16.2 Safeguarding children in hospital

Hospitals should be child-friendly, safe and healthy places for children.

Wherever possible, children should be consulted about where they would prefer to stay in hospital, and their views should be taken into account and be respected.

Care should be provided in an appropriate location and in an environment that is safe and well suited to the age and stage of development of the child or young person.  

A safeguarding risk assessment should be undertaken to ensure the safety of other patients in the setting

Children under 16 should not usually be cared for on an adult ward, although if they are aged 14 or over, they may be given a choice. Hospital admission data should include the age of children so that hospitals can monitor whether children are being given appropriate care in appropriate wards.

Hospitals must have policies in place to ensure that their facilities are secure and regularly reviewed. Staff should be appropriately trained.

Children admitted to specialist hospitals can present with complex safeguarding and child protection issues. They may have sustained serious and life-threatening non-accidental injuries, or there may be concerns related to Fabricated or induced illness (FII) and Perplexing Presentations (including FII by carers) These children may have suffered, or be vulnerable to suffer, significant harm through physical, sexual and emotional abuse and/or neglect.

Furthermore, if there are lapses in the care provided for the child, they could suffer significant harm whilst in hospital. Every attempt should be made to allow continuity of care packages (for example OT, Physio and specialist services). Specialist Hospital protocols should outline responsibilities and necessary actions in accordance with legal duties, procedures and accepted good practice:

Children who require treatment as an in-patient in a psychiatric setting will usually be admitted voluntarily; otherwise the Mental Health Act 1983 or the Children Act 1989 will apply. The admission criteria will differ, such as acute (crisis or short term), for eating disorders or challenging behaviour.

Age ranges can vary considerably, and some children may be admitted to an adult psychiatric setting. Catchment areas for some hospitals may cover a regional or national area depending on the specialism. Under the Children's Homes and Looked after Children (Miscellaneous Amendments) (England) Regulations 2013, Local Authorities are required to consult and share information before placing children in distant placements. The Director of Children's Services (DCS) must approve of these placements.'

These changes reinforce Local Authorities' responsibilities as corporate parents for looked-after children to provide high-quality care and support. There will be circumstances where a distant placement will be the most suitable for a child, such as where the child has complex treatment needs that cannot be met by services within the area of the responsible authority.

There will also be children who require an out of authority placement to ensure they can be effectively safeguarded. Such placements will require effective planning, engagement and information sharing with the services likely to be responsible for meeting the child's needs in the future.

Where consent for treatment is required, it should be clarified by the lead professional (e.g. LA children's social care, child and adolescent mental health services (CAMHS)) whether this is being carried out under the Mental Health Act 1983 or the Children Act 1989. The relevant sections are:

•  20 (Provision of accommodation for children: general.)
• 31 (Care and Supervision)
• 36 (Education supervision orders.)
• 85 (Children accommodated by health authorities and local education authorities.)

There needs to be clarification of who holds Parental Responsibility.

If any child who is considered to be Gillick competent* is unwilling to remain as an informal patient consideration should be given to use the Mental Health Act 1983.

*Gillick competence is concerned with determining a child’s capacity to consent. Fraser guidelines, on the other hand, are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment. 

For children under 16 where a Gillick competent child wishes to discharge themself as an informal patient from hospital, the contrary wishes of those with parental responsibility will ordinarily prevail.

See also - GP mythbuster 8: Gillick competency and Fraser guidelines - Care Quality Commission (cqc.org.uk)

Similarly, if a 16 or 17-year-old in unwilling to remain in hospital as an in-patient, consideration may need to be given whether they should be detained under the Mental Health Act.

Where there is dispute consideration should be given to:

1. A) the Mental Health Act 1983
2. B) The Mental Capacity Act including Deprivation of Liberty Safeguards (DOLS) (if the child lives in care home or hospital)
3. C) the Children Act 1989

Onward care planning should be undertaken in partnership with the child/ young person.

Children in psychiatric settings

Control and restraint

Children in psychiatric settings may need to be isolated from other patients or require control and restraint on occasions, and staff should be appropriately trained to meet their needs and safeguard their welfare.

There are 4 broad categories of restrictive physical intervention:

• Restraint;
• Holding;
• Positive touching; and
• Presence.

Please see  Restrictive Physical Intervention Policy 

Children in psychiatric settings where adults are in-patients

When a child is admitted to psychiatric settings where adults are in-patients, a risk assessment must be undertaken to avoid the child being placed in vulnerable situations.

Disclosure of abuse

Children admitted to psychiatric settings may disclose information about abuse or neglect concerning themselves or others. Disclosures may be made when the child feels it is safe to talk or when the child is angry, distressed or anxious. All allegations should be treated seriously. Children disclosing sexual abuse should offered appropriate support including sexual health advice and input from Sexual Assault Referral Centre Services -Pebble House, Paediatric Sussex SARC (under 14 years of age) and  Sussex Children's Sexual Assault Referral Centre (Children's SARC) (over 14 years of age))

Discharging children from hospital

At the point of admission, a Complex Case Panel should be considered with appropriate health and social care professionals attending to ensure safe discharge planning and on-going care.

