Inclusion Now 54 – Legal Question
“My daughter, who is autistic, has been detained in an ATU under the Mental Health Act s(3). She wants to continue at her mainstream school whilst on section. Participating in mainstream education and retaining her friendships provides a structure of purposeful activities that would improve her wellbeing and reduce the need for her to be institutionalised. She complains she is bored and is still self-harming as no appropriate education is provided on the ATU. The Responsible Clinician feels she will continue to self-harm in this situation. How can I get her out of the ATU and attending school?”
What is Section 3?
If someone is detained in accordance with Section 3 of the Mental Health Act, this allows for the detention of the person for treatment in a hospital against their wishes.
If the young person is under the age of 16, the Local Authority (LA) continues to have a very clear legal duty to provide suitable full time education. If it is inappropriate for this to be provided in a school then alternative arrangements must be made. This could include the provision of tutors in the ATU (Assessment and Treatment Unit) for example. It should not be the case that education simply ceases because a young person is detained under S3 Mental Health Act. The Mental Health Act Code of Practice states:
“Children and young people admitted to hospital under the Act should have access to education that is on a par with that of mainstream provision, including appropriate support for those with SEN. Practitioners and local authorities should work together to minimise any disruption to education, and in order to ensure that local authorities can meet their duty to provide suitable education, when a child or young person is admitted under the Act, they should be notified as soon as possible, ideally in advance of the placement…”
The duty to provide suitable full time education set out above only applies to those below compulsory school age (up to the end of Year 11). This does not mean there are no duties towards those over 16 but these duties do differ and there are stronger protections in place for those over 16 if they have an Education, Health and Care Plan (EHCP). If they do not have an EHCP and are over 16, LAs still have a duty to promote effective participation in education for 16 and 17 year olds including those under section.
If a child or young person has an EHCP, the Mental Health Act Code of Practice is clear that:
“the local authority who maintains the plan should be informed, so that they can ensure that educational support continues to be provided. If necessary, the plan may be reviewed and amended to ensure targets and provisions remain appropriate. The local authority should also be involved in creating the discharge plan…”
It may not be possible for your daughter to continue to attend her mainstream school as it is the decision of the Responsible Clinician as to whether she is allowed supervised leave which may enable her to attend and this would depend on her mental health and the nature and extent of her difficulties. If it is not possible then alternative education must be provided. If she is under 16 then this must be full time as long as this is in her interests. The professionals involved in your daughter’s care should work cooperatively with you and the LA to ensure her needs are met. Your daughter also has the right to challenge her section to the Mental Health Tribunal.
Sarah is a solicitor and partner at Simpson Millar www.simpsonmillar.co.uk