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Reflecting on changes to the MCA Code of Practice (Part 9)

Mental capacity in under-18s: Anxious girl sitting on floor by sofa

We are nearing the end of our series reflecting upon the MCA Code of Practice consultation. In this ninth blog, we consider the broadening of the MCA to include those aged 16-17. 

Protecting those under the age of 18

For many years now, those young people aged 16-17 years of age have ‘fallen between the gaps’ in the law, with some laws effectively defining them as ‘adults’ able to engage with the world autonomously, while others place them within youth-based legislation.

Of course, there are certain legal rights and guidelines for specific scenarios surrounding healthcare treatment for those aged 18 and below. These typically fall under Gillick Competence and Fraser Guidelines. However, Gillick and Fraser do not apply to all situations and require those involved to be familiar with these areas and actively put them into practice.

Given the inconsistencies in the law, and in the application of the law in certain settings, there is clearly a reduced level of support and protection for those aged under 18, and specifically, those aged 16-17. This is why the forthcoming change to the Mental Capacity Act is so important, as it should give far more protection to our most vulnerable people, and ensure that those aged 16-17 are treated more fairly and consistently in line with other related legislation.

How does the MCA apply to those aged 16-17?

Under new proposals, the Mental Capacity Act will apply to those aged 16 and above. This includes all aspects of the MCA, including Best Interest decisions and Liberty Protection Safeguards (LPS).

There are only a few minor exceptions to the new rules, where specific legislation requires the consent of a legal adult. These include the need to be 18 or over to complete a Lasting Power of Attorney, and to make an advanced decision. The Court of Protection can further only formalise a statutory Will for an individual who is 18 years or older.

In certain circumstances, a healthcare professional may consider gaining the consent of the young person’s parents or guardians. However, due consideration of Gillick Competence and Fraser Guidelines should be given and the professional must make clear the framework being used as part of their rationale. For example, the common law of parental responsibilities, wherein the parent or guardian acts in the young person’s Best Interest.

What about those under-16? 

If there is a reasonable belief that someone under the age of 16 is being deprived of their liberty, then it may be necessary to apply to the Court of Protection.  

If it is deemed necessary and proportionate, the judge may consider inherent jurisdiction to protect and monitor, which can be similar to a case specific LPS. However, with cases such as those documented in the Guardian surrounding the unlawful deprivation and restraint of a 14-year-old girl, we are reminded to be critically reflective of all of our practices.

As professionals, we should never grow complacent; we should always ask questions and seek to uphold our codes of ethics to be person-centred and above all, ensure we protect those who are vulnerable, whistleblowing if necessary.

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