emerging, the charge was changed from murder to attempted murder. R v Arthur, The Times, 6 Nov 1981.Google Scholar
  10. 10.
    Some claimed that the direction to the jury given by Farquharson J confused the legal situation: see inter alia Gunn, M. J. and Smith, J. C. [1985] Crim LR 705 and Kennedy, I. (1992) Treat Me Right: Essays in Medical Law and Ethics, Oxford University Press, Chapter 8.Google Scholar
  11. 11.
    Re B [1981] 1 WLR 1421 involved an infant suffering from Down’s syndrome, complicated by an intestinal obstruction which, though potentially fatal, could be remedied by surgery thereby giving her a 20–30-year life expectation. The child’s parents, on being informed of the child’s condition, refused consent to the surgery, being of the view that it would be kinder to let her die. On the intervention of the local authority, the child was made a ward of court and performance of the surgery was authorised and directed by the court as being in the child’s best interests. N.B. In 1981, before the enactment of the Children Act (hereinafter referred to as the CA) 1989, it was appropriate for the local authority to utilise the wardship procedure to obtain authorisation for treatment. After the implementation of the CA 1989, a local authority should apply instead to the High Court for a specific issue order under s8 of the 1989 Act [see note 19, below] or seek the aid of the High Court through its inherent jurisdiction.Google Scholar
  12. 12.
    See Taylor L. J. in Re J [1990] 3 All ER 930 at p. 943.Google Scholar
  13. 13.
    Thus in Re B (note 11, above), Templeman LJ suggested that the court had to decide ‘whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die, or whether the life of this child is still so imponderable that it would be wrong for her to be condemned to die’ at p. 1424. In Re J [1990] 3 All ER 930, Taylor LJ suggested that there were ‘extreme cases in which the court is entitled to say: “The life which this treatment would prolong would be so cruel as to be intolerable”’ at p. 944.Google Scholar
  14. 14.
    Re J [1992] 4 All ER 614.Google Scholar
  15. 15.
    See .Re C [1990] Fam 26, in which the court gave the hospital authority to give a 4-month-old massively handicapped and terminally ill baby, treatment which would relieve her suffering and allow her to die with dignity. See also Re J [1990] 3 All ER 930 at p. 943, Re J [1992] 4 All ER 614, and Re C [1996] 2 FLR 43.Google Scholar
  16. 16.
    Per Taylor LJ in Re J above [199 0] 3 All ER 927 at p. 943.Google Scholar
  17. 17.
    E.g. Re C [1996] 2 FLR 43.Google Scholar
  18. 18.
    The defence of necessity would apply in most emergencies, as discussed by Brazier, M. (1992) in Medicine, Patients and the Law, 2nd edn. Penguin Books, Harmondsworth, at pp. 90–92. See also Kennedy, I. and Grubb, A. (1994) Medical Law, Text and Materials, 2nd edn, Butterworths, London, at pp. 324–325 and more shortly by Montgomery, J. [1993] 5 JCL 117.Google Scholar
  19. 19.
    The correct procedure for obtaining court authorisation is for the applicant [i.e. the local authority or area health authority] either to apply under s8 CA 1989 for a specific issue order, having first obtained court leave to do so under s10 CA 1989, e.g. Re R [1993] 2 FLR 757 or to invoke the aid of the High Court’s inherent jurisdiction, e.g. Re O [1993] 2 FLR 149.Google Scholar
  20. 20.
    E.g. Re R [1993] above. See also Re O [1993] above — both cases involved opposition from parents who were Jehovah’s Witnesses to life-saving blood transfusion treatment for seriously ill babies. This is discussed further below.Google Scholar
  21. 21.
    Hereinafter referred to as SSDs or the SSD.Google Scholar
  22. 22.
    Section 17(10) of CA 1989 provides that a child shall be taken to be in need if ‘(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this [Act]; (b) his health or development is likely to be significantly impaired, or further impaired without the provision for him of such services; or (c) he is disabled’.Google Scholar
  23. 23.
    For the purposes of the Act, references to ‘family’ includes anyone with parental responsibility for the child and any other person with whom he has been living.Google Scholar
  24. 24.
