Children and young people: Gillick competence, the MCA and the MHA

What is Gillick competence?

A child under 16 can consent to a decision if they have enough understanding and intelligence to understand fully what's involved. That's the test from Gillick v West Norfolk and Wisbech AHA [1986] AC 112, and a child who meets it is called Gillick competent (MHA Code 19.34).

It's decision-specific, like capacity. A child may be competent to consent to one intervention but not another, so assess each decision as it comes (MHA Code 19.35). There's no fixed age at which it starts.

A child can lack competence because they haven't yet developed the understanding, or because their mental disorder affects it (MHA Code 19.37).

How to assess Gillick competence

The MHA Code suggests four questions, which mirror the MCA capacity test (MHA Code 19.36):

• Understand. Does the child understand the information relevant to this decision?
• Retain. Can they hold it in mind long enough to use it?
• Weigh. Can they weigh it up and use it to reach a decision?
• Communicate. Can they tell you their decision, by any means?

Explain things in a way that suits their age and development, and record what you asked and what they said. Blanket consent forms covering any future treatment aren't acceptable (MHA Code 19.22).

Gillick competence vs the Fraser guidelines

They're different things. Gillick competence is the general test of whether a child under 16 can consent. The Fraser guidelines, from Lord Fraser's speech in Gillick, set conditions for advising a child about sexual matters, such as contraception, without parental consent (MHA Code 19.34).

Parental consent and the scope of parental responsibility

If a child isn't competent, a parent may be able to consent, as long as the decision is within the scope of parental responsibility. The MHA Code asks two questions (MHA Code 19.41):

• Would a parent reasonably be expected to make this decision? The more invasive or controversial the intervention, the harder that is. Weigh the child's age, maturity and wishes, whether they're resisting, and anything they said when they were competent.
• Is anything undermining the consent? For example, a parent who lacks capacity, can't separate the decision from family conflict, or strongly disagrees with the other parent.

One parent's consent is usually enough, unless another parent with parental responsibility strongly disagrees and is likely to act on it.

Don't rely on a parent's consent to override a competent child's refusal (MHA Code 19.39). A court can override it where refusal would probably lead to death or severe permanent injury (MHA Code 19.23).

Informal admission and treatment of under-16s

• Competent and consents. They can be admitted and treated informally, with consent sought for each part of their care (MHA Code 19.65).
• Competent and refuses. Don't rely on a parent. Consider whether the MHA criteria are met, or get legal advice about going to court (MHA Code 19.66).
• Not competent. A parent may consent if the decision is within the scope of parental responsibility (MHA Code 19.67). If not, consider the MHA or the court (MHA Code 19.70).
• Emergency. If delay would probably lead to death or severe permanent injury, you can treat, doing no more than is necessary (MHA Code 19.71-19.72).

Does the Mental Capacity Act apply to 16 and 17-year-olds?

Mostly, yes. Presume capacity and support them to decide. If they lack capacity, decide in their best interests and consult their parents (MHA Code 19.26, 19.38). The Family Law Reform Act 1969 also lets them consent to medical treatment themselves (MCA Code 12.11).

The four parts that start at 18 are lasting powers of attorney (s9), advance decisions (s24), statutory wills (s18(2)) and DoLS (Sch A1 para 13). The Court of Protection can still make orders from 16, including authorising a deprivation of liberty.

Section 131: informal admission of 16 and 17-year-olds

There's a third group: young people who can't decide, perhaps because they're overwhelmed, but don't lack capacity under the MCA. A parent can't consent to their admission either, because s131 allows that only where the young person lacks capacity (MHA Code 19.54). See informal admission.

Treating 16 and 17-year-olds

• Capacity and consents. Their consent is enough. You don't need a parent's too (MHA Code 19.21, 19.58).
• Capacity and refuses. Don't rely on a parent's consent to override them. Consider the MHA if the treatment is for mental disorder, or the court (MHA Code 19.59).
• Lacks capacity. The MCA applies as for adults, unless the treatment would deprive them of liberty (MHA Code 19.61). A parent may also be able to consent, within the scope of parental responsibility (MHA Code 19.62).
• On a CTO. Parents can't consent to or refuse treatment for mental disorder on their child's behalf (MHA Code 19.114).

Re D: parents can't consent to a deprivation of liberty

In Re D [2019] UKSC 42 the Supreme Court settled the point for 16 and 17-year-olds. Consenting to a placement that deprives them of liberty isn't within the scope of parental responsibility (para 49). Article 5 safeguards are needed, however good the parents' intentions.

