Written evidence submitted by the Children’s Commissioner’s office (MHB0089)

Background and context

The first and most important task of the Children’s Commissioner for England, Dame Rachel De Souza DBE, is to listen to the voices of children, particularly those who don’t always have their voices heard. To understand what matters most to them, and what help they need to have good childhoods and to grow up to be successful adults. That’s why last year the Children’s Commissioner launched The Big Ask, the largest ever survey of children. Over half a million children responded, filling out the survey and sending in their thoughts and ideas about their lives today and their aspirations and dreams for the future.

The Children’s Commissioner is committed to delivering for the most vulnerable children in England, including those living in secure estates and those in inpatient mental health wards. 

The Big Ask found that most children aged 9-17 (80%) were happy or okay with their mental health. But 20% were unhappy, making it the top issue for children today. That is why the Commissioner has chosen Health and Wellbeing as one of her strategic priorities. The other strategic priorities are defined and outlined under seven ‘pillars’ of work in the office’s business plan.[1] 

As part of the Health and Wellbeing pillar, the Children’s Commissioner and her team regularly speak to children with experience of different stages of mental health care, from early intervention in schools, to specialist services and inpatient care. This year, she has spoken to around 300 children struggling to attend school, many because of mental health problems. In July 2022, the Commissioner outlined her ambitions for early mental health support, with the ultimate goal of reaching and supporting children wherever they are. Twenty-six thousand responses to The Big Ask were from children in receipt of mental health support. The office also conducted visits to children in mental health hospitals as part of the qualitative research for The Big Ask. It is imperative children struggling with mental health problems are supported wherever they are, whether that is in school or in inpatient settings.

Introduction

The Children’s Commissioner welcomes the publication of the draft Mental Health Bill, which has the potential to produce positive change for children detained under the Mental Health Act and those admitted to inpatient mental health settings.

The Children’s Commissioner believes that no child should grow up in an institution, and therefore welcomes the ambition to reduce the number of children detained under the Act. For the ambition to be achieved, more is needed to ensure every child receives the kind of holistic care that best meets their needs.

The Children’s Commissioner wants to ensure that the needs of children are considered in every element of the reform. While the draft Bill makes considerable progress in improving care for adults detained under the Act, the office believes that it could be strengthened by further consideration of how the proposed changes could be improved when applied to children. For example, the draft Bill introduces a new ‘nominated person’ to replace the formally used ‘nearest relative’, allowing a patient to choose someone to advocate for them and make choices about their care, more detail is needed to show how under 18 will choose their nominated person while also being kept safe. Consideration also needs to be given to the care of children in inpatient care on an informal basis, and how changes that benefit formally detained children could also be applied to those admitted informally.

The Children’s Commissioner believes the draft Bill could be improved by considering its impact on families. This month, the Children’s Commissioner published the first part of her ‘Family Review’, which paints a unique picture of family life today, and shows how it provides a protective effect for children. Legislative changes which impact adult patients – parents, aunts and uncles, grandparents – will also have an impact on children within the family. Conversely, where children are being treated under the Act, it is vital that the legislation helps to foster strong and positive family relationships rather than undermine them.

The Children’s Commissioner urges the Committee to keep children and families in mind throughout their scrutiny of the draft Bill. This submission suggests ways to ensure children’s needs, safety and wellbeing are consistently considered in decision making for adult and child patients, and so all children receive the most appropriate care. This might include a commitment to providing adequate family visiting hours to all young patients, or a parent’s admission acting as a trigger for further support (such as a young carer assessment). With these changes, the Bill can be improved to support the children who need it most

Providing children with the most appropriate care

The Children's Commissioner’s office believes that no child should grow up in an institution, but that wherever possible they should be supported to live with their families. The draft Bill presents an opportunity to deliver this change for children – to ensure children with learning disabilities and autism are protected, and to guide Local Authorities and Integrated Care Boards on where integration is possible to create community alternatives to inpatient care. Too often, the Commissioner has heard through her ‘Help at Hand’ service, how some children end up ‘locked away’ in settings that are not designed to care for them (such as hotels or rented apartments) as there is no alternative provision that can be found.

The Commissioner understands that sometimes inpatient admission will be necessary. When this happens, it is essential that the ward can meet the child’s needs and provide appropriate care. The Commissioner would like to see certain protections in the Bill to ensure this is always the case.

Reducing inappropriate placements: The Children’s Commissioner’s helpline, ‘Help at Hand’, often speaks to young people with high levels of need who have been detained in inappropriate settings, such as general hospital wards, adult wards, or in inpatient care far away from home.[2]   Some children with highly specialised needs have been placed on general wards with temporary agency staff, to the detriment of their care, education and health outcomes.

In one case, Help at Hand was contacted by a parent of a 15-year-old girl with an eating disorder who had been placed on a general paediatric ward, as there were no low or medium secure beds in her area. The hospital used agency staff to administer the feeds to the child. Her parent raised concerns with Help at Hand about the agency staff practice after several restraints had taken place, which had had a detrimental impact on the child’s mental health.

