Injection of clarity needed

The legal status of children who stay in hospital for three
months or longer gives rise to considerable confusion among
managers in social services and social work departments. And the
number of young people affected is significant. NHS statistics for
the year ending 31 March 2000 suggest that in England around 2,800
children aged 0-19 on admission were discharged after spending more
than two months in hospital, as were more than 500 children in
Scotland. (A small number of these would have been discharged as
adults.)

A two-year study, commissioned by the Joseph Rowntree
Foundation¹ and carried out by the universities of
Stirling, Durham, Newcastle and York, investigated the numbers,
characteristics and circumstances of children and young people with
complex needs who spend long periods in health care settings.
Interviews were conducted in England and Scotland with 11 social
services or health managers responsible for these children.

The findings show a worrying degree of uncertainty about the
position of young people who find themselves in a hospital or other
health care setting for at least three months. One social services
manager believed such children become looked after under the terms
of the Children Act 1989. Another said children are not formally
looked after but nevertheless receive the same services and
safeguards as those who are. One Scottish social work manager did
not know whether children going into health care settings for
short-term (respite) care are looked after or not. And discussion
with the research team’s advisory group indicated that the
confusion is not confined to our fieldwork areas.

So what does the law say? Strangely – since there is no clear
reason why this should be so – the legal position differs north and
south of the border. In England and Wales, under section 85 of the
Children Act 1989, a health authority, NHS trust or local education
authority has a duty to notify the responsible social services
department when a child has been “provided with accommodation” for
at least three months – or where it is intended this will happen.
Local authorities then have a duty to find out if the child’s
welfare is being sufficiently safeguarded and promoted, and they
must decide whether or not to make use of any of their welfare
functions under the act. Under Section 86, residential children’s
homes, nursing homes and “mental nursing homes” have the same
duty.

Scottish health boards, NHS trusts and nursing homes have the same
duty, under section 36 of the Children (Scotland) Act 1995, to
children in health care settings – but only if a child has not had,
or is unlikely to have, contact with their parents for three
months. The confusion north and south of the border may partly be
due to the general wording of the legislation under the act, which
requires them to “consider the extent to which (if at all) they
should exercise their duties”. This could mean anything from doing
nothing to giving a child looked-after status. However, a child
cannot become looked after simply because she has been in hospital
for three months. This could change if, for instance, the child is
abandoned or abuse uncovered. Significantly, research from the US
suggests more abuse takes place within hospitals than in family
homes.²

Another reason for confusion may be that under other parts of the
legislation, in both England and Scotland, children become looked
after when they take a planned series of short-term care breaks,
each lasting more than 24 hours, in residential or family settings.
However, this rule does not apply to health care settings. This is
presumably because, although disabled children do still undergo
social admissions to hospital, this is generally recognised as poor
practice – often a last resort when no other short break is
available – and cannot be officially sanctioned.

There has been long been concern about the legal status of children
at residential schools -Êat least in England. In October 2001,
the chief inspector of social services Denise Platt sent a letter
to the Association of Directors of Social Services to clarify the
position. This stated that, where social services were contributing
to the cost of a placement, they were, in the Department of
Health’s view, providing accommodation under section 20 of the
Children Act. Thus the child should be treated as looked
after.

However, social services never pay for children to be in hospital,
so it could be argued that this group remains unprotected. Yet if
children spend long periods in hospital, surely they are entitled
to the same standards of care and protection as young people in
other settings. How can this be achieved?

Those with long-term illnesses or impairments are classed as
children in need under both the Children Act 1989 and the Children
(Scotland) Act 1995. This means local authorities must assess their
needs if requested to do so by a parent or guardian. Children do
not have a statutory right to have their needs met, but good
practice indicates that services should be provided to meet
identified need – albeit within reasonable resource levels. The
research found that some health staff in English councils were not
familiar with the framework for the assessment of children in need
and their families. Joint training with colleagues in social
services would help raise awareness and promote multi-agency
working. Other research has shown that the latter is crucial to
supporting families who look after children with complex needs at
home.³

In some cases, the results of assessment may indicate that strong
measures are needed to protect children and promote their welfare.
Where their circumstances warrant it and the appropriate criteria
are met – for example, where there are indications of abuse – then
children with complex needs, like any others, should be taken into
the looked-after system. In England this will occur through the
courts, and in Scotland via the children’s hearing system.

The research highlights a need for clarification, and perhaps
strengthening, of existing law. Disabled children, and those with
acute or chronic health conditions, must be treated in the same way
as other children. In addition, those north and south of the border
should enjoy the same levels of protection.

Who is responsible

Clare, aged 12, had been in a Scottish hospital for six months
when we interviewed her mother. Clare’s illness and the best
treatment were still being investigated, and doctors had said she
would be in hospital for another year. 

The family lived 150 miles away, but Clare’s mother had been
staying nearby for most of the preceding five months. Clare did not
have a key nurse. Her mother felt that social and recreational
facilities for children in the hospital were limited and that Clare
was missing her friends from home. A hospital social worker had
helped the mother to arrange a medical appointment for herself, but
the support on offer did not seem to go beyond that.  

As Clare had a long-term illness, her mother was entitled to
request a needs assessment, but the Scottish NHS trust had no duty
to refer her to a social work department for that purpose –
although, with the parents’ agreement, it would be good practice to
do so. Had Clare been in an English hospital, the NHS trust would
have had a duty to refer her to the local authority to ascertain
whether or not her well-being and safety were being adequately
safeguarded. Because Clare’s mother kept in constant contact,
however, again there was no duty on the Scottish trust to
act.    

Kirsten Stalker is a senior research fellow at the
Social Work Research Centre, University of Stirling and can be
contacted at  k.o.stalker@stir.ac.uk 
This article was co-written with John Carpenter and Clare
Connors of the centre for applied social studies, University of
Durham; and Rena Phillips of the social work research centre,
University of Stirling 

References  

¹ K Stalker et al,
Supporting Children with Complex Needs in Health Care
Settings, Pavilion Press, 2003 

² A Kendrick and J Taylor,
“Hidden on the ward: The abuse of children in hospitals”,
Journal of Advanced Nursing, Vol 31, 2000  

³ D Watson, R Townsley, D
Abbott and P Latham, Working Together? Multi-Agency Working in
Services to Children with Complex Healthcare Needs and Their
Families – a Literature Review, Handsel Trust Publications,
2002