The role of  Section 117 aftercare should also be considered for eligible children and young people as part of discharge planning.

Any concerns about Significant Harm to a child within a hospital or health-based setting must be referred to Children's Social Care in whose area the hospital is located following the Making a Referral Procedure.

If there are allegations against people who work with, care for or volunteer with children, the LADO should be consulted Allegations Against People who Work with, Care for or Volunteer with Children 

When the child has been in hospital, or is planned to be, for three months or more, the appropriate health/hospital trust must notify the Responsible Authority i.e. the Local Authority for the area where the child is normally resident or, if this is unclear, where the child is accommodated. This is so that the Local Authority can assess the child's needs under the Assessment Framework and decide whether services are required under Children Act 1989 (Section 85).

Liaison with the child's placing authority may be required from admission to ensure effective planning, engagement and information sharing. Case responsibility for the child rests with the home authority, and the home authority should work in partnership with the Trust and with the host authority Children's Social Care.

In situations where there are safeguarding concerns about a child who is an in-patient these concerns should be considered prior to discharge with a referral to Children’s Services to establish; that the home environment is safe, the concerns by medical staff are fully addressed and there is a plan in place for the on-going promotion and safeguarding of the child's welfare - see the Making a Referral Procedure and Action on Receipt of Referrals Procedure. A multiagency professionals meeting or pre discharge strategy meeting should be convened as indicated to facilitate safe discharge planning and ensure that appropriate support is in place for the child and family following discharge.

Particular attention is required in the discharge planning of newborns from neonatal intensive care units since these babies are at high risk of re-admission to hospital. They need an adequately coordinated programme of follow-up, with particular attention to vision, hearing and developmental progress, as well as the co-ordinated input of services such as genetics.

Children with long-term conditions need preparation for the move from children's to adult services. All children with on-going health needs should have a plan developed with them for the transition of their care to adult services, which is coordinated by a named person. If there are child protection concerns for such a child, the LA vulnerable adults service should be informed as part of the transition planning.

Deprivations of liberty can occur in a hospital.

If the following things all apply then it is likely that a deprivation of liberty is occurring:

• The child is under the age of 16;
• The child is not 'Gillick competent' to consent to their care or treatment;
• The child is under continuous supervision or control*
• The child is not free to leave the place where they are receiving care or treatment;
• The care or treatment being received is imputable to the state; and
• The level of deprivation is not comparable to the level of restriction normally placed on a non-disabled child or young person of that age.

* Supervision and control is only deemed to be 'continuous' in nature if the overall impact on the child's life is significant.  The following are examples of situations when supervision and control is likely to be continuous:

• The child needs frequent or constant supervision for their safety;
• The child is only ever left on their own for short periods of time;
• Most aspects of life are decided by others (e.g. what to wear, what to eat, when to get up or go to bed, how to spend their time);
• The child is not permitted to carry out everyday tasks (such as bathing) without the support of others;
• The use of restraint or medication to routinely manage behaviour.

Not free to leave

A child is not free to leave if they:

• Are required to be there to receive the care or treatment; and
• Would be prevented from leaving if they attempted to do so.

Imputable to the state

The detention must be "imputable to the State". Care and treatment is imputable to the state if:

• It has been arranged or provided by the Local Authority; or
• It has been arranged or provided by the NHS; or
• A child's family has made their own arrangements for care, but if they didn't have the means to continue to do so the Local Authority would have (or be likely to have) a duty to meet their needs.

Physical intervention

The use of a physical intervention does not surmount to a deprivation of liberty when:

• The person providing care or treatment is using the restrictive physical intervention appropriately; and
• The restrictive physical intervention is not used routinely as a method to manage behaviour.

If the restrictive physical intervention is being used routinely as a way to manage the child's behaviour it is likely that this surmounts to continuous supervision and control,

Deprivations of liberty can occur in a hospital.

If the following things all apply then it is likely that a deprivation of liberty is occurring:

• The young person is aged 16 or 17;
• The young person lacks capacity to consent to their care or treatment;
• The young person is under continuous supervision or control:*
• The young person is not free to leave the place where they are receiving care or treatment;
• The care or treatment being received is imputable to the state; and
• The level of deprivation is not comparable to the level of restriction normally placed on a non-disabled young person of that age.

 *Supervision and control is only deemed to be 'continuous' in nature if the overall impact on the young person's life is significant.

The following are examples of situations when supervision and control is likely to be continuous:

• The young person needs frequent or constant supervision for their safety;
• The young person is only ever left on their own for short periods of time;
• Most aspects of life are decided by others (e.g. what to wear, what to eat, when to get up or go to bed, how to spend their time);
• The young person is not permitted to carry out everyday tasks (such as cooking or cleaning) without the support of others;
• The use of restraint or medication to routinely manage behaviour.

