(d) Where child under 16 is not competent

MCA 2005
The MCA is generally not applicable to under 16s

Parental responsibility
If it is decided that the child is not competent, (and arguably even where the child is competent- see below), then admission and/or treatment may be authorised by someone with parental responsibility as long as it does not amount to a deprivation of liberty. Whilst it may be appropriate to rely upon parental consent in some circumstances, but it has limits. Consider the Scope of Parental Responsibility (SPR). If a child lacks competence and admission/treatment amounts to a deprivation of liberty, the MHA should be employed, if the criteria are met. The 2015 Re D decision held that a parent may be able to consent to their child’s confinement, but there are limits to this: a) the child lacks competence and b) the parents are acting within the SPR. (A Local Authority v D [2015] EWHC 3125) There is little guidance from the courts on the question of what parents can consent to, so it important that mental health professionals work with the guidance in the MHA Code and updates in case law on the scope of parental responsibility

If a competent under 16 year old refuses admission and/or treatment, or a non competent under 16 year old requires admission and /or treatment which is outside of the scope of parental responsibility then admission under the MHA will need to be considered if the criteria are met.

(c) Competent Children under 16

There is no presumption of competence. Whether a child under 16 can consent to treatment depends on the assessment of the ‘competence’ of the particular child to consent to the treatment in question. In legal jargon, the issue is whether the child is ‘Gillick competent’ (which came from the well known case involving Victoria Gillick’s challenge to the legality of the Health Authority giving children contraception without parental consent). ‘As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed’: Lord Scarman in Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112.

When considering whether a child has the competence to decide about the proposed intervention, practitioners may find it helpful to consider the following questions:

• Does the child understand the information that is relevant to the decision that needs to be made?
• Can the child hold the information in their mind long enough so that they can use it to make the decision?
• Is the child able to weigh up that information and use it to arrive at a decision?
• Is the child able to communicate their decision (by talking, using sign language or any other means)? (Code of Practice 19:34-37)

Practioners should note that this guidance is similar to the functional test for the assessment of capacity, but there is no diagnostic test, because a child may lack competence solely because they have not yet developed the ‘sufficient intelligence and understanding’ required

If the child is Gillick competent, then this means that the child can give a valid consent to treatment, and it would be ‘inadvisable’ to seek to override by relying on the consent ot someone with parental responsibility. Although in the past the courts have found that a person with parental responsibility can overrule their child’s refusal, such decisions were made before the introduction of the HRA and since then court decisions concerning children and young people have given greater weight to their views’.(MHA CoP 19.39)

(b) Where the 16/17 year old lacks capacity

MCA 2005

Since the MCA 2005 generally applies to 16 and 17 year olds, then the presumption of capacity in s.1 MCA 2005 will also apply. In assessing capacity s.2 and s.3 MCA 2005 should be applied. For the application of the MCA 2005 to under 18s, see chapter 12 of the MCA Code. For an overview of the application of the overall legal framework in the context of treatment for mental disorder, see chapter 19 of the MHA 1983 Code (2015).

What is the position where the young person, following assessment, is found to lack capacity for the proposed treatment?

Parental responsibility

If it is decided that the child lacks capacity, (and arguably where the child is capable- see below), then treatment may be authorised by someone with parental responsibility (PR) if it is appropriate to do so. However parental responsibility cannot authorise a deprivation of liberty. Practioners should seek the guidance of the Code of Practice in regard to decisions within the scope of parental responsibility (19;38-43)

Treatment may also be authorised under the MCA 2005 – as for adults- though note that a child cannot appoint an LPA, so those provisions will not apply. The MCA cannot authorise a deprivation of liberty and deprivation of liberty safeguards are not available to those under 18

If a capacitous 16/17 year old refuses admission and/or treatment, or a non capacitous 16/17 year old requires admission and /or treatment which is outside of the scope of parental responsibility then admission under the MHA will need to be considered if the criteria are met.

(a) Young Persons aged 16 and 17 years with Capacity

Statute law provides that those aged 16 or over are presumed ‘old enough’ to consent to admission and/or treatment.
This means that the young person with capacity can give a valid consent to treatment/ admission, irrespective of the views of someone with parental responsibility.(S131 MHA 83)

Family Law Reform Act 1969

S.8 [8.-(1)] of the Family Law Reform Act 1969 provides ‘The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.’

The Children Act 1989

This is the main other provision for those under 18. It is usually associated with local authorities and is used for interventions to safeguard the welfare and safety of children and young people. It does however have a relevance for health services and can sometimes be used by doctors.