    Section 17(11) CA 1989 mirrors the National Assistance Act 1948 definition of disability by defining a child as being disabled ‘if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed;...’Google Scholar
  25. 25.
    The range of family support services envisaged for families containing children in need is very wide. It includes the provision of day care [CA 1989 s18]; suitable accommodation if the child’s parents are prevented from providing it [CA 1989 s20] and a further range of services such as inter alia: occupational, social, cultural or recreational activities; home help; holiday provision; day centre facilities etc. [CA 1989 sched. 2].Google Scholar
  26. 26.
    See Department of Health (1991) The Children Act 1989 Guidance and Regulations Volume 6 Children With Disabilities, HMSO, London, esp. Chap. 4.Google Scholar
  27. 27.
    CA 1989 Sched. 2 para. 2.Google Scholar
  28. 28.
    See Education Act 1996 Part IV esp. ss312–323. N.B. A child is deemed to have ‘special educational needs’ if he or she ‘has a learning difficulty which calls for special educational provision to be made for him’ [Education Act 1996 s312(1)] and is deemed to have a ‘learning difficulty’ ‘if: (a) he has a significantly greater difficulty in learning than the majority of children of his age, (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority, or (c) he is under the age of five and is, or would be if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when over that age’. [Education Act 1996 s312(2)]. See generally N. Harris (1995) The Law Relating to Schools, Tolley Publishing, Croydon, Surrey, Chap. 9.Google Scholar
  29. 29.
    See Department of Health (1991) The Children Act 1989 Guidance and Regidations Volume 6, Children With Disabilities, HMSO, London, para. 4.2.Google Scholar
  30. 30.
    CA 1989 Sched. 2 para. 6.Google Scholar
  31. 31.
    Department of Health (1991) The Children Act 1989 Guidance and Regulations. Volume 2 Family Support, Day Care and Educational Provision for Young Children, HMSO, London, para. 2.18.Google Scholar
  32. 32.
    CA 1989 s27.Google Scholar
  33. 33.
    E.g. assessments under the Education Act 1996, the Disabled Persons Act 1986 and the Chronically Sick and Disabled Persons Act 1970 — see CA 1989 sched. 2 para. 3, as amended.Google Scholar
  34. 34.
    See Department of Health (1991) The Children Act 1989 Guidance and Regulations. Volume 6 Children With Disabilities. HMSO, London, para. 5.LGoogle Scholar
  35. 35.
    Ibid n. 34.Google Scholar
  36. 36.
    SSDs are obliged to do more preventive work than before. See CA 1989 sched. 2 para. 4(1) which requires every local authority to ‘take reasonable steps, through the provision of services ... to prevent children within their area suffering ill-treatment or neglect’.Google Scholar
  37. 37.
    CA 1989 Sched. 2 para. 6.Google Scholar
  38. 38.
    S47(1) CA 1989: ‘Where a local authority... have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the local authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.’Google Scholar
  39. 39.
    Although there is no attempt in the CA 1989 to define ‘significant’, ‘harm’ is defined by s 31(9) in a composite way. Thus for the purposes of the Act, ‘“harm” means ill-treatment or the impairment of health or development; “development” means physical, intellectual, emotional, social or behavioural development; “health” means physical or mental health; and “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical’.Google Scholar
  40. 40.
    Under s43(l) CA 1989 the local authority can apply for a court order called a child assessment order, the grounds being that the applicant has reasonable cause to suspect that the child is suffering or likely to suffer significant harm, that an assessment of the child’s health or development, or of the way in which he has been treated is required to enable the applicant to decide whether or not the child is suffering, or is likely to suffer, significant harm, and that without such an order it is unlikely that such an assessment will take place.Google Scholar
  41. 41.
    According to Re R [1993] 2 FLR 757, the applicant (i.e. in this case the district health authority) could apply under s8 Children Act 1989 for a specific issue order, authorising appropriate medical treatment, having first obtained court leave under s10 to apply for such an order: see discussed in more detail below.Google Scholar
  42. 42.
