Children looked after by local authorities: legal framework

This report describes key aspects of the law as it applies throughout a child's journey through public care and supervision.

8 Health care

General statutory framework for NHS care

Scottish ministers have a general duty to promote a comprehensive and integrated health service in Scotland, to secure improvement in the physical and mental health of the people of Scotland and the prevention, diagnosis and treatment of illness. 26 In exercising their respective functions health boards, local authorities and education authorities are required to co-operate with one another to secure and advance the health of the Scottish people. 27 More recent legislation makes explicit that health boards should also co-operate with one another in planning and providing health services, empowering one health board to provide services for another, and to make joint arrangements for provision with one or more health boards. 28 Health boards have a duty to promote public involvement in the NHS and should consult people for whom they are providing particular services. 29

Scottish ministers have a duty to promote improvement in the physical and mental health of the people of Scotland and are empowered to take any steps required to do so. To achieve this, ministers may provide financial assistance to, or enter into arrangements with any person, which may include a local authority or voluntary organisations. 30 Where Scottish ministers consider that an NHS body is failing to provide a service or service standards are poor they may intervene and direct that the specific function be performed for a specified duration and to a specified extent. 31

Health care for children placed away from home

Secondary legislation requires the local authority to include consideration of health care arrangements in making a care plan. 32 Information about the child's health history, current state of health and development and existing arrangements for his or her medical or dental care must be gathered to inform the care plan. 33 The local authority must ensure arrangements are made for the child to be medically examined by a doctor ideally before placing a looked after child and, if not, as soon as possible thereafter, and obtain a written medical report on the child's health status and health care needs. 34 The requirement to arrange a medical examination before or shortly after placing the child is waived where the child has been medically examined and assessed within the three month period immediately before the child begins to be looked after away from home. However, if the child has legal capacity to consent to examination or treatment on his or her own behalf, any medical examination or any care and treatment may only be carried out if the child consents. 35 The local authority should notify the receiving health board of the child's placement in their area 36 and ensure that arrangements are made to provide the child with health, medical and dental care during the placement. 37

Mental health

Mental health legislation, which commenced in 2005, requires that health and social care professionals and others providing mental health treatment and care and other related services to a child or young person under 18 do so in a manner that best secures the welfare of the young patient. 38 They must take into account a wide range of matters including the views and wishes of the young patient, those of their parents, carers or guardian and any other legal representatives, inform and involve the patient as fully as possible in decisions about their care and have regard to his or her age and gender, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group. They should consider the needs and circumstances of the young person's carers and ensure that carers are fully informed to assist their care of the young patient. Health boards must act to provide the maximum benefit of the patient whilst ensuring minimum restriction of their freedom, and treatment of the patient must not discriminate against patients in comparison with non-patients. 39

Health boards will also have a duty to provide appropriate services to meet the needs of children and young people with mental health problems who are admitted to hospital. This duty provides an entitlement to each child to have their particular needs met, rather than the generality of services. 40 The relevant education authority must ensure that the child receives appropriate education whilst staying in hospital. 41 Any person with functions under the Mental Health Act must now take steps to mitigate any impairment of parental relations or reduction of contact caused by either's admission to hospital. 42 In essence this places a responsibility on health services to consider parent and child relationships in its care of patients and make arrangements to alleviate any adverse effect caused by separation and mental health problems. For example when a parent of a young child is admitted to hospital the health board should ensure that there are appropriate facilities for contact including where necessary overnight stays, and support to the mentally ill parent or child to benefit from contact where necessary.

Welfare of children admitted to hospital for more than three months

If a child is in hospital or other accommodation provided by a health board, private hospital or nursing home has had, or is likely to have had no contact with a parent or other person with parental responsibilities for a continuous period of three months or more, the person responsible for the accommodation must notify the local authority in whose area the hospital or accommodation is located of the child's circumstances. 43 In practice the responsible person is likely to be the hospital manager or a responsible medical officer. Parental contact is defined as direct contact with a person with parental responsibilities (that is, not just cards or telephone calls). The local authority is then required to inquire into the child's circumstances and take reasonable steps to find out if the child's welfare is adequately safeguarded and promoted whilst he or she is in hospital or health care accommodation and consider whether it should exercise any of its functions in respect of protecting or promoting the welfare of children under the Act. This may include providing accommodation for the child, referring the child to the reporter or providing services to the child or his or her family.

The local authority may authorise a person to enter premises run by health services in its area and to inspect the agency's records, in order to find out whether the agency has fulfilled its duty to notify the local authority of children with whom there has been no parental contact. 44

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