There may be occasions when a 16-17 year old, who would usually be presumed to be competent to make decisions, may lack capacity or may become incapacitated. In these circumstances doctors are advised to look at more detailed guidance on mental capacity and they may need to seek expert advice.
On what basis can decisions be made for 16-17 year olds who lack capacity?
In England and Wales most of the Mental Capacity Act 2005 applies to 16-17 year olds who lack capacity because of an impairment of, or a disturbance in the functioning of, the mind or brain.
At the heart of the Act lies the principle that any decision or action taken must be in the best interests of the 16-17 year old who lacks capacity.
There are some provisions in the Act that do not apply to 16-17 year olds, namely:
- they cannot make a Lasting Power of Attorney (LPA)
- they cannot make an advance decision to refuse medical treatment
- the Court of Protection cannot make a statutory will.
In Scotland, the Adults with Incapacity (Scotland) Act 2000 sets out the framework for regulating intervention in the affairs of adults (people over 16) who have impaired capacity. It allows people over the age of 16 who have capacity to appoint a welfare attorney to make health and personal welfare decisions once capacity is lost. The Court of Session may also appoint a deputy to make these decisions.
In Northern Ireland, the GMC advises that ‘treatment can be provided in the young person’s best interests if a parent cannot be contacted, although’ doctors ‘should seek legal advice about applying for court approval for significant (other than emergency) interventions’ (GMC. 0-18 years, paragraph 28). There are plans to introduce new legislation relating to both mental health and mental capacity in Northern Ireland.
England and Wales
Card 12: 16-17 year olds who lack mental capacity (PDF)