Rights of the Child - Essay Example

Introduction It has been recognized by the Universal Declaration of Human Rights that while all individuals are en d human rights, unlike adults, children1 are also entitled to special care and assistance to address their special physical, psychological, and developmental needs, as well as their unique position in society and within their families (UN 1948, Art. 25.2; Paul 2004, p.301). As such, numerous legislations were enacted to ensure that these rights and needs unique to children are properly implemented and accorded to them. Among these legislations are the Declaration of the Rights of the Child, which was ratified by the UK Government in 1991 and the Children Act of 1989, which brings the welfare of the child as the paramount consideration in a child's upbringing (s.1.1). One aspect that children need special care and assistance in is with regard to their mental health. Proper mental health is a crucial tool that an individual needs in order to cope with the stress and difficulties that they are bound to face in life. However, given the significant amount of stress and pressures children and adolescents face in today's society, children and adolescents are prone to significant mental health problems. In a report by the Mental Health Foundation, it was found that between 10 and 20 percent of children and adolescents have mental health problems in the United Kingdom (Mental Health Foundation 2001). To solve such problems, children and adolescent mental health services (CAMHS) has been put in place to pay attention to children's mental health needs. However, while CAMHS presents children and adolescents with important social services that can help improve their mental well-being, the manner that decisions are made within the social care practice poses certain human rights issues that may violate the rights of a child as outlined in the Declaration of the Rights of the Child and the Children Act of 1989.Thus, as service users of CAMHS, how are children and adolescents' human rights treated Rights of the Child As previously mentioned, children are entitled to special care and assistance to address their unique developmental needs. This need for special care, on the other hand arises from the view that children, "by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as well after birth" (UN 1989, Preamble). Lansdown suggests recognition of this need makes children subjects of human rights such that it imposes the obligation on adults to ensure that these rights are protected (2000, p. 288). Hence, adults and the government are obliged to provide children assistance and protection - parents through providing a healthy home environment due to their parental responsibility to the child, and governments by providing the appropriate legal framework and institutional assistance (Children Act 1989, 3.1; UN1989, Art. 2). Within the context of mental health, parents' obligations include accessing the child's heath care, serving as legal representatives or proxy decision-makers, and deciding on the child's best interest (Paul 2004, p. 303). Thus, they have the primary responsibility for ensuring a child's well-being. With regard to the state, it is their responsibility to "ensure that no child is deprived of his or her right of access to... health care services" (UN1989, Art. 24.1). This however, is not limited to providing assistance to the child alone, but to those responsible for him as well. For children with mental health problems, disorders, or illnesses in the United Kingdom, government assistance and health services are provided by the Child and Adolescent Mental Health Services (CAMHS). This is a comprehensive range of services made available to children and their families dealing with mental health problems, which incorporate health services provided for by specialists, and the support services from the community of individuals working with children (Wolpert and Foster 2005). According to Wolpert and Foster, its aim is to improve the outcomes for children in terms of "staying safe, keeping healthy, enjoying and achieving, achieving economic well-being, and making a positive contribution" (2005). However, while the services provided by CAMHS are integral in improving the mental health of children and ensuring their well-being, the manner that assistance and services are provided under the Mental Health Act 1983 can sometimes conflict with other human rights accorded to children. Issues regarding a child's right to welfare, participate in decisions regarding his welfare, to be treated as a patient, and to be treated as a child using mental health services arise under current law. Current Legal Framework for Mental Health among Children Under the Mental Health Act 1983 children with mental health problems are not distinguished from adults with mental health problems (Young Minds 2002, p.2). Thus, individuals regardless of their age are treated the same way without regard for the different needs that they may have. Such view of mental health, however neglects the fact that unlike adults, children have a three-fold interest in the outcomes that result from acquiring mental health services, particularly the interests of the current child to ensure welfare and the interests of the adult-to-be in order to live a productive life (Paul 2004, p. 302), in addition to the fact that children's interests as patients should also be considered. By not recognizing the inherent differences between adults and children, the possibility of hurting a child's development, especially in