Children and Young People

The Mental Health Act 1983 does not distinguish the situation of children and young people from that of adults, even though people of all age groups are subject to the Act. Most other relevant powers are contained in the Children Act 1989. These include powers to detain through secure accommodation as well as other relevant powers such as care orders. In some cases, secure accommodation under the Children Act would be an alternative for young people who are in fact detained under the Mental Health Act 1983. There is also an overlap with criminal law. Common law and case law elaborates on the relationship between parental and child consent, and in some cases the High Court may use its inherent jurisdiction when no other framework meets the need. All this is framed within the Human Rights Act, particularly the rights on family and private life and liberty (Article 5 and 8 ECHR). In summary, law in this area is extremely complex and would benefit from simplification.

In the Draft Bill, young people aged 16 and 17 will be able to agree to or refuse treatment for mental disorder and their decision will not be able to be overridden by parental consent (as is the case under the 1983 Act). The Bill provides safeguards for children who neither consent nor are sectioned, that is, who are treated under parental consent either because of the child’s immaturity or illness. These include: