This lack of consistency means young people “will not benefit fully from the rights and safeguards” set out in the Bill, MPs warn.
The concerns have been raised by peers and MPs sitting on a joint parliamentary committee scrutinising the draft mental health bill.
The legislation was announced last year and aims to reform the 1983 Mental Health Act to give mental health patients greater control over their treatment.
“Children and young people have special needs in mental health services due to their age,” states MPs and peers’ report.
“It is imperative that these reforms do not leave children and young people behind, and that they are guaranteed the access to safeguards and treatment that they need.
“The provisions in the draft Bill rely heavily on consent, capacity and competence to make decisions. This is an area where the law is complex and, we heard, in need of better definition.
“A statutory test to assess child capacity is necessary to clarify this process for children, families, and clinicians.”
It calls on ministers to “consult on the introduction of a statutory test for competency, or ‘child capacity’ for children under 16. This consultation should "consider the wider implications of this reform on other areas of law affecting children”, add Committee members.
Current guidance for testing young people’s competence to make decisions varies depending on age. Those aged 16-17 are subject to the 2005 Mental Capacity Act, where they are assumed to have capacity unless evidence shows otherwise.
Young people aged under 16 are subject to the concept of ‘Gillick competence’, established in 1985 from the legal case Gillick v West Norfolk around consent for medical treatment. Children of this age are assumed not to have competence unless there is evidence to the contrary.
The MPs and peers’ report points out that while the there is currently no direction in the Children Act of 1989 to determine a child’s capacity for understanding, the principles of Gillick “have been widely adopted by safeguarding agencies and clinicians”.
Among those giving evidence to the Committee was Dr Susan Walker, a consultant child and adolescent psychiatrist at Great Ormond Street Hospital, who said the concept of competency for children is currently “ambiguous”.
Another to give evidence, Dr Camilla Parker, a legal and policy consultant at Just Equality “noted that even after 40 years we do not have clear, consistent criteria for determining whether a child is competent to make a decision”, states the MP and peers’ report.
📑The Committee's Report on the Draft Mental Health Bill 2022 was published this morning
— Joint Committee on the draft Mental Health Bill (@dMHBillCttee) January 19, 2023
🙏Thank you to everyone who contributed, particularly the service users we spoke to in private sessions
👉You can read it here: https://t.co/c7FeK9UTQy pic.twitter.com/ddIn8DvubX
Other recommendations made by the committee to ministers include creating a statutory mental health commissioner post to promote the interests of those detained under the Mental Health Act and oversee the Bill’s reforms.
There also needs to be a focus on promoting racial equality in the legislation. Health organisations should also appoint a data collection expert to monitor issues such as ethnicity.
“Community Treatment Orders are used disproportionately for black and ethnic minority patients and should be abolished for the majority of patients, except those involved in criminal proceedings or under sentence where their continued use should be reviewed,” MPs and peers also recommend.
“We welcome the intention of the government’s draft Bill to bring about long overdue mental health reform,” said the Committee’s chair Baroness Buscombe.
“We hope ministers will accept our amendments which strengthen the Bill and deliver workable legislation. Ministers must now act swiftly to bring it before parliament.”
She added: “We believe stronger measures are needed to bring about change, in particular to tackle racial disparity in the use of the Mental Health Act. The failure to date is unacceptable and inexcusable.”
Children and Young People’s Mental Health Coalition lead Charlotte Rainer, backs the committee’s call for strengthening testing of young people’s competence.
“Their report rightly recognises the need for a statutory test for competence to be included in the Bill and call on government to consult on what this will look like,” she said.
“We support this recommendation and would like to see the statutory test work effectively for those under the age of 16.”
The Committee has also recommended ending the placement of children on adult wards and far from home.
Carolyne Willow, director of children’s rights charity Article 39 was among experts to give evidence.
“Mental health wards, as you know, are really frightening places,” she told MPs and peers.
“People are shouting; people are screaming; people are out of control. If that person who is shouting and screaming, 'I’m going to kill you, I’m going to do this to myself, I’m going to do that to somebody else', is aged 40, 50 or 60 and you are 14 years old, that is terrifying.”
