Baroness Tyler of Enfield:

Moved by Baroness Tyler of Enfield

55: Clause 19, page 28, line 27, at end insert—“(7) In section 24 of the Mental Capacity Act 2005 (Advance decisions to refuse treatment: general), after subsection (5), insert—“(6) For an “Advance decision” in relation to a treatment for a mental disorder under the provisions of the Mental Health Act 1983, a person may make a decision once they have reached 16.””Member’s explanatory statementThis Amendment extends advance decisions to those who are 16 and over.

My Lords, in moving Amendment 55 I will speak to Amendment 136; both are in my name. This is another very important group, about children and young people’s competence and decision-making. Amendment 55 is about extending advanced decisions to those who are aged 16 and over. I recognise that there is also an important amendment from the noble Earl, Lord Howe, about advanced decisions—a similar issue, but perhaps taking a different approach.

The Bill will give legal weight to advance decisions within the Mental Health Act, which I very much welcome. Adults will be able to record their advance refusal of a particular treatment if they lose capacity. An advance decision will have the same effect as a refusal of treatment made with capacity and will ensure that the individual can access enhanced safeguards before the treatment can be given. Although advance choice documents, where advance decisions will be recorded, will be available to adults of all ages, the Bill as drafted does not permit under-18s to make advance decisions. As such, someone aged under 18 could say in an advance choice document that they refuse a particular treatment if they would not want it, but that would have limited weight. Specifically, it would mean that, if the child or young person lacked capacity or competence to consent to treatment when it was offered, their advance refusal would not give them access to the enhanced treatment safeguards that are available to adults, including tribunal appeal.

This means that, rather than being on an equal footing, children and young people would be disadvantaged compared with adults. Therefore, I see this very much as part of parity of treatment between children and adults. I am strongly of the view that the safeguards that flow from advance refusals of treatment should also be made available to young people. This is what my Amendment 55 is designed to do.

I add one more general point. We still have work to do in Committee to strengthen safeguards and protections for children and young people in mental health in-patient care. There should be a general principle of parity of treatment between children and young people and adults. Of course I recognise that some distinctions have to be made due to the legal status of under-18s, but I said at Second Reading, and it remains my view, that this Bill was never really designed with children and young people in mind, yet it can affect them greatly. In responding, can the Minister set out how much input DfE Ministers and officials have had on the drafting of the Bill?

It will probably help if I explain that Amendment 136 is closely related to Amendment 147, tabled by the noble Lord, Lord Meston, whom I have had the opportunity of corresponding with. I do not want, in speaking first, to pre-empt what the noble Lord will say, but I need to reference his amendment to explain mine. I share the concern that the Bill does not include a test to determine the ability of children under the age of 16 to make decisions—in other words, whether they are competent. Without such a test, this age group will not be able to benefit fully from the rights and safeguards included in the Bill; the question is how we best get there.

Under-16s are currently at a disadvantage. Whereas all those aged 16 and over are presumed to have capacity to make decisions for themselves unless evidence shows otherwise—in which case the Mental Capacity Act kicks in—under-16s are presumed to be unable to make decisions for themselves unless they demonstrate that they are competent to do so. There is also no clear and consistent approach for determining whether a child is competent. Although the concept of competence is generally understood, how to assess a child’s competence is not.

That is why I have a lot of sympathy with the amendment tabled by the noble Lord, Lord Meston, which would insert a test for determining the ability of someone aged under 16 to make decisions under this legislation. His amendment explicitly limits this test to decisions made under the mental health legislation and is explicitly focused on the criteria with which to determine whether a child is competent. No doubt he will explain his amendment far more eloquently than I could ever do. My amendment would require the Secretary of State to review whether a statutory test for under-16s would be expedient for the purpose of this Act and for mental health legislation more generally. It is very much a stepping stone towards that position and, I hope, supports change in this area.

Such a review is important because it could address some of the concerns that have been expressed in this area. It could include whether such a test should be in the Bill or in a code, how best to make it clear that a test will be specific to the scope of legislation rather than having wider application, and how such a test would help with the successful implementation of the Bill. It could help to establish that the test is specific to whether a particular child can make a particular decision at a particular time, and set out what information is required.

