Published: Sunday 04 April 2021
I recently attended a training session on mental capacity for staff working with Children and Young People. I sat through the lesson and did not hear anything i did not know from adult MCA work that I have undertaken since 2007. I had to ask the question - am I at the right training? I was told that assessing mental capacity and best interests decision making is no different whether one is an adult or a young person of 16 or 17.
There were parents at the course who felt disempowered that they could not interfere with their capacitated child’s decision even where they placed themselves at risk.
Their parental instinct is to protect their child.
There are some differences in approaches concerning mental capacity in young people aged 16 or 17, and adults
A person aged 16 and 17 is by law a minor and their decision may still be overruled by a Court. This has been the case in relation to some decisions regarding refusal of treatment
When assessing capacity for children of this age, the assessor must consider that young people are still developing and take care not to mistake mental competence with mental capacity. Young people may not have the level of knowledge to realise the risks associated with a decision; this does not mean that they lack capacity to make a decision. In order to lack capacity, they must have a cognitive impairment or a disturbance in the mind or brain.
When considering best interests, different factors will impact, for examples, most young people grow by taking risks, and that they lack capacity should not mean that they are not permitted to take risks to enable their development. Any interventions should be proportionate.
Although this point is not exclusively relevant to Young People, it is very important to point out; Young people’s capacity to make a decision, where they have been unable to make a decision, and within which context a decision has been made on their behalf, should be kept under review because where they develop and grow and are enabled through for example, instructions and teaching, they may at a point be able to make their own decision.
The trainer was right to say that
1) The test to assess capacity is the same for adults and young people of 16 and 17 years of age and that
2) The best interests process as legislated for in S4 for the Mental Capacity Act is the same for adults and young people of that age
Professionals working with Children and Young People will need to become compliant with the Mental Capacity Act in order to ensure the rights of young people are observed and also, to inform their care plans which will in turn support the application of the Liberty Protection Safeguards
To learn how to apply the Act to practice you may want to subscribe to our course. Please contact us