Baroness Merron (Lab)

The overall concern is as I have identified. Yes, indeed, as always, it is a complex area that we need to unpick, but our main concern has to be for the welfare of the young person. The concern about the amendment is that, inadvertently, it would work in the opposite direction. To finish on Amendment 55—this might also be helpful to the noble Baroness, Lady Bennett—we are of the view that the Bill strikes the right balance between self-determination and responding to the needs and vulnerabilities of children and young people. For example, in the clinical checklist, many of the new treatment safeguards and provisions around care and treatment planning apply equally regardless of age and aim to ensure that treatment is more patient-led. Amendment 56, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, is somewhat similar to Amendment 55 in seeking to change the Mental Capacity Act to provide a mechanism by which children and young people can make an advance decision to refuse medical treatment for mental disorder. However, under Amendment 56, the child or young person’s advance decision would have legal weight only if they were detained under the Mental Health Act. As I have already discussed, while we recognise the principled position to extend the rights of adults to children, giving under-18s the right to make an advance decision to refuse treatment would conflict with a long- standing legal principle established by common law in the courts and codified in the Mental Capacity Act and would, therefore, mean that the amendment would not achieve its desired effect. This principle recognises that, in some serious cases, the courts, parents or those with parental responsibility may overrule the refusal of a child or young person, especially in cases where the child’s life is at risk. I reassure noble Lords that we are nevertheless committed to giving children and young people a voice as far as possible when it comes to decisions about their care and treatment. I refer again to the example of the clinical checklist, which requires consideration of a patient’s wishes and feelings, including those expressed in advance.