Hi
I’m looking for some guidance/policy in respect of the above. The MDT/parents are all in agreement that the only way to administer the treatment the child needs is by covert means. All other options have been exhausted.
Pharmacy are in agreement with the plan.
Just wondering whether the plan can proceed in the child’s best interest or whether a court application is also needed.
The guidance I can see appears to be aimed at adults - with some cases put forward before the courts for authorisation.
If there is consensus among all Health professionals involved and including the family, it can be proceed without a court authorisation.
Application to the court is required only where there is no consensus.
I am not a lawyer, so here are thoughts from a children’s social worker for discussion:
I would start from the basic principle that the welfare of the child is paramount.
The child is aged 11, so even without any cognitive impairment or mental health condition, it is a moot point whether, on purely developmental considerations, he would be competent to consent to treatment under the Fraser guidelines. The test is similar to the MCA, i.e. whether the young person can understand the information provided, weigh up the risks vs benefits, and make a balanced decision. The default if the child is not competent is that the person(s) with parental responsibility make the decision.
In this case, it is reported that parents and health professionals agree that the intervention is necessary. Presumably, if the relevant adults disagreed, it would be possible to seek a specific issue order under s* Children Act 1989. Otherwise, the " no order principle" states that the Court should only intervene when absolutely necessary.
In the case of an adult, covert medication should only be given following NICE guidelines after a mental capacity assessment and best interests decision. [Giving medicines covertly | Quick guides to social care topics | Social care | NICE Communities | About | NICE ] However, in normal circumstances, an adult would be considered competent unless and until the converse is proven - s1 MCA2005. I would argue that in the case of a child, the converse is true - to meet the Fraser test, the clinician needs to establish that a young person is competent. Otherwise, the default is to look to the adult with parental responsibility.
Is the child Gillick Competent to make his/her own decision? Work from the perspective that unless shown/demonstrated regardless of the age that the individual should be given the opportunity make their own decision/s.
Bring the GP onboard besides the pharmacist
Any covert medication given has to have a review period attached to it.
The impact of “Gillick” is discussed in Black,D., Harris-Hendriks,J., and Wolkind, S Child Psychiatry and the Law. (1989) I have the third edition 1998, but there may be a more recent edition in print. It was published by Gaskell on behalf of the Royal College of Psychiatrists.
The BMA also has a “toolkit” here : Children and young people ethics toolkit which includes a discussion on “Gillick” and a section on mental health intervention.
Hopefully a lawyer can give us case law where the Gillick/Fraser guidelines have been upheld in fields other than sexual health; all I can say is that as a former NHS manager and current children’s social worker, all the guidance I have read refers to the principles set out by Scarman LJ in the Gillick case as having far wider general application beyond the issues of sexual health advice covered in the original application made by Victoria Gillick. This appears to be the view of the GMC, BMA and the Department of Health.
From a pragmatic point of view, I imagine most parents have at some time ‘disguised’ medication, particularly with much younger children. The problem appears to be where one has a “tweenager” who is not fully competent but who clearly has some right to be consulted regarding his treatment. Ideally, the young person would “assent” to treatment even if he could not give formal consent. Compare Article 12 of the UN Convention on the Rights of the Child, which again has “sufficient understanding” as a relevant consideration. This is discussed in detail here: https://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf