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Drug Treatment Services for Young People: A Research Review
CHAPTER 5 The Legal Framework in Scotland
This chapter summarises the findings of a literature review of the current statutory framework that might affect the provision or take up of drug treatment services for young people under the age of 16 years in Scotland. The full results are available in a separate EIU report on the two literature reviews. Firstly we outline the current statutory framework and discuss some inherent difficulties in implementing it. The review results are then presented in more detail.
Key Findings
Current Statutory Framework
The current statutory framework in which services for young people in Scotland are delivered is derived from key legislation, essentially the Children (Scotland) Act 1995 and the United Nations Convention on the Rights of the Child 1989, and related professional and organisational policy documents. This is the overarching framework in which drug treatment services for young people should be provided and the management of risk in relation to service provision should be reduced. Although the current statutory framework is intended to facilitate care decisions, at times legislation and professional guidance may appear to conflict. Legally the welfare of the child should be given paramount consideration but in reality professional guidelines may trigger responses that are not in keeping with a young person's wishes or immediate needs. As such, potential difficulties arise in implementing the framework.
Difficulties in implementing the statutory framework
Expert commentaries suggest difficulties in implementing this statutory framework in four key areas:
upholding children's rights to health and health care;
upholding children's rights to participate in decisions;
upholding children's rights to consent to medical treatment;
sharing of information.
Whilst provision of a comprehensive range of drug treatment services for young people may be advocated, in practical terms it may be difficult for young people to exercise their rights to these services. Children's knowledge of the current statutory framework is likely to be limited. Organisations such as the Scottish Child Law Centre, which provides independent, free legal advice to children, and Who Cares? (Scotland), which provides independent advocacy for children cared for by local authorities, offer potentially useful resources. However, it is unclear how best to inform the majority of Scottish children of their rights, including young drug users.
Key stakeholders such as health and social care professionals may also be unaware of children's rights and as a result may not fully recognise or uphold these rights . In addition many parents will have limited understanding of the current statutory framework in which services are provided and may miss valuable opportunities to work with professionals in upholding their children's rights . It is important to address these gaps when planning future service provision.
Some authors also report a degree of professional reluctance to become involved in upholding children's rights to health and health care . This may be due to lack of professional knowledge and experience, or uncertainty of the legal boundaries within which services should be provided. Medical reluctance to prescribe substitute drugs for young drug users under the age of 16 years may highlight professional fear of litigation. Since drug safety and efficacy in adults can rarely be extrapolated to children, it is understandable that prescribing raises concerns about liability litigation. Although professional guidelines may offer some reassurance, substantive research evidence from studies involving young people is required to establish its efficacy among young drug users .
Upholding a child's right to participate in decisions about their treatment also raises some difficulties, particularly in relation to parental involvement and deciding what is in a young person's best interests. For example, when parent's views about care decisions differ from those of the young person, professionals face the dilemma of deciding whose wishes have precedence. The current statutory framework provides guidance but the practicalities are such that it is extremely difficult to provide a clear ruling.
Dealing with the practicalities of real-life situations may also challenge professionals' ability to uphold children's rights to medical treatment. If, for example, a young person is prescribed methadone, it may be advisable to inform their parents of the possible side effects. Clearly, in this instance, it is important to establish the ground rules in which therapeutic relationships are managed and give clear guidance to all young people about the circumstances in which confidentiality may be breached . However, this may deter young people from taking up drug treatment and as such inadvertently restrict their right to that treatment.
The sharing of patient information between agencies is also important. Although the circumstances in which information should be shared within and between agencies may be fully explained to young people, it may not be until a young person is more fully involved with a service that the reality of this requirement becomes clear. Then professionals may face the dilemma of deciding whether to disclose information against the wishes of a young person. Whilst guidance documents can ensure that procedures are followed appropriately, therapeutic relationships between young people and service providers may be threatened.
Review Results
Children (Scotland) Act 1995
The literature clearly establishes the Children (Scotland) Act 1995 as the key legislation in relation to the care and welfare of Scottish children, which in turn is supported by articles of the United Nations Convention on the Rights of the Child 1989. The essential principles of the Act are that:
each child has the right to be treated as an individual;
each child who can form a view on matters affecting him or her has the right to express those views if he or she so wishes;
parents should normally be responsible for the upbringing of their children and should share that responsibility;
each child has the right to protection from all forms of abuse, neglect or exploitation;
so far is consistent with safeguarding and promoting the child's welfare, the public authority should promote the upbringing of children by their families;
any intervention by a public authority in the life of a child must be properly justified and should be supported by services from all relevant agencies working in collaboration.
Three main themes are evident in the Children (Scotland) Act 1995 in support of these principles:
the welfare of the child is the paramount consideration when his or her needs are considered by courts and children's hearings;
no court should make an order relating to a child and no children's hearing should make a supervision requirement unless the court or hearing considers that to do so would be better for the child than making no order or supervision requirement;
the child's views should be taken into account where major decisions are to be made about his or her future.
The remaining results are presented under three broad headings: a) official government publications, b) drug organisation publications and b) expert commentaries. Expert commentators suggest potential difficulties in implementing the statutory framework in the four key areas already outlined above (5.3). The possible impact on drug service provision and uptake in Scotland is discussed.
The review uncovered 11 publications that referred to the legal framework affecting drug services for young people. Four of these publications are issued by the Government and contain guidance relating to the provision of drug services, two of which relate specifically to Scotland. Three publications are issued by drug organisations and contain guidance relating to drug treatment services for young people, one of which relates specifically to Scotland. The remaining four publications offer expert comment in relation to legislation and provision of drug services to young people.
Government Publications
Getting Our Priorities Right: Policy and Practice Guidelines for Working With Children and Families Affected by Problem Drug Use (2001), is underpinned by the key principles of the Children (Scotland) Act 1995 . Guidance is aimed at workers involved in providing support to families affected by problem drug use, including Drug Action Teams and local Child Protection Committees. The main legal considerations relate to sharing information, confidentiality, ascertaining when to intervene and improving inter-agency working. This document comments on perceived inconsistencies between legislation and professional guidance, and directs workers to other guidance documents issued by the Government relating to the care of children in general . It should be noted that this is currently a consultation document and has therefore not been published in its final form.
Drug Misuse and Dependence - Guidelines on Clinical Management (1999) offers guidance to medical practitioners throughout the United Kingdom, particularly those working in general practice . The key principle underlying these guidelines is that services provided by medical practitioners should meet both general health needs and drug-related problems. Specific guidance in relation to young people and drugs is included, and covers issues such as consent, prescribing medication, and data collection and monitoring. Principles of good practice in caring for young drug users are outlined:
all interventions should be undertaken in accordance with the guiding principle of the Children Act 1989 (or the Children (Scotland) Act 1995), that the welfare of the child is paramount;
the practitioner should adhere to local policies and procedures that are agreed with the relevant local Child Protection Committee;
the practitioner should involve other children's and young people's services and substance misuse services;
family involvement should be seen as good practice;
interventions should follow a comprehensive assessment of need, developmental maturity, family factors and the risk of substance-related harm;
the provision of advice and treatment services separate to those from adults - that are both appropriate to and sensitive to the specific needs of children and young people in an environment appropriate to their age;
if practitioners have concerns about issues of confidentiality, legal advice should be sought.
These guidelines have no defined legal position. However, in providing a consensus view of good clinical practice, they provide a significant reference point for the General Medical Council and are therefore relevant where allegations of poor service provision are made .
The document makes specific recommendations in relation to prescribing for young drug users. That is, since a young person under 16 is unlikely to fully understand the implications of being prescribed controlled drugs, this treatment option is not recommended unless parental consent is obtained. Even with parental consent, it is recommended that controlled drugs should only be prescribed to a young person following a full assessment and with specialist supervision. The need for more comprehensive data collection and monitoring in relation to the young person, compared to that required for an adult, is also noted .
Two other Government publications offer guidance in relation to drug treatment services and although more directly applicable to England and Wales are clearly relevant to Scotland.
Drugs and Young Offenders - Guidance for Drug Action Teams and Youth Offending Teams (1999) aims to raise awareness of the co-existence of drug misuse and offending behaviour and outlines opportunities to intervene through multi-agency approaches. Evidently providing services for young offenders raises many of the same legal challenges as providing services for non-offenders in relation to access to treatment, inter-agency collaboration, consent, and confidentiality and sharing information .
The Substance of Young Needs (2001) presents a review of the changes in policy and practice in relation to the misuse of drugs by young people up to the age of 19 years. The Children Act 1989 and the United Nations Convention on the Rights of the Child 1989 are acknowledged as the underpinning legal framework. One of the key issues identified in this document is that provision of services should 'operate within the fact of the law but also within the spirit and the intentions of the law' . The publication gives guidance in relation to training staff for working with young substance users and highlights areas in which staff must acquire competence to work within the law:
knowledge of The Children Act (Scotland) 1995, education act, relevant law regarding race relations, gender, disability, equality and mental health and other relevant law commensurate with the interventions that are to be adopted;
young person's ability to give or refuse consent to treatment to health and social care;
confidentiality and communication with other agencies and parents;
all guidance and procedures to be agreed with local Child Protection Committee;
guidance on recruitment, checking and appointing staff;
availability of complaints procedure;
training on maintenance of adequate case records .
Publications from Drug-related Organisations
The Scottish Drugs Forum offers comprehensive guidance on the legal framework for young drug users. The aim of
Working with Young Drug Users: Guidelines to Developing Policy (1999) is 'to meet the need of agencies and individuals working in the drugs field for clarification on legal and professional boundaries in respect of working with young drug users.' The document effectively brings together relevant policies, key legislation and professional frameworks to inform service provision. The Children (Scotland) Act 1995, United Nations Convention on the Rights of the Child 1989 and Age of Legal Capacity (Scotland) Act 1991 are identified as key legislation .
The document identifies sections of Children (Scotland) Act 1995 that are particularly relevant to those working with young drug users and also highlights Articles of United Nations Convention on the Rights of the Child 1989 that are important in developing policies for working with young drug users.
In terms of the statutory framework, the authors highlight the breadth of knowledge required by those working with young drug users and comment that at times existing legislation appears to be inconsistent with professional guidelines. There is a specific focus on the young person's competence to consent to treatment, and the issues of disclosure, confidentiality and privacy. However, the authors do not provide definitive answers and are careful to stress the need for agencies, owing to diversity in roles and responsibilities, to address their own specific policy needs. The Scottish Drugs Forum suggests that current legislation presents opportunities for proactive service development - in that, it respects the 'privacy and dignity of young people, their right to make certain decisions for themselves and the right to a say in who should and should not be involved in their care'. .
A further two publications commenting on legislation relating to drug treatment services are issued by drug-related organisations in England. Whilst not wholly applicable to Scotland, the information offered is of interest to those working with young people in Scotland.
Making Harm Reduction Work (2000) offers specific guidance in relation to the provision of needle exchange services to young people and highlights measures to maximise professional protection from litigation. That is, by involving parents whenever possible, by adopting a holistic approach to assessment and by giving due consideration to child protection issues .
Expert Commentaries
The review identified four publications that comment on legislation and provision of drug services to young people.
Upholding Children's Right to Health and Health Care
The rights of young drug users to access a comprehensive range of drug treatment services should be encompassed in their right to health and health care. However, in reality fulfilling this right presents difficulties for service providers and young people.
Many professionals lack experience and confidence in dealing with young drug users. Difficult decisions are often made using information and a rationale applicable to adult drug users. Professionals may also feel vulnerable and inadequate when intervening in more severe cases of drug misuse:
We enter territory where the legal and ethical ice is thin indeed, such as prescribing dangerous drugs to children, enabling them to do risky thing such as injecting rather more safely, and taking a degree of responsibility as an adult for the life of a young person clearly at risk of losing it. Fear of failure and the instinct to cover your back may be as strong and understandable as the urge to help .
Goodsir (1991) advises health professionals to adopt a consensus approach to drug treatment services and thereby minimise the risks of legal action being taken against them.