I am aware that, in some of our broader discussions, concerns have been raised about the possible unintended consequences of such a test in relation both to parental responsibility and to a child being seen as Gillick competent—that is, they have the ability to understand the decision. I feel that a review would be helpful in looking at these issues and addressing those concerns head-on. In that way, we would make important steps in ensuring that the whole of the mental health reforms work properly and fairly for all children and young people. I beg to move.

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.

I respectfully suggest that Amendment 136, spoken to by the noble Baroness, Lady Tyler, is too cautious. It calls for a review to be undertaken in 12 months to consider the expedience of a statutory test. Surely the pros and cons, and scope, of a statutory test have already been well canvassed. It is not clear to me what would be gained by further delay and review. I was tempted to suggest that a review, if not kicking the topic into the long grass, would at least kick it into touch. If we have learned anything about the Bill, it is that much of it will not be implemented with anything near the speed of light. Surely this is one topic that can now be confidently grasped and not deferred.

With the wealth of his experience in dealing with children, could the noble Lord give the House a feel for whether, when assessing the competence particularly of children from a younger age group, there are cases where they understand the situation that is explained to them but, when a decision is subsequently required, there is less clarity on how to make it themselves? I ask that because I know that, often, certain adults on the autism spectrum in a similar situation can fully comprehend a situation that is explained, if necessary, and have capacity, but making the decision between one, two or more choices is much more problematic.

My Lords, I understand the dilemma. The point I emphasise is that, in deciding this, one has to be clear that the child has a proper explanation of the ultimate decision that has to be made. It is to that end that the competence has to be assessed.

For those of us who are not anywhere near as legally expert as the noble Lord whose wise deliberations we have just heard, could he clarify the Amendment that talks specifically about ring-fencing this new test for the Mental Health Bill? To what extent would that be consistent or not with, for example, the ruling of the Court of Appeal in Bell v Tavistock—the NHS trust—in the case of puberty blockers, which concerned the interpretation that the High Court had given to the Gillick test?

I am tempted to say that I really do not know. That was a faster ball than I expected to receive. I think the answer is that the case law would be consistently applied, even as it stands now, but would undoubtedly be aided by a statutory test. Whether it would apply in cases such as that which the noble Lord just mentioned, I do not know. The purpose of the Amendment is to provide a test for decisions that have to be made consequential upon this legislation, not other situations.

My Lords, I entirely agree with what the noble Lord, Lord Meston, just said. The two interjections were very interesting but they do not really affect the guidance. That is crucial. The question asked by the noble Baroness, Lady Browning, as to whether you can understand it but cannot make a decision, may well affect how the person applying the guidance does so. That would be one of the issues for whoever has the uncomfortable task of making the decision.

I think the noble Baroness, Lady Tyler, is too cautious. If we go back to the Mental Capacity Act 2005, there is clear explanation and guidance in primary legislation as to how anyone who has to judge capacity is to do it. What we are talking about here—incompetence—is quite simply capacity. For some reason, which I find quite difficult, we seem to think that children under 16 have competence or do not, but over-16s have capacity or do not. It would have been far more sensible to use the same word for every person who will, in fact, be judged on whether they do or do not have capacity to make a decision of great importance, as it would be, in relation to mental health issues. I find it very odd.

However, and equally importantly, if it is in primary legislation for over-16s, why on earth would it be in guidance for under-16s? If it is good enough for over-16s, why is it not good enough for under-16s? The way the noble Lord, Lord Meston, has set this out seems admirable. It is very close to the Mental Capacity Act. I take and entirely agree with the point made by the noble Baroness, Lady Tyler, but the Government seem to have ignored children to a very large extent, although children are a very important part of this Bill. I do not blame the Minister, because she did not draft it, but she has to bring it to us. I tabled a lot of amendments about parents and people with parental responsibility because they are largely ignored; I will speak about that later. But where we are dealing with children aged under 16, it is essential that they are treated in the same way as everybody else and that has to be in the Bill—in primary legislation.