Not free to leave

A young person is not free to leave if they:

• Are required to be there to receive the care or treatment; and
• Would be prevented from leaving if they attempted to do so.

Imputable to the state

The detention must be "imputable to the State". Care and treatment is imputable to the state if:

• It has been arranged or provided by the Local Authority; or
• It has been arranged or provided by the NHS; or
• A child's family has made their own arrangements for care, but if they didn't have the means to continue to do so the Local Authority would have (or be likely to have) a duty to meet their needs.

Not comparable deprivation

The young person is likely to be deprived of their liberty when the level of deprivation is greater than the level of restriction normally placed on a non-disabled young person of that age.

See also Restrictive Physical Intervention Policy

Sections 85 and 86 are intended to apply to children:

• Who are not looked after*
• Are not resident at boarding school where they return home at holiday time;
• Are usually accommodated outside the local authority where they are ordinarily resident;
• Are accommodated by a health agency, local education authority, care home or independent hospice/hospital; and
• Are accommodated for a consecutive period of at least 3 months.

This group of children are vulnerable and the notification is intended so that additional checks are made by the responsible local authority where the child usually lives to ensure that their safety and welfare is monitored.

*Sections 85 and 86 do not apply to looked-after children who are accommodated by local authorities under Section 20 of the Children Act 1989 with the voluntary agreement of their parents, or subject to care orders under Section 31 of that Act. Where this is the case, there are different legal provisions and guidance under the Children Act 19893, in particular, the statutory guidance for local authorities on Care Planning, Placement and Case Review, which sets out the requirements for visits and reviews of a looked-after child.

Section 85

This applies to children and young people accommodated in England by Health Authorities and Local Education Authorities for a consecutive period of at least 3 months or with the intention to accommodate the child for such a period. The organisation who has arranged the provision – (the accommodating authority e.g. local authority, health authority, Integrated Care Board) shall notify the Director of Children’s Services (DCS) of the local authority where the child is ordinarily resident (the responsible authority) that they are accommodating the child. The accommodating authority shall also notify the DCS of the responsible authority when they cease to accommodate the child.

The responsible local authority has duties following notification of accommodation to:

1. Take such steps as are reasonably practicable to determine whether the child’s welfare is adequately safeguarded and promoted while they are accommodated by the accommodating authority;
2. Consider the extent to which (if at all) they should exercise any of their Children Act functions in respect of the child.

Section 86

It differs from Section 85 in a number of ways.

This applies to care homes and independent hospitals.

It places a responsibility on the provider of the placement (the person ‘carrying on the establishment in question’) to notify the DCS of the local authority where the provision is situated. Notification is required where a child is provided with accommodation in a care home or independent hospital for a consecutive period of at least 3 months, or with an intention to so accommodate. The provider must also notify the DCS when they cease to accommodate the child.

It is an offence not to notify the DCS as provided above.

The duties of the local authority following notification are to:

1. Take such steps as are reasonably practicable to determine whether the child’s welfare is adequately safeguarded and promoted while they are accommodated in the provision;
2. Consider the extent to which (if at all) they should exercise any of their Children Act functions in respect of the child.

 Content and Timing of Notifications

Notifications to Children’s Services will typically contain the following information:

• Child's name
• Child's date of birth
• Child’s address immediately prior to admission (or that of person with parental responsibility immediately prior to delivery)
• Date of admission to hospital
• Ward/Department, lead professional for the child and contact details
• Name and contact details of parents/carers

The notifying authority will also inform the parents/carers that the information has been disclosed to Children’s Services. Best practice dictates that notifications should be received at least three weeks before a child has been away from home for the statutory period 12 weeks so that Children’s Services interventions remain within timescales.

Section 85 Referral Process

All Section 85 notifications should be sent to the relevant safeguarding Integrated Front Door/Front Door/ Single Point of Access, see Local Contact Details 

Notifications are required when a child is likely to be resident within an institution for 12 weeks or more and also when a child is discharged after a 3 month period.

For Brighton & Hove see here - Placing and Visiting Children with Special Educational Needs and Disabilities or Health Conditions in Long-Term Residential Settings (proceduresonline.com)

Where children’s services have been notified under this section, they shall:

1. Take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while they are accommodated by the accommodating authority; and
2.  Consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.

If the child concerned is already a looked after child/child in care under the Children Act 1989, the allocated Independent reviewing Officer (IRO) will be responsible for convening a looked after review to consider the child’s circumstances.

If the child is not looked after,  Integrated Front Door/Front Door/ Single Point of Access,  would decide whether to undertake a social care assessment.

For further reading and information see the National Service Framework for Children, Young People and Maternity Services (NSF) 2004   and the Public Inquiry into Children's Heart Surgery at the Bristol Royal Infirmary 1984-1995: Learning from Bristol.