Mental health and capacity laws in Northern Ireland: examining the position of children and young people Open Access

Abstract

Mental health and capacity laws applicable to children and young people in Northern Ireland (NI) lack clarity and coherence, with significant gaps in service provision and safeguarding. Drawing on an examination of such laws, we argue that law reform is needed. In the short term, we suggest there is merit in publishing statutory guidance, such as a Code of Practice, to address both the issue of evolving capacity in children and to facilitate best practice in policy and practice. This modest reform in the short term should be accompanied by a firm political commitment to ensuring that NI’s innovative fusion mental capacity legislation is fully brought into force in the medium term. Meanwhile, law reform should form part of a holistic approach on the part of NI’s policy-makers towards improving mental healthcare provision for children and young people in line with a human rights-based approach. This would include the following: increased allocation of funding and resources to facilitate more timely access to suitable treatment and related services; enhancing participation in policy, judicial, and clinical decision-making that impacts their lives; and employing a range of executive accountability mechanisms to drive improvements in such provision over time.

I. INTRODUCTION

Rates of mental ill-health among children and young people in Northern Ireland (NI) are high, with 11 per cent being at risk of emotional and behavioural problems; one in eight experience emotional difficulties; and one in ten conduct problems.¹ While the prevalence of mental illness in this population is broadly similar to other parts of the UK,² it is complicated by significant socio-economic deprivation,³ as well as the legacy of decades of violent sectarian conflict, which has contributed to inter-generational trauma, adversely affecting family relationships.⁴ Indeed, it has been estimated that over 40 per cent of young people in NI live with parents who have ‘high or moderate experience of the conflict’, placing them at significant risk of poor mental health.⁵ For many years, it has been difficult to ascertain the full extent of mental ill-health amongst this population due to the absence of systematic collection and evaluation of available data. It is a state of affairs that has been the subject of ongoing criticism on the part of the NI Commissioner for Children and Young People (NICCY).⁶ However, recently published survey data have identified over 45 per cent of those aged 16 years as having ‘a probable mental illness’.⁷ This is in addition to 25 per cent of referrals to NI Child and Adolescent Mental Health Service (CAMHS) being categorized as ‘emergency or urgent’ compared with 10 per cent for the rest of the UK.⁸ Waiting lists for CAMHS have also significantly increased in the wake of the coronavirus disease 2019 (COVID-19) pandemic, with many waiting for significant periods of time for access to treatment or otherwise being rejected for referral to CAMHS.⁹ While the current NI Mental Health Strategy expresses a commitment to increasing access to, funding for, mental healthcare provision for children and young people,¹⁰ the most recent report of the NICCY has highlighted that there is still a long way to go towards realizing this commitment in practice. This is against a background of longstanding institutional fragmentation, chronic underfunding, and poorly resourced service provision of mental health services more generally.¹¹ It is no exaggeration to say that mental healthcare provision for children and young people has been, and continues to be, in a state of crisis in NI,¹² against a background where the overall cost of mental ill-health in NI is estimated to be at least £3.4 billion.¹³

Compounding these problems is the current dysfunctional state of NI’s mental health and capacity laws applicable to children and young people. While there is a voluminous literature examining mental health and capacity law in other jurisdictions in the UK, such as England and Wales,¹⁴ as well as healthcare decision-making involving children and young people,¹⁵ how such analyses intersect with the NI legal framework have been significantly under-researched in the health law literature to date, and this article seeks to make an original contribution in this regard. Drawing primarily on an examination of two key pieces of legislation—the Mental Health (Northern Ireland) Order 1986 (MHO)¹⁶ and the Mental Capacity Act (Northern Ireland) 2016 (MCANI)¹⁷—we argue that such laws lack clarity and coherence, with significant gaps in service provision and safeguarding. In making such an argument, we recognize that a range of proposals have been made to date with respect to reforming the existing legal framework.¹⁸ However, we are concerned that they are too ambitious to be realized in the short to medium term. This is due to persistent political dysfunction in NI, which is unique within the UK setting, and is attributable to the legacy of a violent sectarian conflict, colloquially known as ‘The Troubles’, which lasted 25 years in the closing decades of the twentieth century.¹⁹ Notwithstanding a peace agreement bringing the conflict to an end over 25 years ago,²⁰ there have been successive collapses of NI power-sharing institutions since such time due to ongoing sectarian political divisions. During periods when such institutions were not operating, direct rule by the UK government was re-imposed. The cumulative effect over time of such political instability has led to dysfunction in the management of health and social care, including a lack of consistent momentum with regard to policy and law reform in areas, such as mental healthcare.²¹

Given this political context, we adopt a cautious approach to proposing law reform in order to drive improvements to NI’s mental health and capacity laws applicable to children and young people. In the first instance, we suggest that statutory guidance in the form of a Code of Practice be developed to address both the issue of evolving capacity in children and to facilitate best practices in policy and practice. This modest reform in the short term should be accompanied by a firm political commitment to ensuring that NI’s mental capacity legislation (ie, MCANI) is fully brought into force. We further argue that such reform should form part of a holistic approach on the part of NI policymakers towards improving mental healthcare provision for children and young people. We suggest that the best way to achieve improved provision is through embedding a human rights-based approach in mental healthcare policy and practice, in particular, respecting the principles of autonomy and participation. In doing so, a children’s rights perspective is promoted, which is grounded in the United Nations Convention on the Rights of the Child (CRC)²² and prioritizes non-discriminatory participation and the empowerment of children and young people.

Drawing on select CRC rights, identified in the final section of the article, we propose that an enhanced human rights-based approach to mental healthcare provision for children and young people in the NI context would ideally involve the following: increasing the allocation of funding and resources to facilitate more timely access to suitable treatment and related services; enhancing children’s autonomous participation in policy, judicial, and clinical decision-making that impacts their lives; and employing a range of executive accountability mechanisms to drive improvements in such provision over time. In making these arguments, we recognize that a range of human rights instruments could be said to impact the legal framework impacting the provision of NI’s mental healthcare for children and young people, and we do make reference to such instruments in the body of the article. In advancing our specific argument regarding the need to better embed a human rights-based approach in NI’s mental healthcare provision for children and young people, however, we draw inspiration primarily from a CRC perspective. This is because the CRC is tailored specifically towards children as rights-holders, as well as recognizing that they may be in need of specific protections due to their minority status, in circumstances where questions involving parental responsibility must also be taken into account.²³

In order to examine these arguments, we first provide a brief overview of NI’s political and constitutional status, as well as its overarching legal framework for managing the welfare, well-being, and human rights of children and young people. We then examine NI’s mental health and capacity laws, Codes of Practice and guidelines. For the purposes of this article, we focus only on the applicability of such laws in the civil, rather than the criminal, justice context. We use the term ‘children’ to refer to those aged under 16 years, and ‘young people’ to refer to those aged 16 and 17 years of age. The term ‘adult’ is used to refer to those aged 18 years and over, in line with NI law on attaining the age of majority.²⁴ We then examine the position of children, especially those between 12 and 16 years of age, exploring the mix of common law, statute, and human rights instruments applicable in NI, that inform the approach taken to their evolving capacity. In doing so, we use the term ‘English’ for reasons of brevity in referencing case law and statute from the England and Wales jurisdiction. In the final part of the article, we consider how existing mental health and capacity laws could be reformed as part of a holistic approach to improving NI mental healthcare provision for children and young people.

II. NI MENTAL HEALTH AND CAPACITY LAWS APPLICABLE TO CHILDREN AND YOUNG PEOPLE

A. Introduction and overview

It is important to first provide a brief overview of NI’s political and constitutional dynamics, in order to contextualize the fragmented and uneven development of the existing mental health and capacity legal framework applicable to children and young people. By way of background, NI is a devolved nation of the UK comprising six counties in the North-East of the island of Ireland. While the jurisdiction was formally created in 1921, its constitutional status, including whether it should remain part of the UK or form part of a united Ireland, was one of the factors in a violent conflict, commonly known as The Troubles, of which previous mention has been made.²⁵ The Belfast Agreement re-established devolved power-sharing institutions which now include the NI Executive, which represents the devolved administration, and the NI Assembly, which is the devolved legislature. Since the signing of the peace agreement in 1998, there have been successive periods where direct rule has been re-imposed by the UK government, due to local sectarian political divisions bringing about the collapse of power-sharing institutions. Most recently, agreement was reached between local parties to restore such institutions after they had lapsed for a period of 2 years.²⁶ Nevertheless, NI power-sharing arrangements are likely to remain fragile, due to ongoing sectarian tensions, as well as continuing political friction over the border between NI and Ireland, which has been exacerbated by Brexit.²⁷

