A critical appraisal of the human rights and mental health legislation of children and young people, specifically those aged between 16 and 17 years, within the mental health system in the UK – compliance, breaches and remedy.
To what extent do human rights play a role in the application of the provisions of the Mental Health Care Act 1983 to children aged 16 – 17 years, should parental rights be afforded greater importance or are the provisions of legislation aligned with the objectives sought to be achieved by the import of human rights into English law. Are these rights justifiably limited, if at all?
To determine whether the provisions of the national legislation are attune to the requirements of human rights with regards to all relevant factors considering all relevant parties and in doing so to discover the purpose of the legislation and how this has been interpreted by the courts with regards to the relevant parties. The adequacy of the remedies available to parties presents an important objective of this research allowing for discussion of the potential horizontal applicability of these rights generally.
The research methodology used will be qualitative in nature relying primarily on interpretation of primary sources such as common law and the relevant international case law.
The research will also examine secondary sources of information such as journal articles, textbooks and case notes to interpret and give content to common law and human rights articles.
This will then be analyzed in terms of the research objective.
A purposive approach to interpretation of these sources will be adopted in order to make connections between the human rights protected implicitly by the relevant legislation, regulations and case law. E.g. the competency requirements of the legislation protecting the autonomy rights of a child.
Outline & Literature Review
Introduction to the topic as well as a definition of the parameters of the research – i.e. what the research will cover.
A background to the topic including the relevant developments in legislation with regards to the Mental Health Act 1983 and the corresponding responsibilities of included in the European Convention of Human Rights, the Human Rights Act 1998 and the Equality Act 2010.
The Code of Practice will also be included briefly to outline the relevance of the Zone of Parental Control (ZPC) and how this is applicable to s131 specifically and the Mental Health Act generally.
Emphasis will be placed on purposive interpretation of the legislation through the common law and judgments of the European Court of Justice. This purposive interpretation invariably emphasizes the common thread of what is in the best interests of the child.
Human Rights Framework
Examination of the competing human rights involved in the mental health legislation relating to children generally. This refers to human rights legislation of both the United Kingdom and the relevant international human rights conventions (European Convention of Human Rights and various United Nations conventions on the social and political rights of a child and family).
The right to liberty, privacy, equality and dignity of the child on one hand, and the right to respect for family life form the foundation of the competing considerations of this research.
The right to liberty corresponds with the child’s (aged 16 – 17) rights to make decisions regarding their welfare and autonomy, whilst the right to respect for family life is the right of the parent (or those with parental rights) to make decisions regarding the upbringing and care of their ward.
How one may balance competing human rights taking account of lawfulness, legitimacy, necessity and proportionality.
The Right to Liberty and Competence
The content of the right to liberty in the context of the mental health act with a limitations analysis including an examination of the case law.
Brief explanation of the Gillick competency and Fraser guidelines focusing specifically on the concept of a sliding scale of capacity for competency as a child reaches maturity. The emphasis on these competency guidelines will serve as an explanation of the basis of s131 – that the child has the capacity for autonomy in this regard due to an advanced mental state akin to that of a major.
Exploration of how this presumption of competence for children aged 16 – 17 operates with a limitations analysis including the importance of this presumption for the enforcement of the right to liberty.
This will include discussion of the rights to privacy, dignity and equality as necessarily linked to liberty.
A brief explanation of the operation of the zone of parental control as revived by the Code of Practice and how this enforces protection of these rights.
The purpose of parental rights i.e. what is in the best interests of the child and how this purpose may be infringed by the operation of s131.
A critique of the Gillick competency and Fraser guidelines as they apply to 16 – 17 year olds – why these may not be appropriate for the assessment of this age group.
For the purposes of committal to a mental health care facility, parental rights should perhaps be afforded a greater weighting of consideration due to the nature of the issue involved and the complex cognitive nature of mental health.
A common law and international case law analysis of the limitations of parental rights with a purposive interpretative approach.
An examination of these competing considerations with strong emphasis on the case law and purpose of the legislation as determined by case law.
This will also determine the appropriateness of the competency guidelines.
This limitation of rights of both parties is justifiable, however with the recommendation that the application of this presumption be emphasized as rebuttable which may include legislative amendment.
Breaches and Remedies
Discussion of the horizontal and vertical applicability of these rights and who may have a claim for the breach of the legislative sanctions, i.e. the state, private healthcare institutions, public healthcare institutions, parents, guardians and the child themselves.
The nature of a breach of these provisions – civil or criminal sanctions e.g. unlawful imprisonment.
Remedies, including the damages.
The trouble with human rights remedies is that they often serve a broader societal purpose such as a declaratory order clarifying interpretative issues and application of the right, however these often do not present satisfaction for the claimant.
Due to the intricate nature of this topic and the complex relationship with other surrounding issues –such as competing human rights (privacy, dignity and equality), the zone of parental control, competency and capacity issues –certain issues will only be superficially examined for explanatory and analytical purposes rather than academic contribution.
Specifically with regards to the related human rights, there is much jurisprudence on the nature of these considerations as values inherent in all rights (the values of dignity and equality rather than a specific right thereto), this discussion is noted however will not fall within the parameters of the dissertation.
Code of Practise: Mental Health Act 2008
Equality Act 2010
European Convention of Human Rights
Gillick v West Norfolk & Wisbech Area Health Authority  UKHL 7
Human Rights Act 1998
Mental Health Act 1983
Wheeler, R. ‘Gillick or FraserA plea for consistency over competence in children: Gillick and Fraser are not interchangeable’,  British Medical Journal, 332, 807
 Gillick v West Norfolk & Wisbech Area Health Authority  UKHL 7; Wheeler, R. ‘Gillick or FraserA plea for consistency over competence in children: Gillick and Fraser are not interchangeable’,  British Medical Journal, 332, 807