    Under Children and Young Persons Act 1933, section 1(2)(a).Google Scholar
  43. 43.
    Working Together. Google Scholar
  44. 44.
    Working Together at pp. 17–20 contains guidance specifically directed at health services.Google Scholar
  45. 45.
    E.g. poor working relations between the police and social workers in Cleveland had contributed to the mismanagement of the child sexual abuse investigations; see Report of the Inquiry into Child Abuse in Cleveland 1987. Cm. 412, Chap 6.Google Scholar
  46. 46.
    Department of Health, British Medical Association, and Conference of Medical Royal Colleges (1994) Child Protection: Medical Responsibilities, Guidance for Doctors working with Child Protection agencies. Addendum to Working Together Under the Children Act 1989, HMSO, London, at paras. 4.1–4.4.Google Scholar
  47. 47.
    Ibid, at para. 4.4.Google Scholar
  48. 48.
    Thanks are due to Professor Euan Ross, for providing this guidance.Google Scholar
  49. 49.
    Working Together stresses the importance of involving parents in all stages of child protection work and in general of including all parents at child protection conferences; see paras. 6.11–6.15.Google Scholar
  50. 50.
    Under s17(10) CA 1989, see note 22.Google Scholar
  51. 51.
    CA 1989 s47(4).Google Scholar
  52. 52.
    Unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so: CA 1989 s47(6). The grounds for obtaining an emergency protection order are broadly that the applicant has reasonable cause to believe that the child is likely to suffer significant harm or if the applicant is a local authority or the NSPCC that access to a child (who is already the subject of investigation because there are suspicions of abuse) is being unreasonably refused and there is reasonable cause to believe that access to that child is urgently required: CA 1989 s44(1)(b)(ii).Google Scholar
  53. 53.
    CA 1989 s48(9).Google Scholar
  54. 54.
    CA 1989 s45 contains provisions about the duration of an emergency protection order.Google Scholar
  55. 55.
    Although the CA 1989 contains no helpful definition of the term ‘parental responsibility’, broadly it means that whoever has it has the right to make all important decisions relating to the child’s upbringing.Google Scholar
  56. 56.
    CA 1989 s44(13). N.B. the SSD need allow only telephone or letter contact between child and parent if it considers such limited contact to be ‘reasonable’ in the circumstances.Google Scholar
  57. 57.
    See CA 1989 s44(6). The court must respect the refusal of a child to undergo such an assessment if it considers he is of sufficient understanding to make an informed decision: CA 1989 s44(7). Nevertheless, the local authority may use the High Court’s inherent jurisdiction to obtain authorisation for such an assessment against the wishes of a mature child: as in South Glamorgan County Council v W and B [1993] 1 FLR 574, see note 80 below.Google Scholar
  58. 58.
    CA 1989 s33.Google Scholar
  59. 59.
    CA 1989 s91(12).Google Scholar
  60. 60.
    CA 1989 s3L See definitions of ‘harm’ set out in note 39.Google Scholar
  61. 61.
    Such a list of ‘care grounds’ was employed under the previous legislation, the Children and Young Persons Act 1969, which was replaced by the Children Act 1989.Google Scholar
  62. 62.
    CA 1989 s1(1). When deciding this the court must consider a list of factors having a bearing on the child’s best interests, including the child’s own wishes: CA s1(3). The court is also required to bear in mind that delay in reaching a decision will prejudice the child’s welfare CA 1989 s. 1(2).Google Scholar
  63. 63.
    CA 1989 s1(5) which provides that ‘Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that to do so would be better for the child than making no order at all.’Google Scholar
  64. 64.
    i.e. the defence of necessity would apply in most emergencies: see note 18 above.Google Scholar
  65. 65.
    See Lord Donaldson MR in Re W [1992] 4 All ER 627 at p. 633.Google Scholar
  66. 66.
    i.e. a child too immature to be ‘Gillick competent’, see below.Google Scholar
  67. 67.
    If the parents oppose essential treatment, court authorisation should be sought, see notes 19 and 20 above.Google Scholar
  68. 68.