Young people have had to deal with these issues ever since Lord Denning was presiding in the Court of Appeal in Gillick, but he did not help us at that stage as to how actually to deal with it. Like the noble Lord, Lord Meston, I have also had to make decisions as to whether under-16s were giving me advice that I thought was really worthy of listening to. Children of five can give extraordinarily good explanations, though I do not expect them to give them on mental health issues. I urge the Minister: it is crucial that everyone whose capacity is a matter at issue has it treated in exactly the same way. Therefore, to put it into guidance really will not do.

I will also speak on Amendments 55 and 56. I am very concerned about children. Bear in mind, however much we treat children aged over 16 with respect and as having the capacity to make decisions, and however much we listen to them, as we should listen to all children, there are stroppy teenagers—we all know about them—who, for one reason or another, will not do what adults tell or advise them. I am very concerned, and I am not quite sure about this because I am no expert on mental health legislation, that if a 16 year-old has the right to make advance decisions and they just say, “I do not want any injections, I do not want any pills, I absolutely refuse to have any treatment”, then unless there is an ability to override them they will have capacity and cannot be ignored. One has to view advance decisions for 16 to 18 year-olds with some degree of care. I am not saying that they should not happen, but I am not happy about them being universal and without some ability for them to be overridden.

My Lords, I have put my name to Amendment 147. I find myself in agreement with much that has been said. It has been a consistent recommendation to His Majesty’s Government since the independent review that there should be a statutory test of competence or capacity for those aged under 16. Of course, that means it should be in the Bill. This has been supported by the Children’s Commissioner of late and by the Children and Young People’s Mental Health Alliance.

Therefore, I was disappointed to see the code of practice solution outlined in the Minister’s policy paper that we received yesterday. As the noble and learned Baroness, Lady Butler-Sloss, outlined, in the Mental Capacity Act, which applies to over-16s, there is a functional capacity test followed by the secondary mental impairment test. I also agree with the noble Baroness, Lady Tyler, that under-16s are presumed to lack capacity, so you start from the opposite premise of the Mental Capacity Act for over-16s, who are presumed to have capacity. That puts them at an advantage: it has to be taken from them, rather than being given to under-16s.

I agree with the comments of the noble Lord, Lord Meston. Great work is being done by clinicians up and down the country to apply Gillick competence tests, but throughout my time on the Joint Committee we did not seem to know whether there was any review or assessment as to how and when it is applied in hospitals and healthcare settings up and down the country. I fail to understand the Government’s reluctance to put this test in the Bill. How is such a reluctance compatible with one of the four guiding principles—to treat the person as an individual? Perhaps the Minister could outline the reasoning for this omission.

I also want to point to the problem of relying on the code of practice made under Section 118 of the Mental Health Act. On page 13 of the code of practice, there is a very clear description of the code and its legislative function:

“Whilst the whole of the Code should be followed, please note that where ‘must’ is used, it reflects legal obligations in legislation, (including other legislation such as the Human Rights Act 1998) or case law, and must be followed. Where the Code uses the term ‘should’ then departures should be documented and recorded”.

It then refers to explanatory paragraphs and continues:

“Where the Code gives guidance using the terms ‘may’, ‘can’ or ‘could’ then the guidance in the Code is to be followed wherever possible”.

In the Minister’s policy statements, there is often the use of “will”, which, as far as I understand, is a “must”. Bearing in mind what I just read, unless something is in the Bill then even putting this test into the Bill will mean that it is only, at the very best, a “should” and can be departed from. Obviously, that applies across all of the places in which the Minister relies on the defence of, “We’re going to put it in a code”. I note that it is a code that we have not seen and will be consulted on only after the passing of the legislation.

Dealing again with the amendment, it is important to determine capacity and, as Mind has said in its excellent briefing, the question of whether a person has capacity or competence to make the relevant decision is fundamental to the operation of key rights and safeguards. To build on the point from the noble Lord, Lord Meston, as I understand it the Bill contains 13 references to competence. It deals with such important matters as the appointment of their nominated person and, if you are under the age of 16, your freedom to choose someone other than the person with parental responsibility depends on your having competence. There is also the ability to refuse medication. To deal with the point made, I think, by the noble Lord, Lord Stevens, who was concerned about leakage across, this is a very particular piece of legislation with such coercive power, as I am sure he is aware, that the case for putting the test in the Bill to open up those safeguards for young people is very important.

