Contribution
My Lords, as the noble Baroness has just said, my Amendment 147, which deals with competence and decision-making, would provide what I suggest is a necessary statutory test to determine the decision-making competence of children under 16 years of age in all matters under this legislation for which such a determination is required. The Joint Committee on the draft Bill pointed out, echoing what was said in the independent review of the 1983 Act, that attempts both to protect and to empower children have produced a complex mixture of statute and case law with no single method of assessment and no consistent criteria to establish either capacity or competence. This is a particular disadvantage for children and young people, who do not have the benefit of any statutory presumption of competence such as that which applies to adults.
Importantly, the amendment, although offering a test, does not create any presumption of capacity in a child. Moreover, the reason for the child’s inability to decide is irrelevant. It would, however, require that those determining whether a child is competent must give reasonable grounds for reaching that conclusion. It is important to emphasise that this amendment is concerned only with how to assess whether a child is competent and not with the consequences of any determination that a child is competent.
This Bill has been produced with numerous references to capacity and/or competence in various contexts, including consent to CETR meetings, “disclosure of information”, “consent to treatment”, making advance choice decisions,
“terminating the appointment of a nominated person”
and involving “mental health advocates”. However, the Bill is currently silent on what is meant by “competence” and how it should be determined.
The existing statutory test in the Mental Capacity Act does not apply to those under 16. The separate concept of Gillick competence—it is derived from the pivotal case of that name, decided in 1986—requires inherently subjective assessments of the child’s understanding and maturity. I speak with some experience of having to decide whether or not a child is competent to participate independently in court proceedings concerning them. That exercise sometimes feels rather paternalistic and is, as has been pointed out, really subjective, with the test in Gillick offering no guidance on the extent to which adjustment should be made for factors such as peer pressure, drug and substance abuse, family stress, emotional disturbance or illness.
More recent case law shows that the Mental Capacity Act can be used to inform an assessment of child competence, but it is not mandatory to do so. The factors set out in this amendment to indicate a child’s ability to decide are the features carefully identified by Mr Justice Cobb, as he then was, in a case decided in 2017 concerning the difficult question of whether or not a girl under 16 had the capacity to consent to her child being adopted.
I therefore suggest that there is now a need for clearer and more rigorous guidelines—structured guidelines that are not just mechanistic checklists—for mental health and legal professionals to work with. The assessments that have to be made of a child’s ability to understand and weigh relevant information need to be decision-specific, child-specific and time-specific, and they have to recognise that competence can fluctuate as well as evolve. These are not straightforward assessments and are certainly not a mere formality.
A statutory test would be welcomed by practitioners and the courts. This is too important to be left to the code of practice; such codes are intended to reflect and supplement the law, not to create law. A clear test in the statute would only be of assistance to practitioners and would allow children to benefit from the safeguards within the Bill.