    Gillick v. West Norfolk Area Health Authority [1985] 3 All ER 402.Google Scholar
  69. 69.
    See Lord Scarman in Gillick [1985] above at p. 423 and comment by M. Brazier (1992) in Medicine, Patients and the Law, 2nd Edn. Penguin Books, Har-mondsworth, at p. 335.Google Scholar
  70. 70.
    E.g. Re R. [1991] 4 All ER 177: girl of 15 suffering from mental illness and in her lucid moments refused to consent to drug therapy. Court of Appeal held that she was not Gillick competent and authorised the treatment on her behalf. See also Re K, W and H [1993] 1 FLR 854 in which the court held that there had been no need for the hospital to seek the court’s authorisation before treating three mentally disturbed teenagers aged 15 with drug therapy, because their parents had already consented on their behalf.Google Scholar
  71. 71.
    See Lord Fraser in Gillick v. West Norfolk Area Health Authority [1985] above at p. 413.Google Scholar
  72. 72.
    See General Medical Council (1993) Professional Conduct and Discipline: Fitness to Practise, GMC, London, para. 84. This issue is discussed in Mason, J. K., McCall Smith, A. (1994) Law and Medical Ethics (4th Edn), Butterworths, Oxford, at pp. 178–180.Google Scholar
  73. 73.
    See Confidentiality and People under 16: Guidance issued jointly by the BMA, GMSC, HEA, Brook Advisory Centres, FPA and RCGP (1994).Google Scholar
  74. 74.
    See Confidentiality and People under 16: Guidance issued jointly by the BMA, GMSC, HEA, Brook Advisory Centres, FPA and RCGP (1994).Google Scholar
  75. 75.
    Lord Scarman said in Gillick v. West Norfolk Area Health Authority [1985] (see above) at p. 422 ‘... parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’.Google Scholar
  76. 76.
    E.g. see J. Eekelaar in [1986] NLJ 184.Google Scholar
  77. 77.
    Under s8 CA 1989 a child who has satisfied the court that he has sufficient understanding to make the application, can apply for a residence order determining where he is to live: incorrectly described by the media as ‘an order divorcing the child from his parents’.Google Scholar
  78. 78.
    It appears that there are some types of treatment that by virtue of their seriousness or irreversible nature, are beyond the scope of the child’s own capacity to consent and indeed are even beyond the scope of the parents’ capacity to consent, e.g. non-therapeutic sterilisation. See below.Google Scholar
  79. 79.
    E.g. Re E [1993] 1 FLR 386. Boy of nearly 16, ill with leukaemia, refused to agree to undergo treatment involving blood transfusions because he was a Jehovah’s Witness, like his parents. His condition deteriorated very rapidly. The hospital authority made him a ward of court and the court authorised them to override his objections on the sole basis that he was not Gillick competent. It was clear that Ward J felt that he would have been bound to adhere to the boy’s wishes had he considered him to be Gillick competent.Google Scholar
  80. 80.
    Thus the court is warned by s38(6) that if, in the course of interim proceedings for an interim supervision order or an interim care order, it makes a direction for the child to undergo a medical or psychiatric examination or other assessment, that if the child is of sufficient understanding to make an informed decision, he may refuse to submit to the assessment. Similarly, ss43(8) and 44(7) contain the same warning if the court makes a direction for an assessment to be carried out on a child in the context of an emergency protection order or a child assessment order. These rulings may be evaded by authorisation of the High Court under its inherent jurisdiction, e.g. in South Glamorgan County Council v W and B [1993] 1 FLR 574 a local authority gained the High Court’s authority under its inherent jurisdiction to go ahead with the psychiatric assessment and treatment of a Gillick competent girl of 15 against her will. The court did not consider that the direction in s38(6) CA 1989 hampered their powers under the inherent jurisdiction.Google Scholar
  81. 81.
    Re R. [1991] above see note 70 and Re W [1992] 4 All ER 627.Google Scholar
  82. 82.
    Re W [1992] 4 All ER 627.Google Scholar
  83. 83.