The Government’s response to the consultation stated:

“We are committed to ensuring that children and young people benefit from the reforms we plan to introduce”.

Will the Minister therefore explain again how the lack of a statutory test is consistent with maximising that choice and autonomy?

My Lords, I rise briefly having attached my name to Amendment 147, to which the noble Baroness, Lady Berridge, was just speaking so powerfully. I will not repeat anything that people far more expert legally than me have already said, but will just make a couple of small points.

I start by agreeing with the noble and learned Baroness, Lady Butler-Sloss. I have met many 10 year-olds who have a very clear-eyed vision of the world and their place in it, and they should certainly be given a voice. This is something that I have spoken about in other Bills. I think particularly of the Domestic Abuse Bill, now an Act, where there was a strongly minded debate around alleged parental alienation and the way in which children’s voices have sometimes not been listened to and they have been forced to do things strongly against their will and desires.

It is important to say that it is not just morally right that children who have the ability to do so should have a say about what is happening to them and a say in all the other ways that the noble Baroness just outlined. That moral rightness is powerfully and importantly attested to in the fourth part of this amendment, which refers to the UN Convention on the Rights of the Child. It is important that we keep referring to such conventions, but it is also important for people’s health and well-being to have a sense of agency and a sense that this is their life in which they are able to live and make choices. We heard in the earlier group from the noble Earl, Lord Howe, about Blooming Change and how people experience life being done to them and treatment being done to them, rather than it being something in which they actually have a say.

Stressing that I am not a legal expert, I was really attracted by the way in which this amendment is drafted, particularly subsection (3), which rightly puts an onus on professionals to make sure that they explain this in ways that are accessible to the child. We all know that medical and legal terminology may not be accessible to adults, let alone children, but the suggestion of simple language, visual aids or other means is a real direction to professionals to say that they have to facilitate, by any practical means possible, the chance for that child to have agency. That should be at the core of the Bill, particularly for the children who were drawn to our attention on the other group, who are some of the most vulnerable people in our society and who face potentially being locked up against their will. We have to give them as much voice as possible, which is what this amendment would do.

My Lords, I make two specific points in response to what the noble and learned Baroness, Lady Butler-Sloss, said. The amendments refer to Section 24 of the Mental Capacity Act, but if one goes on to Section 25 of that Act, there are a number of conditions that have to be fulfilled in order for a record of an advanced decision to be deemed valid. I think it is worth pointing out subsection (5) to noble Lords, which states:

“An advance decision is not applicable to life-sustaining treatment unless … (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and (b) the decision and statement comply with subsection (6).

Subsection (6) states that it must be,

“in writing … it is signed by P or by another person in P's presence and by P's direction … the signature is made or acknowledged by P in the presence of a witness, and … the witness signs it, or acknowledges” it to be true.

I am trying to convey to the noble and learned Baroness that these are very formal procedures. They are not taken lightly. That applies to somebody who is 18 and one day, and I think it should be applied to somebody who is younger than that with as much seriousness.

Noble Lords and others have referred to these decisions as advance decisions to refuse treatment. Advance decisions can also be for treatment. People can say in an advance decision, “I know that when I am in an episode of illness, I may be saying that I do not want medication. At this moment in time, when I have capacity, I wish it to be put down in writing that if I do that, you are to ignore it”.

I would like us to have a fuller appreciation of what it is we are talking about, although I do not detract from any of the considerations that people want to bring in about young people.

My Lords, I venture to say that all the amendments in this group approach similar issues in not dissimilar ways. The most compelling point that perhaps should be underlined in relation to them all is that implied by the amendments in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston: that there is no earthly reason why the law should prohibit a young person with sufficient decision-making competence recording a valid expression of their wishes and preferences around their own mental health care, and the logical consequence of that is the need for a competence test, or a capacity test for child patients.

My Amendment 56 seeks to address an issue allied to those addressed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston. As it stands, the Bill does not permit a 16 or 17 year-old to make a valid advance decision about their mental health care. An advance decision has the same effect in practice as a capacity decision to refuse a particular treatment. It is important to understand that under the Mental Health Act, making an advance decision does not give someone an unfettered right to refuse that treatment. Treatment can still be administered notwithstanding the advance decision, albeit only if certain strict conditions are met. Nevertheless, an advance decision made by an adult patient carries a huge amount of weight, and placed within or alongside an advance choice document, which enables a patient to outline their treatment preferences, it does a great deal to ensure that the patient is placed genuinely in the driving seat when it comes to their mental health care and treatment.

