Recommendation 18

HM Government Rejected

It is our assessment that any legislative change which sought to introduce a statutory test in under the MHA, could have unintended consequences for how competence is assessed in other settings, in particular mental health settings more broadly, including informal inpatients, and other linked areas of decision making. Introducing a statutory test for under-16s solely under the MHA risks creating additional confusion within wider mental health settings and other settings. This could lead to the creation of two different tests depending on whether or not an under-16 was detained under the MHA. It also risks undermining the principles of Gillick competence, which apply broadly across health and social care contexts—including reproductive health and children’s services—and could impact the wider legislative framework relating to children. Fundamentally, we are concerned that in seeking to provide clarity, the creation of two different competence tests is likely to cause further confusion and uncertainty on the ground for decision makers and children, and, have negative unintended consequences on the ability of children to exercise choice and autonomy over their care and treatment. The MHA Code of Practice already offers guidance on assessing competence in under-16s. We will consult on updating this guidance in the revised Code to improve the practical application of Gillick and assessment of competency.