    It was an extremely controversial aspect of the decision in Re W that it related to teenagers aged 16 and over. It had formerly been assumed that s8(1) Family Law Reform Act 1969 gave a teenager complete autonomy over his own health care on his 16th birthday. S8(1) states that ‘the consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.’ Re W established that though a 16 year old might refuse treatment, consent could be obtained from the parents or the court instead.Google Scholar
  84. 84.
    Cf. Thorpe J who, when giving his judgement in Re K, W and H [1993] 1 FLR 854, could not accept the view of a committee set up by the Northampton Area Health Authority that the law in this field was ‘complex and confusing’; by contrast he considered it to be ‘perfectly clear’.Google Scholar
  85. 85.
    [1985] see note 68 above.Google Scholar
  86. 86.
    If the team were prepared to commence the treatment in the teeth of parental opposition, the parents could only stop them by seeking a court order prohibiting it (a prohibited steps order under s8 CA 1989) arguing that it was against the child’s best interests. Faced with opposition from vocal parents, most medical teams would prefer to seek court guidance before commencing any treatment.Google Scholar
  87. 87.
    See South Glamorgan County Council v W and B [1993] 1 FLR 574, see note 57. Google Scholar
  88. 88.
    In South Glamorgan County Council v W and B [1993] above, neither the 15-year-old girl nor her father was prepared to agree to the assessment required by the local authority and so the local authority instead obtained the court’s authorisation.Google Scholar
  89. 89.
    But there may then be a practical difficulty to overcome: that of treating an uncooperative teenager. Sometimes, this may be overcome by the use of sedating drugs, as in Re K, W and H [1993] 1 FLR 854.Google Scholar
  90. 90.
    As in Re K, W and H [1993] above.Google Scholar
  91. 91.
    It is assumed that the same restriction also applies to male sterilisations.Google Scholar
  92. 92.
    Re B [1987] 2 All ER 206. If the sterilisation is a necessary form of treatment for health problems, e.g. for menstrual management, the court’s authorisation is unnecessary: Re E [1991] 2 FLR 585. See discussion by J. Montgomery [1993] above at note 18 at p. 120.Google Scholar
  93. 93.
    See Neill LJ in Re F [1989] 2 FLR 376 at p. 404, discussed by J. Montgomery [1993] above, see note 18.Google Scholar
  94. 94.
    In Riverside Health Trust v Fox [1994] 1 FLR 614, the Court of Appeal (and the Family Division below) appeared to accept that the condition anorexia nervosa was a mental disorder within the terms of the Mental Health Act 1983 and that force-feeding of the patient (an adult in that case) could constitute medical treatment for that disorder if it was needed.Google Scholar

Further Reading

  1. Department of Health, Department of Education and Science, and the Welsh Office (1991) Working Together Under the Children Act 1989. A guide to arrangements for interagency cooperation for the protection of children from abuse. HMSO, London.Google Scholar
  2. Department of Health, British Medical Association, and Conference of the Medical Royal Colleges (1994) Child Protection, Medical Responsibilities, Guidance for Doctors working with Child Protection agencies, Addendum to Working Together Under the Children Act 1989. HMSO, London.Google Scholar
  3. Department of Health (1991) The Children Act 1989. Guidance and Regulations. Volume 6. Children With Disabilities. HMSO, London.Google Scholar
  4. Department of Health (1991) The Children Act 1989. Guidance and Regulations. Volume 2. Family Support Day Care and Educational Provision for Young Children. HMSO, London.Google Scholar
  5. Mason, J. K., McCall Smith, A. (1994) Law and Medical Ethics, 4th edn. Butterworths, Oxford.Google Scholar
  6. Kennedy, L (1992) Treat Me Right: Essays in Medical Law and Ethics, Oxford University Press.Google Scholar
  7. Harris, N. (1995) The Law Relating to Schools, Tolley Publishing, Croydon, Surrey.Google Scholar
  8. Brazier, M. (1992) Medicine, Patients and the Law, 2nd edn. Penguin Books, Harmondsworth.Google Scholar
  9. Kennedy, L and Grubb, A. (1994) Medical Law: Text and Materials, 2nd edn., Butterworths, London.Google Scholar

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