Baroness Merron (Lab)

I was referring more to situations, of which I know the noble Lord is aware, where there is a need for intervention. I think I used the word “overruling”, and I used some examples where there was a risk to life. So it is about application in that regard. I will look at that question in greater detail when I reflect on this area of debate and, if there is more that I can add to assist the noble Lord, I will be pleased to do so. Amendment 147 is in the name of the noble Lord, Lord Meston, supported by the noble Baroness, Lady Berridge, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Bennett. It would create a statutory test of competency for children in respect of decisions under the Mental Health Act. Under that test, competence for under-16s would be defined by reference to the functional test of capacity established in the Mental Capacity Act but without the diagnostic test, and by having due regard to the UN Convention on the Rights of the Child. The courts have already made clear that the approach of the functional test is not suitable for children. We do not think that the functional test is appropriate or compatible with the UN Convention on the Rights of the Child, which the amendment itself makes reference to. The amendment, as drafted, is therefore not considered to be in line with established case law. The noble Baroness, Lady Berridge, asked about the justification for not including a test in the Bill. As I have mentioned, Gillick is established in case law, not statute, and the code explains how the Gillick decision is to be applied. But this does not mean that the House of Lords decision is not mandatory. There is a duty to follow case law. It is not discretionary, as I know noble Lords are aware.