Mental Health Bill [HL]

It has been an interesting debate. I hope that I can allay the fears expressed by noble Lords. On the question of the law, we first point to the Family Law Reform Act as setting out such persons as are assumed to be capable of consent on their own behalf to any form of treatment. Where they do consent, a person with parental responsibility cannot override it. I have listened with interest to the comments made about case W. That is an old case; we think that more recent cases demonstrate the trend towards greater autonomy for young people. In view of the comments that I have heard tonight, I undertake to put that together and write to noble Lords, so that they can see how we have reached that view. Section 131(2) of the Mental Health Act builds on what we believe to be the law in relation to the Family Law Reform Act to make it clear that young people of 16 and 17 in addition can agree to being admitted to hospital for treatment and treated informally on their own behalf, regardless of the wishes of the person with parental responsibility. I also understand that it is important for us to be able to clarify the law if there is confusion among practitioners. The proper place to clarify the law would be through the code of practice. Our policy on the code is towards giving the views of young people greater autonomy. The draft revised code makes it clear that a 16 or 17 year-old should not be treated for mental disorder on the basis of consent from someone with parental responsibility. If they refuse to give consent or are unable to do so, they can be treated under the Mental Health Act. The code also identifies the cases, albeit likely to be rare, in which it may be appropriate to consider using Section 25 of the Children Act. The guidance in the code of practice also goes on to state that the views of a Gillick-competent child under 16 should not be overridden by someone with parental responsibility. We believe that the issues concerning consent for treatment of under-18s are best dealt with through guidance in the code of practice, where we can go into greater detail in this complex and important area than in legislation. It can also be updated more easily in line with developments in case law and professional practice. From what I have heard this evening, one can see the critical importance of ensuring that professionals are clear on what the law is and what their competence is to make decisions in that context. There is clearly support for 16 and 17 year-olds capable of expressing their own wishes to have their consent or refusal to consent to treatment and admittance to hospital for mental disorder protected in the Bill. Where they consent to admission and treatment in hospital for mental disorder, their consent should not be overridden by a person with parental responsibility for them. Where they do not consent to admission and treatment in hospital for mental disorder, their lack of consent should not be overridden by a person with parental responsibility for them. In view of what I have heard tonight, I will see whether the Government should table an amendment in this area. I will look at the issue of case law, in order to update the House on our current view of where the law stands, but I also commend to noble Lords the importance of using the code of practice as probably the most important way of influencing practitioners and informing them of the position with regard to 16 and 17 year-olds.