The change in legal requirements for health organisations providing mental health treatment to children means trusts and providers need to ensure they are meeting all statutory duties, write Rebecca Fitzpatrick and Andrew Keefe.

One in 10 children and young people under 16 suffer from a mental health disorder. It is estimated that in 2007 there were 607,402 children with such disorders. By 2026 the number is projected to rise to 687,969, an increase of 13.3 per cent.

Total service costs in this sector have been estimated to be £143m in 2007, increasing to £237m by 2026.

Until recently the Mental Health Act 1983 did not distinguish between children, young people and adults. There was concern that this may be one of the reasons that children were not receiving adequate mental health care in the UK.

The enactment of the Mental Health Act 2007, saw the introduction of legislative changes, which came into force on 1 April 2010. It was hoped these would address the lack of legal safeguards afforded to children receiving mental health treatment in hospital.

The new s.131A of the Act (1) introduced a legal requirement that all children under 18 must be treated in an environment that is suitable “having regard to [their] age (subject to [their] needs)”.  Chapter 36.67 of the MHA Code of Practice set out detailed guidance stating that children and young people should have:

  • appropriate physical facilities
  • staff with the training, skills and knowledge to address their specific needs
  • a hospital routine that allows their personal, social and educational development to continue as normally as possible
  • equal access to educational opportunities as their peers so far as possible.

S.131A requires hospital managers to ensure that a person experienced in child and adolescent mental health services cases is consulted in determining what constitutes “age appropriate services”. Further, where possible the responsible clinician for a child patient should be a child specialist.

The 2007 Act and revised Code of Practice also introduced further measures to safeguard children receiving mental health treatment in hospital such as;

  • a new requirement that at least one of the practitioners carrying out an assessment for detention under the act should be a clinician specialising in CAMHS
  • a new duty on hospital managers to refer detained child patients to the tribunal after one year (rather than three years for adults)
  • additional consent to treatment safeguards regarding for example the provision of electro convulsive therapy to children

We are now more than year on from these changes in an increasingly challenging time for the NHS, including mental health services.

In February 2011, the government published its mental health strategy No Health without Mental Health. The strategy sets out six main objectives including that more people will have good mental and physical health, that more people will recover and that fewer will suffer avoidable harm or stigma/ discrimination. An additional £400m has also been promised for therapies, such as counselling, to increase access to them by 60 per cent by 2015, with a particular focus on children.

The King’s Fund publication, Paying the Price: the cost of mental health care in England 2026, identifies that tackling mental health issues experienced by children and young people and focusing on early interventions, is likely to reduce the cost to the public purse in the future.

The April 2011 joint report published by the Department of Health and the London School of Economics Mental health promotion and mental illness prevention; the economic case echoes these themes, highlighting that for example specialist early intervention teams working with children during their first episode of schizophrenia or bipolar disorder save £18 for every £1 invested.

Against the current backdrop of sweeping cuts within the NHS and public sector, it is ever important for both commissioners and providers of CAMHS services to take steps to ensure legal duties are met. Failure to meet these requirements could in some cases lead to legal claims for compensation, judicial review or under the Human Rights Act, thereby exposing an organisation to risk. Taking a longer view, the evidence base also suggests that earlier effective intervention also saves costs to the public purse at a later stage.

In particular local policies and protocols regarding children’s services should be up to date and regularly audited, with clear pathways for young people with mental health needs together with joint working between CAMHS and adult services where necessary.

Trusts and healthcare providers should ensure that the local named Safeguarding Children’s Board is satisfied with the arrangements in place and that a named individual or committee is responsible to the trust board in order to fulfil statutory reporting duties.

What Young People Want

1.     To be in a safe supportive environment

2.     To receive age appropriate information

3.     To be involved in their care planning

4.     To have access to independent advocates

5.     To continue their education

6.     To have meaningful daytime activities

7.     To have opportunities for participation

(Adapted from Out of the shadows, Young Minds 2008)

Children & Mental Health - Eight Operational standards

Environment and facilities

Access to exercise and fresh air; age appropriate day/visiting areas; single room; private single sex bathing areas; diverse multimedia’ computer and Internet access;

Staffing and training

Suitable trained and supervised staff; access to CAMHS professionals for support; ward and CAMHS staff to receive joint training including safeguarding training.

Assessment, admission, transfers and discharge

Multi-agency protocols for young people’s admissions; agreed referral processes and pathways; completion of individual age appropriate risk assessments; and use of chaperones.

Care and treatment

A named lead professional under CPA (2); incorporate young person and carer’s views; NICE approved treatments and safeguards for out of licence medication usage; and structured daytime activities.

Education and further learning

Education facilities for all young people whose stay exceeds five days; active education liaison officers; named lead for education; provision of quiet study areas; and access to quality learning materials

Information and advocacy

Information provided in accessible & understandable manner specific to the young person concerned ; ‘welcome packs’ on first day of admission for young people and carers; and access to independent advocacy support within first 24 hours of admission.

Consent and confidentiality

Consent sought for all examinations and treatments; staff access to protocols and legal guidance; capacity to consent assessed by trained young person’s professional; consent or refusal recorded appropriately; staff adhere to confidentiality protocols and procedures unless detrimental to the young person’s care.

Other safeguards

Named child protection lead on the ward; age appropriate physical restraint techniques adopted; detained young people to have appropriate access to Hospital Manager’s reviews and Tribunal hearings with a CAMHS specialist panel member’s.

(Adapted Royal College of Psychiatrists (2009) Safe and Appropriate Care for Young People on Adult wards, 2nd Ed)


  1. S.131A Mental Health Act 1983 (as amended by the 2007 Act)
  2. Care Programme Approach