The Children’s Commissioner advocates for National Health Service England (NHSE) to have a legal duty to review inpatient capacity – including both workforce and bed capacity - on an annual basis, and to publish this review. 

In addition, the Bill should make clear that under 16-year-olds must not be placed on adult wards. It should require that any placement of a child out of their area or on an adult ward should be reported to the CQC within 24 hours, alongside the reason for the placement. The Local Authority should also be notified.

Community care for all children: The Children’s Commissioner welcomes that the draft Bill aims to make progress in protecting children who have a learning disability or autism from being detained in hospital.

However, the Bill needs greater clarity on how sufficient community support or appropriate placements will be provided. The Children’s Commissioner wants to see this for all children, not just those with a learning disability or autism.

Without this, children may simply be detained in hospital under other legislation – such as the Mental Capacity Act 2005 – or in Children’s Social Care in settings without specialist staff.  The Children’s Commissioner is aware of many cases where appropriate alternative care cannot be found and is keen that the Bill address this issue.

For example, one fifteen-year-old boy in contact with Help at Hand was sectioned under the Mental Health Act and spent time on a number of general paediatric and adult wards before moving to an inpatient adolescent unit. In all these settings, the boy was highly distressed and absconded several times, with staff and security unable to manage his behaviour effectively or keep him safe. The Local Authority initiated care proceedings and the adolescent unit discharged him, despite children’s social care having no suitable placement for him. Ultimately, the only option available was a property rented by the local authority with 24-hour nursing staff and a deprivation of liberty authorisation from the court. This was intended as a short-term measure, but he was still there one year later, with a nationwide search for suitable provision having been unsuccessful, due to his complex needs and perceived risk.

Similarly, one 18-year-old girl told the office recently that she had been placed in social care setting where she did not get the right mental health support: “I was in a (children’s home) placement for self-harm, but got asked to leave as they couldn’t handle me. I then went to home that just wasn’t very good, and I think that’s why I ended up here”. These children describe high levels of distress when they have been detained in a place that cannot meet their needs.

Children themselves are aware that improved community support could prevent inpatient admissions. For example one 17 year old girl told the office: “With eating issues, outreach only came once a day, which still leaves five meals or snacks for parents to supervise. You want your parents to be your mum and dad, not your therapist. Parents should be able to be parents and not carers. More outreach would mean fewer hospital admissions”.[3]

The Bill could outline what the expectations will be on Integrated Care Boards and Local Authorities to work together to provide alternatives to inpatient hospital care, and where these children, who will no longer be detained, will receive support. This might be through community support, or through the design of alternative placements, jointly funded by health and social care.

The office will be carrying out work to improve the co-operation around children who fall between mental health and social care settings, where there is a lack of professional agreement about where they should be cared for.

Safeguarding assessments for nominated persons: Clauses 21, 22 and 23 introduce a new ‘nominated person’ to replace the formally used ‘nearest relative’, allowing a patient to choose someone to advocate for them and make choices about their care. This person can play a vital role in ensuring that the care a child receives is appropriate for them. More detail is needed to ensure children under 18 are able to choose their nominated person while also being kept safe. This is particularly important when they are in the care of the Local Authority (under either Section 31 or Section 20 of the Children Act 1989) , on a Child Protection plan or if they are a Child in Need. The Children’s Commissioner recommends adding a duty to the Bill requiring safeguarding assessments to be taken into consideration for the ‘nominated person’ of those under 18. This should apply for both formally and informally admitted children.

Protections for informal patients

It is the Children’s Commissioner’s priority that no child is invisible to the system, and that every child’s voice is heard when designing their care and treatment.

Research has shown that patients admitted informally, or children who are placed in a mental health inpatient setting with only their parents’ consent, do not show up in formal statistics. This means that we do not know exactly how many children are admitted informally. The office is working hard to ensure all children are identified and accounted for, whether this is working with Local Authorities to find children missing from school, or by advocating for improved data recording capabilities across the country in education, health and social care.

The Commissioner recognises the opportunity this Bill presents to recognise informally admitted children and offer them the protections and the voice they deserve.

Research has shown that that many children who are admitted with parental consent ‘feel sectioned’ even though technically they are not legally detained.  This is because some patients under 16, admitted informally, have not consented to their own admission – they were admitted with their parents’ consent. As one teenage girl explained: “My parents just made the decision, I was 15 then, so I didn’t really get much of a say”[4] 

This leaves these children in a uniquely vulnerable position, as they are without the protections of formally detained patients, while not being there on the basis of their own consent.  The office would like the protections that have been introduced for detained patients extended to all children who have been informally admitted, on the same statutory basis. That includes:

Access to advocacy: Clause 34 outlines that informal patients (or patients who have not been sectioned) should now be able to access services from Independent Mental Health Advocates (IMHA). The Bill should clarify that informally admitted patients should receive independent advocacy by on an ‘opt-out’ basis, meaning they do not have to request an advocate, but will receive one by default.