• Part 3 of the Act applies to learning disabled or mentally disordered children
• If necessary e.g. the child is otherwise at risk, the child could be held against their will (deprived of liberty) under the Children Act, Section 25.
• This could be on a hospital ward or specialist adolescent unit as well as in local authority accommodation
• The Act cannot be directly used to ‘treat’ i.e. for interventions beyond care and support but authority for treatment could be sought from someone with parental responsibility or common law or the Child and Family Court
• After 72 hours an authorisation for prolonged deprivation of liberty must be obtained from a Court

Common law and under 18s

This requires a special mention because of the unique positon of children and young people and the extra sensitivity around their care. Some pointers to guide clinicians are that:

• The Family Law Reform Act 1969 gave 16 and 17 year olds a statutory right to consent to treatment independently of their parents
• The concept of ‘Gillick Competency’, deriving from a piece of case law, empowers some under -16 year olds also to consent to treatment independently of parents
• Under 16s who are not Gillick-competent and are refusing treatment could have their refusal over-ridden by a parent or a court and treatment could then be enforced as necessary in the view of a doctor or other health professional
• Gillick competent under-16s and 16/17 year olds could have their refusal of treatment over-ridden but this is less likely to happen in practice due to human rights concerns
• If it did lawyers are likely to recommend recourse to the courts rather than reliance on parents because of the human rights concerns
• The Mental Health Act 2007 made it unlawful to admit 16/17 year olds to psychiatric hospitals on the consent of a parent

This means that a 16/17 year old can only be treated on the basis of their valid consent or after an application under the MHA

Common Law

This term simply refers to non-statutory law i.e. case law as made by judges. Some common law relevant to care and treatment has been replaced by the MCA, but the common law power to prevent loss of life or serious harm still applies in health settings. Usually for common law to be used the following should apply:

• Treatment, possibly involving detention, is necessary in an emergency
• To prevent loss of life or serious harm to a person or to others
• On a short-term basis, since in the longer-term the MCA or MHA or a court order would have to apply
• Irrespective of capacity, which it may not always be possible to assess
• Use of common law powers is subject to an undefined threshold around the seriousness of the incident and the urgency of the need for action

Deprivation Of Liberty Safeguards (DoLS)

If the provision of care or treatment under the MCA involves more than restrictions on liberty deprivation of liberty may apply. DoLs is a statutory power that was added to the MCA in 2007. Currently it applies to hospitals and registered care homes only. For other cases an application to the Court of Protection may be made.
DoLS is appropriate if a person is subject to a care and treatment regime that they cannot consent to and that involves deprivation of liberty

• Following a Supreme Court rulin (usually referred to as Cheshire West) the definition of deprivation of liberty now depends on what is known as the ‘acid test’ i.e. the person is deprived of liberty if they are not free to leave and are subject to continuous supervision and control
• Where deprivation of liberty applies the person must either be detained under the MHA or be referred to the Local Authority for assessment under DoLS.
• This interface is not always clear, especially in psychiatric hospitals, but a guide is that if the person lacks capacity but is compliant DoLS should normally be used but if not this point towards the MHA
• Since the MHA cannot be used in most care homes and
• A DoLS authorisation constitutes an authority for deprivation of liberty not for treatment but treatment could be given under common law doctrine of necessity/S. 5 of the MCA
• A DoLs assessment involves at least two professionals, one of them a doctor, and if deprivation of liberty is held to apply results in an authorisation for a specified period with or without conditions

Mental Capacity Act 2005

As a piece of legislation this is of still greater importance than the MHA. It affects more people and is as powerful, more so in some ways as its remit covers both physical and mental disorder as well as a broad range of welfare decisions including financial.
The MCA allows decision-making where someone is shown to lack the cognitive functioning to make the decision themselves, known as lack of mental capacity. This is decided according to a definition of capacity in S2 and a functional test in S3 of the MCA. In regard to medical treatment it can be given if it:

• It is in the person’s best interests and
• Is not contrary to a valid Advance Decision or valid objection from a Lasting Power of Attorney or Deputy
• Treatment or care may be provided under the common law doctrine of necessity using the MCA Section 5 as a defence against liability.
• Restrictions on liberty may apply and reasonable restraint may be used (Section 6)

Mental Health Act 1983

Detention under the MHA may be applicable where:

• The person has a mental disorder within the meaning of the MHA and:
• Is refusing or is incapable of consenting to treatment for that disorder
• Requires inpatient assessment or treatment for that disorder
• Would be a risk to their health or safety or to the protection of others if they did not receive assessment or treatment
• Cannot be assessed or treated in any other and less restrictive way such as being treated voluntarily in the community or being admitted to hospital voluntarily.

The MHA is usually associated with compulsory admission to hospital for treatment. Most often this will mean use of Sections 2 or 3. Both allow for compulsory treatment.
However, it also provides options for a supervisory framework for care and treatment in the community which stops short of compulsion. There are 3 options as follows:

• Following detention on S.3 or other unrestricted treatment section the patient can be discharged on to a Community Treatment Order (CTO) with conditions around treatment and welfare and a liability to easy recall to hospital if the patient is in-need of treatment.
• Either following detention in hospital or directly in the community without having been in hospital at all the person can be referred to Guardianship, with similar conditions to a CTO but without the power to recall to hospital.
• If the person has been detained via the criminal justice route and has been placed on a restricted detention section they can then be discharged on a Conditional Discharge. This involves strict conditions with immediate recall to hospital if the conditions are not met and there is a need for hospital treatment.