Under the terms of the Bill, young persons aged 16 and 17 will be able to execute an advance choice document, but what they cannot do is to make an advance decision to sit alongside it. That means that an advance choice document that purports to include an advance decision made by an under 18 year-old is likely to carry a good deal less weight than such a document executed by an adult. My amendment invites the Government to put this right.

An associated but distinct issue arises in relation to children under the age of 16. I will not repeat the excellent arguments for a competency test put forward by the noble Lord, Lord Meston, and the noble Baroness, Lady Tyler, but I agree entirely with what they have said. The point that resonates most with me in the context of a Bill that places great emphasis on patient empowerment is that in the absence of a statutory competence test to determine a child’s decision-making ability, it will, in practice, be impossible for someone under 16 to execute an advance choice document and then expect professionals to take due notice of it.

Amendment 147, tabled by the noble Lord, Lord Meston, seems to me to be as good as it gets in articulating the key requirements necessary to establish decision-making competence in a child. My only hesitation about his amendment is that it invites us to place the terms of a competency test in the Bill without further ado. For a measure of this significance, I tend to feel that any final formula for a competence test merits a prior consultation exercise, and then encapsulation in regulations approved by Parliament. I fully agree with my noble friend Lady Berridge that relying on a code of practice in this context would be wholly unsatisfactory. For what it is worth, I suspect that a consultation would be likely to throw up some further considerations that would need to be factored in to the formula. That aside, I very much hope that the Minister will be receptive to the arguments she has heard. If we can deliver this added empowerment to children and, as regards advance decisions, to 16 and 17 year-olds, the prize will be very great, and I hope she agrees that the challenge is one we must address.

My Lords, if the noble Earl is suggesting that the provisions in the Amendment of the noble Lord, Lord Meston, should go either to consultation or to further consideration, will we not end up in a situation where this Bill becomes law and nothing is done to advise anyone, on the face of the legislation, how to deal with those under 16, although it is there for those over 16? Why should, in this particular instance, those under 16 basically be discriminated against? Whether or not they have capacity is the point of the amendment.

I am grateful to the noble and learned Baroness. I hope it was implicit in what I said that I would look to this Bill to include an order-making power that would enable regulations to be laid in due course that would cover not only 16 or 17 year-olds but also those under 16, and Parliament would then approve them. No doubt this is a matter that we can discuss further after this, but I hope that the point of principle is clear, which I fully support, that this issue needs to be sorted through this Bill.

I have listened to the noble Earl’s argument carefully, and in principle I support what he is trying to do. The only problem with leaving the matter to a statutory instrument, rather than putting it on the face of the Bill, is that it is far easier for the Secretary of State to change that, even despite the will of Parliament, based on the way that Parliament works. Why could it not be on the face of the Bill, to give absolute certainty, rather than in a statutory instrument, which normally gives flexibility and powers to a Minister?

There are two answers to that. First, it is generally unthinkable for a Government to lay regulations without first having consulted the relevant parties. Secondly, if we are honest, putting something on the face of a Bill is not the whole story; there would need to be proper clinical guidance published alongside that for practical purposes for hospitals and elsewhere.

My Lords, I thank all noble Lords for examining the important issues that have been raised in this group of amendments.

Amendment 55, in the name of the noble Baroness, Lady Tyler, supported by the noble Lord, Lord Scriven, seeks to change the Mental Capacity Act to allow young people aged 16 or 17 the ability to make a binding advance decision to refuse medical treatment for mental disorder. I shall set out some concerns about the amendment that may be helpful.

First, the amendment would mean that a young person who is not detained under the Mental Health Act could refuse a mental health treatment, even if it was life-sustaining. While the Mental Health Act and the Bill currently provide safeguards that enable a person’s advance decision to be overruled, detention under the Act may not always be appropriate. For example, if a 16 year-old is left very unwell following an attempted suicide, then currently they may be given treatment on the basis of what is in their best interests, under the Mental Capacity Act, if they lack capacity to consent at the time. However, under the amendment, if the 16 year-old had made an advance decision to refuse treatment necessary for their recovery or to sustain their life, then they might need to be detained under the Mental Health Act simply so that their advance decision could be overruled. This is important in terms of timely access to treatment and to avoid loss of life, of course.