an age of immaturity, in favour of providing mental health services becomes apparent. This in turn impinges on a child's human rights. According to Article 3 of the UN Convention, "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration" (UN 1989, Art. 3.1). This view is in conjunction with the Children Act 1983 stating that in determining, "any question with respect to the upbringing of a child the child's welfare shall be the court's paramount consideration" (Children Act 1989, Art. 1. a). However, since there was no distinction made regarding children under the Mental Health Act 1983, there is no clear principle incorporated within CAMHS that reflects this right (Lansdown 2000, p. 387). As a result, children are often not given the special attention and treatment that they need. For example, children being treated for mental health problems and detained in hospitals have the right to be "treated in a manner which takes into account the needs of persons of his or her age" (UN 1989, Art. 37.c). This includes, among other things, the right to be treated and assessed by health professionals specializing on children and be detained in a ward specially designed for their age. In addition, children also have other basic needs, which should be met such as education and other opportunities that are conducive to his full development (UN 1989, Art. 23.3). This is in accordance with his rights to "enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community"despite his conditions (UN 1989, Art. 23.1). Such rights, however, can be endangered on the matter with regard to the state's right to impose compulsory detention among children. This is provided under Article 2 of the Mental Health Act 1983 where individuals can be detained compulsorily in cases of severe mental health problems. While provisions are given under the Children Act 1989 (Art. 25) addresses these needs, an evaluation study regarding the detention of children shows that psychiatrists "almost exclusively" uses the Mental Health Act 1983, without reference to the rules of detention provided in the Children Act 1983 (CAMHA-CAPS, p.8). Thus, this clearly violates the rights of the child to be detained in a manner that suits his age. While there is no doubt that a child's welfare should always be considered in making decisions about a child's upbringing, the question of who participates in decision-making and who should have the final say on the decision arises. Particularly, whether children should be able to participate; and if they do, how much weight should their views hold Under the Family Law Reform, children aged 16 and 17 are given the right to consent to treatment (Paul, Foreman, and Kent 2000, p. 205). However, for children below 16 the UN Convention on the Rights of the Child (Art. 12.1) states: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child given due weight in accordance with the age and maturity of the child. This is echoed in the Children Act (1989, Art.3), where in deciding on the welfare of the child, the court considers: (a) the child's ascertainable wishes and feelings(in light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any other characteristics, of which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents Thus, both provisions provide the child participatory decision-making rights to a child, the extent of which is determined by his competence. In cases where a child is not competent to make a decision, parental responsibility overrides the child's autonomy in determining his best interest. However, the case of Gillick v. Norfolk and Wisbech Area Health Authority (Paul, Foreman, and Kent 2000, p. 205) holds that: The parental right to determine whether or not their minor child below the age of sixteen years will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to fully understand what is proposed. Thus, competent children are given the right to override the decision of their parents to give consent. This however, does not apply to a competent child's refusal such that in severe cases where refusal can lead to significant harm on the child and on society, competent children's to refuse are overruled (Paul 2004, p. 306). The question of a child's participatory rights in deciding on treatment of mental health problems indicate a situation where a child's human right to participate in making decisions that affect them is sacrificed to ensure their right to welfare. While it is unethical to override a competent child's decision, it must be balanced with a child's other interests, especially if significant harm is imminent (Paul 2004, 306). However, aside from the human rights issues involving the individual child, it is also important to consider that the child is still part of family unit, where his human rights must be considered in relation to the human rights of his parents, and other siblings. A competent child's right to consent to a particular treatment, for example should be considered insofar as it will not hurt the right of other children in the family to live a productive life. Thus, as Moli Paul argues, the issue of whether a child's human rights to participate in the decision-making process regarding treatment should be extended to an issue of justice in "[doing] the right thing" with consideration to the interests and human rights of all affected children and adults. The Road to Reform: Issues on Children's Rights The Mental Health Act 1983, therefore, does not contain the sufficient safeguards to ensure that children's human rights are properly protected in the context that mental health