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Mental Capacity: One Standard for All Ages

Date:2 MAY 2011

Mr Justice McFarlane

Family Division Liaison Judge

This article is based on an address to the conference ‘Evolving Competencies, Young People, Mental Capacity and Mental Health Care Law: a law fit for the 21st Century?', Centre for Health and Social Care Law, University of Cardiff, February 2011.

The issues that are raised by the subject matter of today's conference have a wide compass and include, in particular, consideration of how the various statutory regimes impact upon a young person who does, or may, suffer from mental ill health.

The regimes for the assessment and/or treatment of mental health, for secure accommodation and criminal justice may each impact upon a person under the age of 18 so as to detain them against their will. In this regard the deprivation of liberty provisions of the Mental Capacity Act 2005 are an exception in that they do not apply to a person under the age of 18 (see the Mental Capacity Act 2005 (MCA 2005) Sch 1A, para 13). There is, however, no age limit to the powers of detention or supervised community treatment under the Mental Health Act 1983, and a child, no matter how young, may fall within these provisions. A young person may also be made subject to a secure accommodation order under the Children Act 1989 (CA 1989) s 25 although it is questionable whether s 25 can lead to him being detained in a psychiatric facility. By whatever route he gets there, a young person must now be accommodated in a mental health institution in ‘an age appropriate environment'.

One matter that it is important not to lose sight of is that, although we may talk of different statutory regimes for mental health, mental capacity, secure accommodation or criminal justice, it is not infrequently the same young person who may, unfortunately, engage with each scheme. It is therefore hard to understate the importance of there being an overview across the landscape and an understanding of those working in one field of how matters work in another. In addition, we should bear very much in mind that today's young person is tomorrow's adult and any focus we may gain during today's conference on the process of transition from youth services to the adult schemes will be of particular value.

All of these matters are topics upon which I would not hold myself out to be an expert and I, like many of you, am looking forward to being educated on the current state of the law during the course of the day. For the purposes of this keynote address, however, I propose to dwell upon what is for me, a family judge and a judge of the Court of Protection, more familiar ground.

To read the rest of this article, see May [2011] Family Law journal.

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