The legal position of 16-18 year olds
The Mental Capacity Act applies to anyone over the age of 16. Decisions about a young person’s capacity and best interests can be made in the same way as for any adult.
There are some exceptions to this: only people over 18 can make an Advance Decision or donate a Lasting Power of Attorney. The Deprivation of Liberty Safeguards only apply to people aged 18 or over.
If legal proceedings concerning someone aged 16-17 are being heard in Court, the Court of Protection may refer the decision to the Family Courts, or the Family Courts may refer the decision to the Court of Protection: each decision will be considered individually.
Consent to treatment
Young people over 16 years old are presumed to have capacity to consent to surgical, medical or dental treatment and to associated procedures, such as nursing care. (Family Law Reform Act 1969)
Some procedures, such as organ donation, are not covered by this, but by a test of ‘Gillick competence’. This test is used with people under 16 and for people over 16 for procedures which may not be of benefit to the young person themselves. It is similar to the capacity test and assesses if the young person has the intelligence, maturity and understanding to comprehend what is proposed.
The person proposing any treatment or care needs to be clear about the young person’s capacity to make the decision. If the young person can’t make the decision because of an impairment of or disturbance in the functioning of the mind or brain then the assessment and process of MCA will apply. (Part 6: How to assess capacity) (Part 8: Best interests decisions)
If a young person has capacity to consent to treatment, their decision must be respected. If the young person makes a capacitated decision to refuse treatment this must also be respected – even if someone who has parental responsibility wishes to consent on their behalf. If the young person has capacity, the MCA does not apply and the Court of Protection cannot intervene. The Family Courts can make decisions in such situations.
If a young person does not have capacity to make a decision, the decision could be made following MCA processes or could be made by the person with parental responsibility. The method by which the decision is made will depend on whether the decision is in the ‘zone of parental control’ and who is exercising parental responsibility.
Who has parental responsibility?
Someone who has parental responsibility for a young person may be asked to make decisions about their care or treatment if they lack capacity to make the decision for themselves. It is important to be clear who has parental responsibility as it is not necessarily the young person’s parent.
- A mother automatically has parental responsibility for her child, unless the child is legally adopted by someone else.
- A father who is married to the mother at the time of the birth, or if the child is jointly adopted, automatically has parental responsibility. If the father and mother subsequently marry, the father can acquire parental responsibility if the birth is re-registered.
- From 1 December 2003 an unmarried father who jointly registers the birth with the mother and is named on the child’s birth certificate automatically has parental responsibility.
- An unmarried father who is not on the child’s birth certificate, or an unmarried father who is on the birth certificate of a child born before 1 December 2003, can gain parental responsibility by way of a formal parental responsibility agreement between him and the mother or by Court Order.
- Step fathers can acquire parental responsibility if they make an agreement with the mother or by a Court Order.
- If the child is involved in care proceedings, parental responsibility can be assigned to the person they are living with. If the child is subject to a Residence Order the person the child lives with acquires parental responsibility.
- If the child is subject to a Care Order or an Interim Care Order DCC or Torbay Council has parental responsibility.
Parental responsibility lasts until the child is 18. If parents divorce the father retains parental responsibility; the parent the child lives with does not have more powers than the other parent.
What is parental responsibility and the zone of parental control?
Parental responsibility means the: ‘rights, duties, powers responsibilities and authority which by law a parent has in relation to a child’. (Children Act 1989)
The zone of parental control is a legal concept describing which decisions a parent should be able to take concerning their child’s welfare. There is no codified statement of which decisions come into the zone of parental control.
The Mental Health Act Code of Practice (36.10) give two points that should be borne in mind when considering if a decision comes within the zone
- Is the decision one that a parent would be expected to make?
- Are there indications that the parent might not act in the young person’s best interests?
You should also consider:
- the nature and invasiveness of what is proposed
- if the young person is resisting
- do the parents’ interests conflict with the young person’s best interests?
How to make decisions for young people who lack capacity
The general rule is that the person or people who have parental responsibility for the young person should make the decision (Code of Practice 12.16)
If the decision does not come within the zone of parental control it will be necessary to use MCA procedures instead. For instance if the proposed treatment is particularly invasive or controversial, if the young person is resisting or if the interests of the parents conflict with the best interests of the young person.
For instance a young person who usually has capacity may lack capacity when drunk. A decision that they should not go out and engage in more risky behaviour would come within the zone of parental control and a parent, or someone with parental responsibility, should use this to make a decision about the young person going out or not. However, if the young person resists the parent’s decision this may move the decision out of the zone of parental control and MCA processes would be indicated. This would be a capacity assessment, best interests decision and using appropriate restraint, proportionate to the risks, if needed. In such a situation decisions would be based on reasonable belief rather than formal assessment. (Part: 24 MCA and family and informal carers)
The decision-maker will need to assess the young person’s capacity and best interests. Following the best interests checklist (MCA section 4) the decision-maker will consult people involved in the care and support of the young person which will include, but not be limited to, people who have parental responsibility. (Part 6: How to assess capacity) (Part 8: Best interests decisions)
If the young person is unbefriended – has no family or friends who could be consulted about the decision – a referral for the support of an Independent Mental Capacity Advocate may be necessary. A referral will need to be made if the decision concerns serious medical treatment or a change of accommodation. (Part 15: Independent Mental Capacity Advocates)
If the decision-maker doesn’t agree with the views of the young person’s parents or others it will be necessary to follow the same procedure as for any decision – a best interests meeting, use of advocates and mediation as appropriate. (Part 9: Best interests meetings) (Part 11: Resolving disputes)
The Court of Protection can make determinations about a young person’s capacity or a best interests decision. This should only be used as a last resort.
(Part 23: The Court of Protection)
If the decision is controversial, make sure you have obtained legal advice and support. Contact your local MCA Lead or Safeguarding Adults Team for advice about MCA; the Child Protection team may also need to be involved. (Contact details)