Research shows how children value advocacy and can feel it gives them options to challenge decisions if they need to: “I met with the advocate a few days ago, she introduced herself, she’s a really lovely lady, she explained what her role is and what she does for people here and if I had anything that I wanted to talk to her about. It’s really nice to know that you have access to that if you have a complaint or anything” – Teenage girl[5] 

Care and Treatment Plans: the office welcomes the introduction of statutory Care and Treatment Plans for both detained and informal patients, and would like this to include the duty to provide these plans for informal patients.

More broadly, the office would like any safeguards for children who have been detained can also apply to children who have been admitted informally.

Competency assessment: the degree to which children will be able to have a say in the decisions made about them will rely on whether they are judged to have the capacity or competence to make those decisions. For children aged 16 and 17, they are assumed to have capacity unless an assessment under the Mental Capacity Act shows that they do not. But for children under 16, they can only make some of these decisions if they are deemed to be ‘Gillick competent’. Yet there is no statutory framework for assessing whether a child under 16 is Gillick competent, creating a vacuum of guidance for professionals.  This is particularly important when it comes to decisions about being admitted ‘informally’, and whether parents can consent on behalf of their child or not. The office would therefore like to see a statutory test of competence for children under 16 included.

Data collection: A lack of data or inconsistent data makes it difficult to track and implement improvements to services, and harder to evaluate if services are fair, equal and transparent. This is particularly important when it comes to informal patients. When children are placed with their parent’s consent, there is no clear record of them in formal statistics.[6]  This can hinder effective scrutiny of their access to appropriate care or advocacy arrangements.

The Bill should require improvements to data recording and reporting across the sector to ensure we are delivering the best services for children. This should at a minimum include data on informal admissions and ward types.

Additional Support for the Child

The Children’s Commissioner believes that any moment of external intervention, such as a child’s first school exclusion, or the first engagement with external services, should be a trigger for that child to receive further support. It should provide an opportunity to consider the child’s needs holistically, across health, social care and education.

Inpatient admission is one of the surest signs that a child and their family needs additional support – especially if that admission is the first time the child and family have had contact with external services. This Bill can help ensure that no child or family is left to navigate the system on their own, and that the children who need the most help, are identified and supported quickly.

Inpatient admission as a trigger for further support: The office believes that inpatient admission is a sign that a child or family may need additional support. When children are placed in a hospital or residential setting for more than three months, the Local Authority are required to be notified, and visits should be undertaken. The Government have stated that the Code of Practice will set out that Local Authorities will be notified if a child is placed for over 28 days. It is unclear how these requirements will align. The Children’s Commissioner believes that Local Authorities should be notified whenever a child is admitted to inpatient care, no matter the duration, and that they should be required to carry out further assessment of their needs including:

Education, Health and Care plans: Every child in an inpatient mental health setting should have an Education, Health and Care plan, given the high level of need that they have. However, the Children’s Commissioner’s Help at Hand team are aware of cases where these are not in place.  Inpatient admissions of children should therefore prompt an Education, Health and Care plan assessment.

Assessment under Section 17 of the Children Act:  Guidance should clarify that alongside visits from a social worker, a full assessment under Section 17 should be carried out to understand what support from children’s social care may be required.

Commitment to supporting family

As part of Inclusive Britain – the Government’s response to the 2021 Commission on Race and Ethnic Disparities – the Children’s Commissioner was asked to undertake an Independent Review into family life. The Review draws on brand new quantitative and qualitative research across all families and children in England to show what modern family life looks like, how its changed over time and how it’s been impacted by pandemic.

The Commissioner knows that the influence of family reaches far and holds immense power. It is the prism through which we go on to discover the world, and the foundation for our path in life.

In the Family Review, the Commissioner heard how family provides a shield from life’s challenges – a protective effect against adversity.[7] 

This Bill provides the opportunity to change how inpatient settings view and work with family, to the benefit of all children in their care.

Understanding the needs of the family: All children in inpatient care should be supported to maintain relationships with their family where it is in the child’s best interests. This may include visits not only from parents, but from siblings, friends or wider family. Guidance should set out what practical support should be offered to support family visits and family interaction. 

Young Carer Assessments: Where an adult parent or guardian is admitted to hospital, children in the family may need additional support. This is also an opportunity to understand whether the child may qualify as a young carer. Local Authorities should therefore be notified whenever a parent or guardian is admitted to inpatient care, so that a young carers assessment can take place.

Conclusion

The Children’s Commissioner welcomes many of the proposed changes to the Mental Health Act, and would like it to ensure that children consistently receive the most appropriate care, by providing better protections for young informally admitted patients and by centring support around the family and the young person.

The Children’s Commissioner will continue to speak to children in inpatient settings about their treatment and care and will work with the newly established Integrated Care Boards and across the system to champion these young people’s needs.

September 2022