The illegal status of drugs and fear of reprisal may in itself prevent young people seeking treatment services. Established adult responses to drug use, such as exclusion from school and informing authority figures (parents, school or police), may seem wholly appropriate. However, such responses have the potentially harmful effect of adding to a young person's problems, and may ultimately deter other young people from seeking help. An alternative approach in which the positive as well as the negative aspects of drug use are acknowledged by drug treatment services may be more easily accepted by young people .
Upholding Children's Right to Participate in Decisions
Harding-Price (1993) describes the dilemma faced by nurses when parents have expectations that they will be informed and involved in treatment decisions about their child. The author stresses that it is incumbent upon health professionals to check with a child, on an ongoing basis, whether sharing information with their parents is an option . Those working in this field face professional dilemmas on a regular basis:
'Legally playing safe may not be the same as ensuring the young person's safety' .
Although drug use and potential for harm is widespread among young people, those at greatest risk of harm are concentrated in certain groups. For example, young offenders, young people in-care or those who are homeless, those whose parents who are using drugs and those who have troubled family backgrounds . The multiplicity of problems facing these young people complicates the legal framework in which services must be provided, and necessitates a pragmatic approach to ensure that their rights to participate in decisions are upheld.
These vulnerable young people do not access services readily and when they do they are often only prepared to co-operate on their own terms. This may be at odds with the legal context in which services are provided, when professional guidance highlights the need to adhere to principles of good practice, such as maintaining contact and monitoring change. This creates a tension between professional protection and upholding children's rights to participate in treatment decisions .
Upholding Children's Right to Consent to Medical Treatment
Several commentaries refer to an extremely influential piece of English case law in 1986 known as the 'Gillick Case'. Although not strictly applicable to Scottish law, further explanation is appropriate. According to the outcome of this case, a child is deemed legally capable, having acquired sufficient intellectual and emotional maturity, of consenting to medical treatment without parental consent. This case represented a huge turning point in legislative history and was quickly followed by legislative changes to incorporate these principles, which in Scotland is provided for in the Age of Legal Capacity Act 1991 (Section 2(4)) and Children (Scotland) Act 1995. Subsequently a series of cases presented in court have challenged and overruled Gillick based decisions, with the welfare principle being given priority over children's rights.
It is suggested that under the principles applied to the 'Gillick Case', treatment without parental consent might be justified where health professionals are satisfied that:
the young person, although under 16 years of age, will understand the advice;
the young person cannot be persuaded to inform parents or to allow someone else to inform their parents that the young person is seeking drugs advice;
the young person is likely to begin or continue using drugs with or without drugs treatment;
unless the young person receives drugs advice or treatment the young persons physical or mental health or both are likely to suffer;
the young persons best interests require health professionals to give the young person drug advice or treatment or both without parental consent .
The rights of young drug users to consent to medical treatments may be blocked by professional guidance, backed by legal imperatives, in relation to service provision. For example, since low threshold clinics and outreach services are not conducive to full assessment of competency to consent, needle exchange services should not be provided to those under 16 years of age .
The Sharing of Information
Although misuse of drugs is grounds for referral to the Children's Hearing system, Harding-Price (1993) emphasises the need for service providers to consider the full consequences of whatever actions are being taken . Referral to a hearing may not be necessary in every case of drug use by a young person. Early supportive measures to minimise risk may obviate the need for action within the hearing system.
This view is supported within the principles of the Children (Scotland) Act 1995, which states that the welfare of the child is paramount and that any intervention should be made in the child's best interest. Parker (2001) asserts that most adolescent drug use is recreational and that many otherwise law-abiding young people become stigmatised for drugs offences unnecessarily. In this respect the sharing of information between agencies merits careful consideration .
Links to Case Studies and Treatment Pathways
The themes derived from the literature review are strongly supported by some survey responses (see Chapter 3, 'Needs for Further Guidance') and by the qualitative field research. The latter provides a number of instances of the existence and effects of legal framework issues, and practical solutions adopted. These will be discussed as part of a review of issues and their effects for service users, in the next two chapters.
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