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The legal position of 16-18 year oldsCode of Practice chapter 12.General points: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, as detailed above, following sections 2-4 MCA.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: (Code of Practice 12.11-15)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 (e.g. 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 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 cannot 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 to the decision. (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 having 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 the care or treatment of a young person who lacks capacity to make the decisions for themselves. It is important to be clear who has parental responsibility: 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 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 1.12.03 an unmarried father who jointly registers the birth with the mother and is named on the child’s birth certificate automatically has parental responsibilityAn unmarried father who is not on the child’s birth certificate 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 with whom the child lives acquires parental responsibility.If the child is subject to a Care Order or an Interim Care Order the Local Authority has parental responsibility.Parental responsibility lasts until the child is 18. If parents divorce the father retains parental responsibility; the parent with whom the child lives does not have any more powers than the other parent.What are ‘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 zoneIs 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?Further factors to consider include:The nature and invasiveness of what is proposedIf the young person is resistingDo the parents’ interests conflict with the young person’s best interests?How to make decisions for young people who lack capacityThe 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. This will be, for instance, if the proposed treatment is particularly invasive or controversial or if the young person is resisting or if the interests of the parents conflict with the best interests of the young person.The decision maker will need to assess the young person’s capacity and best interests. Following the best interests checklist (s4MCA) 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 decision maker does not 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 21 The role of the Court of Protection)If the decision is controversial, make sure you have obtained legal advice and support. Contact your local MCA Lead and/or Safeguarding Adults Team for advice about MCA; the Child Protection team may also need to be involved.