Lord Meston:

Moved by Lord Meston

51: After Clause 51, insert the following new Clause—“Determination of ability to decide for persons under 16(1) For the purposes of this Act and the Mental Health Act 1983, a person aged under 16 (referred to in this section as a child) is able to make the relevant decision if they can—(a) understand the information relevant to the decision;(b) retain the information; (c) use or weigh that information as part of the process of making the decision;(d) communicate their decisions (whether by talking, using sign language or any other means).(2) Where a child is able to decide in accordance with subsection (1) above, that child will be competent for the purpose of this Act.(3) A child is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).(4) A person determining a child’s ability to decide under this section must—(a) have due regard to Article 12 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”), and(b) must be able to show reasonable grounds for their belief that the child is or is not able to make the relevant decision.(5) When considered by any appropriate court or tribunal, any question whether a child is able to make the relevant decision within the meaning of this Act must be decided on the balance of probabilities.”Member’s explanatory statementThis amendment inserts a test for determining a child’s ability to make decisions (competence) under the Mental Health Act.

My Lords, I explained this amendment on the assessment of competence of under-16 year-olds on Monday, and was grateful for the forceful support that it received. However, I recognise the realities of the Government’s determined objections to it. I record my thanks to the Minister for her explanation in a letter to me and the noble and learned Baroness, Lady Butler-Sloss, this afternoon, indicating the Minister’s wish to make progress on the matters which we raised. I therefore simply ask the Government to consider circulating a preliminary draft of the guidance to be produced, preferably before the Bill leaves Parliament. I also ask them to consider whether a designated task force could be used to formulate that guidance. I will not be moving my amendment.

Amendment 51 not moved.

Amendments 52 and 53 not moved.