---

Mental Health Bill [Lords]

The Minister was clear, in as much as she is not going to accept my amendment No. 83 and asked me to withdraw it. However, I thought it worth clarifying why I tabled it. It is an attempt to make it clear that children under 16 who are competent to make decisions can either consent to or refuse to agree to their admission to hospital for treatment of mental disorder. If such a child does not agree to being admitted to hospital, this refusal cannot be overridden by a person with parental responsibility. The amendment achieves this by extending the remit of section 131 of the 1983 Act, which relates to informal admission, to cover children under 16 who are considered competent to make such decisions. If the amendment is accepted, a person with parental responsibility would not be able to agree to the child’s being informally admitted to hospital if the child is deemed competent to make this decision and is refusing to be admitted. Where a competent child refuses to agree to admission to hospital for treatment for mental disorder, the mental health professionals involved would need to consider whether the criteria for admission to hospital under the 1983 Act are met, and in a small number of cases the powers under the Children Act 1989 may be appropriate. As the Minister said, clause 40 of the Bill will amend section 131 of the 1983 Act. This was a Government amendment introduced in the other place, and it makes it clear that a 16 or 17-year-old who is capable of making such decisions may decide whether or not to be admitted to hospital for treatment for mental disorder, and that that decision cannot be overridden by a person with parental responsibility. That amendment was welcome and clarifies the position of 16 and 17-year-olds, but it is also important to clarify the position of Gillick-competent children. A child is generally considered Gillick-competent if they have sufficient understanding and intelligence to understand fully what is being proposed, and to be capable of making up their own mind on the matter. The Minister said that this issue is complex, and I agree; indeed, that is partly the motivation behind tabling this amendment. There is great uncertainty in the law, and this is an attempt to clarify it. There is a certain amount of confusion among practitioners responsible for the care and treatment of children and young people with mental health problems. It has commonly been accepted that the refusal of a Gillick-competent child or young person to accept medical treatment can be overridden by a person with parental responsibility for them. There is case law to that effect. In the area of mental health, that has led to great uncertainty among professionals. If the young people have complex mental health care needs, the professionals have to rely on parental consent in the face of disagreement from the young person. In some cases, that uncertainty has caused delay in making the appropriate arrangements for the treatment and care of the young child or person. I am sure that we would all wish to avoid that happening. If a parental decision overrules a child under 16, it can cause longstanding tensions between the child and parent. It is usually a stressful time for them and it seems unfair to place the weight of responsibility for that decision on the parent. There is also the question of respecting the rights of the child. If he or she is competent to make the decision, for example, to refuse admission to hospital, relying on parental consent to authorise the admission could breach the child’s right to liberty under article 5 of the European convention on human rights. That is acknowledged in the draft code of practice. Richard Jones, an expert in mental health law, states:"““It is likely that the Court would hold that a parental consent to the admission of a mentally competent child to a psychiatric hospital violates Art. 5 if the child objects to the admission.””" The Government’s approach appears inconsistent, because the Bill’s provisions on community treatment orders cover child community patients under 16 years of age, but do not address the problem I have described. The Department has previously indicated that case law has developed to give greater autonomy to children and young people and it is no longer the case that a person with parental responsibility can override the refusal of a child or young person, of whatever age, who has the capacity to make such decisions for him or herself. The indication was therefore that it was not necessary to include this issue because the case law is clear. For example, Lord Hunt of Kings Heath has said that"““more recent cases demonstrate the trend towards greater autonomy for young people.””—[Official Report, House of Lords, 15 January 2007; Vol. 688, c. 545.]" The Government’s reasons for taking that approach are outlined in Lord Hunt’s letter to Baroness Walmsley of 16 January 2007. But the case cited by Lord Hunt— R v. Secretary of State for Health (Axon)—relates to consent to advice and treatment and the duty of confidentiality. It considered how medical professionals should deal with young people who are Gillick-competent and want advice on sexual matters, but who cannot be persuaded to inform their parents or to permit the medical professionals to do so. It does not address the issue of a competent child’s refusal of medical treatment. The Minister mentioned guidance, and the most important point is that the draft illustrative code of practice to the Mental Health Act 1983, which has been published to help people to understand the Bill, removes references to the refusal of a Gillick-competent child or capable 16 or 17-year-old being overridden by a person with parental responsibility. However, it cites no case law to support that view nor does it provide any explanation for the change in approach. It would be helpful if the Minister could clarify when the guidance will be produced and what form it will take, because another publication, ““The Reference Guide to Consent for Examination and Treatment””, issued by the Department in 2001, claims that it"““sets out in detail the current English law on consent””." That document refers to parental consent overriding the refusal of a competent child or young person. Although it suggests that that power should be used rarely, it also highlights the lack of clarity on the issue by acknowledging that"““no definitive guidance has been given as to when it is appropriate to over-rule a competent young person’s refusal””." The issue is very confused and medical practitioners receive conflicting advice in different publications by the Department. The amendment was an attempt to avoid further confusion and provide an explicit statutory provision that those with parental responsibility cannot override the competent refusal of a child—