So for a young person who lacks capacity and would be confined, the route is the MHA if the criteria are met, or the Court of Protection. Lady Hale left open whether the same applies to younger children (para 50).

AGNI changes the first question. Whether the arrangements amount to a deprivation of liberty at all is now the multi-factor test, which DHSC says applies to children through the courts (September 2026).

Court of Protection or the Family Division?

Both can deal with a 16 or 17-year-old who lacks capacity. The MCA Code suggests the Court of Protection where an order will need to continue past 18. For one-off cases not about property or money, the Family Division may suit better (MCA Code 12.24). Proceedings can be transferred between them (s21).

Can a child be sectioned under the Mental Health Act?

Yes. There's no minimum age for detention (MHA Code 19.17). The MHA can be used for a child or young person who needs hospital assessment or treatment for mental disorder, can't be admitted informally, and meets the criteria.

A CTO has no lower age limit either (MHA Code 19.113). If admission isn't right, involve children's services, and consider whether secure accommodation is needed (MHA Code 19.18-19.19).

Assessing a young person under the MHA

• CAMHS input. At least one of the two doctors or the AMHP should be a CAMHS professional. If that isn't possible, consult a CAMHS clinician as soon as you can (MHA Code 19.73).
• Parental responsibility. Find out who has it and consult them, subject to the young person's confidentiality (MHA Code 19.38).
• Children's services. The AMHP should consider telling them about the assessment and asking for relevant information (MHA Code 19.74).
• Informal first. Check whether consent, competence or capacity, or parental consent, would allow informal admission (MHA Code 19.49-19.70).

The general process is on making an application under the MHA.

Safeguards for detained under-18s

See the Mental Health Tribunal for applications and referrals.

ECT for children and young people

A detained young person who can consent can't be given ECT without consent, except in an emergency under s62 (MHA Code 19.81). On a CTO, a competent refusal holds even in an emergency, unless they're recalled to hospital (MHA Code 19.82).

For an informal patient who lacks capacity or competence, a SOAD's approval isn't enough authority on its own. You also need the MCA for a 16 or 17-year-old with no deprivation of liberty, parental consent used with great care, the MHA, or the court (MHA Code 19.84-19.87). See ECT and section 58A.

Rights and advocacy

• Tell them their rights, and help them find a lawyer early for the tribunal (MHA Code 19.107).
• IMHAs working with under-18s should have CAMHS experience and understand children's law (MHA Code 19.77).
• Education. Councils must arrange suitable education for every child of compulsory school age (MHA Code 19.116).

Deprivation of liberty for under-18s: the routes

How AGNI affects children

DHSC says the new definition applies to children where a deprivation of liberty is authorised through the Court of Protection or the High Court. So the multi-factor test, and valid consent shown through wishes and feelings, apply to children too.

Even before AGNI, a Gillick competent child could validly consent to arrangements that would otherwise confine them. Courts treat that consent with caution, because it may be insecure (Re T [2021] UKSC 35).

For a child, also compare the restrictions with normal parental control at that age. It's usual for a child under 12 not to go out alone without permission. That wouldn't usually be acceptable for a 17-year-old (MHA Code 19.47).

Re D left open how far parents can consent to confining a child under 16, and no appellate court has settled it since. Take legal advice. For adults, see deprivation of liberty after AGNI.

Secure accommodation and unregistered placements

Under s25 of the Children Act 1989, the family court can authorise placing a looked-after child in secure accommodation. One ground is a history of absconding, a likelihood of absconding from other accommodation, and a likelihood of significant harm if they do. The other is that they're likely to injure themselves or others anywhere else.

The accommodation must be approved as secure, and approved places are scarce. So councils often ask the High Court to authorise a deprivation of liberty in an unregistered placement instead, under its inherent jurisdiction. These applications are heard in a national deprivation of liberty list in the Family Division.

Practical points on CAMHS and paediatric wards

• Review informal admissions. Restrictions that start small can grow into a deprivation of liberty, which then needs lawful authority (MHA Code 19.46).
• Get authority first where you can, rather than after the restrictions have started.
• Match the route to the need. Hospital treatment for mental disorder points to the MHA. A welfare placement points to the courts or secure accommodation.
• Record the restrictions, the young person's response to them, and why you chose the route you did.
• Take legal advice early. Re D, AGNI and new legislation are all moving this area at once.