Secondly, to take forward this amendment would be to deviate from a long-standing legal principle established by common law in the courts. With this in mind, there is a risk that a young person’s advance decision would be challenged by the parent and overturned by the courts, making this new right potentially meaningless or at least somewhat unclear.

Thirdly, the amendment could result in an asymmetry with physical health treatment—which I know the noble Baroness would not wish to see, and I completely understand that—regarding whether treatment could be refused in advance. This is likely to create some confusion among health practitioners, especially where it is not clear whether the purpose of the treatment is to address a physical illness or a mental illness or both. An example would be the use of nasogastric tube feeding under the Mental Health Act to treat a young person’s eating disorder. This confusion could potentially result in legal challenge and a delay in treatment, which would of course potentially risk a young person’s health and safety, although I know that is not the intention.

What the Minister has just said is complex, but it strikes me, listening to that situation, that this might be a matter of hard cases making bad law. Could we be denying lots of people the chance to have a say because of the risk in a small number of cases? How would she respond to that?

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.

What legal status does the checklist that the Minister keeps referring to actually have?

I will come back to the noble Lord on that, and I thank him for asking the question.

I was about to refer to the noble Baroness, Lady Tyler. I may not be doing so in quite the right place, so I hope she will forgive me, but I do not want to lose this point. She asked what engagement we have had with the Department for Education. Our officials have engaged with DfE officials on the development of the Bill, including on the interaction between the Bill and the Children Act, which I know is of quite a lot of interest to noble Lords. We have also discussed questions around the statutory test with both the DfE and the Ministry of Justice, given that competency tests apply in wider children’s settings than mental health. I hope that is helpful.

Amendment 136, tabled by the noble Baroness, Lady Tyler, would require the Government to hold a review of whether a statutory test of competence should be introduced into the Mental Health Act for under-16s within a year of the Bill being passed. While we recognise that there are competing views about Gillick competency, it is nevertheless the established framework for determining competency for children. To introduce a statutory test for under-16s only under the Mental Health Act is likely to risk undermining Gillick, which remains the accepted competence test for under-16s across all settings, including reproductive health and children’s social care, and the wider legislative framework on matters related to children.

The trouble with Gillick is that it does not provide, for those who have to make the decision, how to do it.

I appreciate the point that the noble and learned Baroness has made. As I said, I know there are competing views about its application. I reiterate the observation that it is the current established framework, but I hear what she is saying about what she believes are the implications of that.

The Minister’s own policy document says that this test should be in the code of practice. How does that not also contribute to the undermining of Gillick that the Minister refers to?

Actually, my feeling about the code of practice is something that I wanted to bring up, because it has come up quite a lot. The code of practice is statutory and aimed at practitioners, and it allows nuance and so on, but Gillick is in case law and it guides us throughout. The point I am trying to make is that if it is changed in respect of this Mental Health Bill then that has implications across the wider question of competency for younger people, and that is of great concern.

I apologise for interrupting the noble Baroness again, but the fact is—I speak as a former lawyer and judge who applied Gillick—it does not actually give guidance. All it says, as I understand it, is that under-16s have to be listened to. That is great, and I totally agree. What it does not do—but the Amendment of the noble Lord, Lord Meston, would—is set out the guidance that those who make the decisions need to have.

Obviously, I am listening closely to the noble and learned Baroness’s experience and feeling on the matter, and I will certainly be pleased to reflect on the points that she and the noble Baroness, Lady Berridge, have made.

If I continue, that may be of some assistance—we will see. It is of concern to me that the possible creation of two different tests will potentially cause further confusion and uncertainty on the ground. We are therefore not in a position to welcome a statutory test of competence in the Mental Health Act.

Before I continue to Amendment 147, I will come back to the good question raised by the noble Lord, Lord Scriven, about the legal status of clinical checklists. Because they are in the Bill, they are a statutory requirement for clinicians, to be followed in respect of all patients. I hope that will be useful.