services are provided for children. Issues that arise from the lack of recognition for the special care children have a right to both as patients in need of appropriate health services and as children entitled to basic human rights include: children's right to be treated in a manner appropriate to their age, their right to participate in deciding their 'best interest' against their right to welfare, their right to enjoy a full decent life, their right to have access to basic needs like education, and their rights against the rights of other members in the family. Recognising the apparent deficiencies of the Mental Health Act 1983 to take into consideration the aforementioned issues, a draft bill was released for consultation in 2002. Upon assessment of the draft bill, however, it was found that the provisions with regard to treatment of children were still lacking (YoungMinds 2002; Davidson, McCallion and Potter 2003). The main reason for such was still the lack of due acknowledgement to children as a patient distinct from adults. The new drafts published in 2004, however, despite some welcome revisions regarding the separate chapter dedicated to children and young adults, are still fails to address specific mental health related human rights issues regarding children. Among the draft bill's positive revisions include the integration of a multi-disciplinary care plan for children being treated for mental health problems as reflected in the Child Act of 1989, as well as ensuring the appropriate educational provisions (Draft Mental Health Bill, para. 242; 247). This helps ensure a child's right to basic and developmental needs that are crucial to child development. However, some points which require further reconsideration under the Draft Bill include the recommendation under the bill that "CAMHS specialist would not necessarily be consulted during the assessment of a patient who is under 18" (para. 230). Although it was also recommended that the child being treated is sent to a facility appropriate for his age, the danger of inappropriate care plans given to children is still possible within the bill. Second, 16 and 17 year olds are treated as adults (para. 215). As previously mentioned, determining who has the right to consent or refuse to treatment with regard to children is a balance between the child's autonomy and welfare, as children may still need some guidance. By allowing 16 and 17 year olds to refuse treatment and increase their autonomy further is a welcome improvement, these children should still be given safeguards to ensure that the best decisions regarding treatment or non-treatment is always achieved. Third, the draft Bill does not require patients under 18 to be treated in a specialist CAMHS unit (para. 222). Instead, the ill only stipulated that children under 18 are treated in age-appropriate facilities, and only provided with a CAMHS specialist if placed in an adult ward. Lastly, as mentioned, there is a need to address detention of children as based on the Children Act 1989 to ensure that the child is not subjected to detention that may be detrimental to his ability to enjoy a fulfilling life. Instead, the draft recommends that: where the predominant issue is the need for compulsory treatment for mental disorder, treatment of under 18 year olds be subject to the provisions in the draft Bill (para. 240). By choosing to disregard the Children Act in this respect, the possibility of hurting a child's welfare and disregarding his rights under legislation or any other institutional proceeding is imminent. Conclusion Children, despite their physical and mental immaturity as compared to adults are still entitled human rights. Their immaturity, however, makes them subject to human rights as well, such that adults - parents, healthcare specialists, members of the community, and the government - have the obligation to protect their human rights. While parents have the responsibility of giving direct guidance and support, and providing them with a healthy environment to environment; the state, together with healthcare specialists and other members of the community have the responsibility of assisting parents in upbringing a child by proving services that the child may need. In the context of mental health care, however, while there is a comprehensive set of health and social services to assist parents and children, the manner that these services are provided can sometimes impinge on a child's human rights. A reason for such is due to the absence of adequate provisions within the Mental Health Act 1983 that recognizes the basic and developmental needs of children not only as patients, but as children as well. Furthermore, the dependence of healthcare specialists in the Mental Health Act 1983, without due reference to the Children Act 1989 or the UN Convention on Human Rights 1989, also causes neglect on the important provisions that may help fill in the gaps between child and adult treatment in providing healthcare services. The present draft bill although containing new amendments that give greater emphasis on the rights of the child is still lacking in certain respects, particularly with the requirement of health care child specialists in dealing with patients under 18, compulsory detention, and the treatment of 16 and 17 year olds. Thus, although the provision of a separate section on the treatment of children is a crucial step in the development of modern mental health laws there are still a number of improvements that require attention before success is achieved in the area. Notes Read More