It is useful, but it is therefore contradictory to what the Minister has just said. If the checklist is statutory and it is legally binding that it has to be followed, how would a young person in that checklist having a view about their care be different from an advance directive? That is the issue. The Minister said the other alternative is that a person under 18 or 16 can make a decision in relation to the medical checklist, and she has just said that the decisions are legally binding. Alternatively, is it that carrying out the process is legally statutorily binding but the views of somebody who is 16 on that list are not?

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.

The introduction of a statutory test under the Mental Health Act would not necessarily override the application of Gillick competence in these settings. As I mentioned earlier, the possible creation of two different tests is likely to cause further confusion and uncertainty, which I know noble Lords would not want to see. Any legislative change which sought to replace Gillick in one setting could also lead to challenge of its application in other areas, including other health settings.

I can assure noble Lords that we will keep an eye on this but we do not, in all honesty, intend to open this issue in the immediate term, given the broad application in a range of settings, and the wider sensitivity around matters relating to the ability of children to make decisions in relation to healthcare, care and education. We will consult on the guidance for assessing competence in mental health settings in the revised code of practice. With this, I hope noble Lords will feel able not to press their amendments.

My Lords, I thank the noble Baroness for that response. One thing we can all agree on from this discussion is that these are complex issues and people sometimes have rather different understandings of what certain things might say or mean.

Having said that, I would just like to say where I think we are on the two issues. First, on advanced decisions, I have a strong view that children and young people aged 16 and 17 should have choices that are made available to adults extended to them. As I think the noble Baroness, Lady Bennett, said, it is about having a sense of agency and autonomy and feeling that their wishes and feelings are being respected. It may be that I did not draft it very well, but I was not suggesting that everyone was going to be forced to do it. It is there as an option, and that is a really important point that possibly did not come out sufficiently in the debate. The fault for that is mine. It may be that the approach that the noble Earl, Lord Howe, was suggesting is a better way forward. I do not know; I do not mind. I just feel that, because to me this is so fundamental and a question of human rights, we will need to return to this on Report.

I turn with some trepidation now to the statutory competence test for under-16s. I have been accused of being too cautious. That is fine. I understand where noble Lords were coming from. I did not say it when I introduced it, because I thought it would be a bit to odd to say it, but I was seeing my Amendment as a bit of a backstop. In other words, if the Government are not minded to accept that recommendation, at least something would happen and at least there would be some sort of progress. As I said, I was very sympathetic to the test and the way that the noble Lord, Lord Meston, set it out. It had a fair amount of support, of course, across the Chamber, but the debate also showed that there are still some quite tricky issues that need to be teased out. I do not think it was quite as clear-cut as perhaps was being suggested, not least about issues around the consistency or otherwise of the application of Gillick.

It may be that, again, I did not get the wording right when I talked about a “review”. I accept that. Reviews can be kicked into the long grass and you never see anything again. But I thought the idea of a consultation was very important and, in fact, I think it would be quite difficult, having listened to this debate carefully, to move straight to having something in the Bill without having some sort of consultation first. It might be that you would want to take some sort of powers that would enable such a thing to be put in place after that consultation had happened, but to me it just felt that some issues still needed to be teased out.

Perhaps my initial amendment was not completely ludicrous, but it has been a really good and interesting debate—

Probing.

Probing, absolutely. Thank you. And again, on this issue I sense that we will be returning on Report. But, having said those things, I thank all noble Lords who participated in this debate and thank the Minister for her responses. I beg leave to withdraw the Amendment.

My Lords, I do not want to prolong this, but I have to say that, although I am disappointed and a little surprised by the response from the Government, the intention is to align the Mental Capacity Act and Gillick. It is frankly not correct, if I understand the situation, to say that it is not based on case law. I referred to a specific case in which the judge formulated, essentially, the test that appears in my Amendment. As I say, I do not want to prolong this but, if necessary, I can refer the Government to that case.

Perhaps I can just say to the noble Lord that, when I reflect on the discussions on this group, as well as all the others, it may be helpful to discuss this further.

Amendment 55 withdrawn.

Amendment 56 not moved.

Clause 19 agreed.

Clause 20: Care and treatment plans