The mental health and capacity legal framework applicable to children and young people includes NI-specific laws, such as the Children (Northern Ireland) Order 1995 (NICO), which in general terms provides the legal framework for the care, upbringing, and protection of children in NI.²⁸ Under the NICO, the child’s welfare is ‘the paramount consideration’,²⁹ which is determined by reference to specified criteria including the child’s ascertainable wishes and feelings in light of their age and understanding; their physical, emotional, and educational needs; the likely effect of any change in their circumstances; their age, sex, background, and any characteristics that the court considers relevant; any harm suffered or which is at risk of being suffered; and how capable their parents are of meeting their needs.³⁰ The paramountcy principle is at the heart of the NICO, which also finds recognition across a range of UK legislation and jurisprudence, as well as international legal instruments. It has been suggested that the NICO is a suitable vehicle for enhancing a more rights-based approach towards children and young people.³¹ However, it does not specifically address matters pertaining to involuntary treatment for children’s mental disorders or their deprivation of liberty, which we consider are more suitably dealt with separately under NI’s mental health and capacity laws, as discussed in further detail below.³²

Another more recent piece of legislation is the Children’s Services Co-operation Act (Northern Ireland) 2015.³³ This Act imposes a statutory duty on children’s authorities, as well as between such authorities and the NI Executive, to facilitate co-operation with respect to functions that may contribute to the well-being of children and young persons.³⁴ This also includes their mental health.³⁵ As part of its statutory obligations, the NI Executive is required to publish a Children and Young Person’s Strategy setting out how it proposes to improve the well-being of children and young persons.³⁶ The current Strategy was published in January 2021, which references the CRC, and aims for improvements in a range of children’s services covering information-sharing, monitoring, and evaluation processes.³⁷ As the NICCY has pointed out, however, the publication of the Strategy was well overdue and was in any case hampered by an ‘absence of robust data’ regarding CRC rights and gaps in children’s services, in particular mental healthcare services.³⁸ More troubling for present purposes is the fact that the inter-relationship between the two Strategies, namely the NI Mental Health Strategy and the Children and Young Person’s Strategy, is not made clear in terms of how they will work together to provide suitable mental healthcare for children and young people, and in line with the CRC.

Human rights instruments such as the Human Rights Act 1998 (HRA), as well as jurisprudence, also form part of NI’s existing mental health and capacity legal framework applicable to children and young people. Indeed, concerns about human rights protections increasingly form part of legal challenges in NI over decision-making and orders involving questions of children’s capacity, involuntary treatment for mental disorders, and detention for other reasons.³⁹ Rights set out in the European Convention on Human Rights (ECHR) which are of particular relevance to mental healthcare provision, include Article 3 (prohibition of torture, inhuman, or degrading treatment or punishment); Article 5 (right to liberty and security); Article 8 (right to respect for family and private life); and Article 14 (right not to have ECHR rights secured in a discriminatory way). Other relevant international human rights instruments include the CRC, the Convention on the Rights of Persons with Disabilities (CRPD),⁴⁰ and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).⁴¹

Of particular interest in terms of what we discuss later in the article include the following CRC rights: Article 3 (child’s best interests to be primary consideration), Article 5 (parental guidance and children’s evolving capacities), Article 12 (respect for children’s lives in all matters impacting their lives, including opportunity to be heard in legal and administrative proceedings), and Article 24 (child’s right to the highest standard of health). This is in addition to relevant Articles set out in the CRPD, which include Article 7 (children with disabilities),⁴² and Article 12(3) (supported decision-making in the exercise of legal capacity).⁴³ Although there is no specific reference made to people with disabilities (including children with disabilities), subsequently published commentaries on aspects of CEDAW have made it clear that reference to people with disabilities should include taking account of the specific needs of girls and women, particularly in relation to Article 12 (access to health care).⁴⁴ Notwithstanding their different focus, it has been argued that all three international Conventions ‘need to be understood collectively in order to gain a comprehensive understanding of the human rights of all children with disabilities, and the associated obligations on States to respect, fulfil and protect those rights’.⁴⁵ While the UK has ratified all three Conventions,⁴⁶ it has not incorporated them into domestic law. The exception to this is the recent incorporation of the CRC into Scots law.⁴⁷ However, the Conventions have been referred to, and taken account of, by UK public bodies, as well as in jurisprudence relating to questions of mental capacity involving children and young people, and this will be examined in more detail later in the article. In the next section, we provide an overview of key aspects of NI’s mental health and capacity laws applicable to children and young people. Given the fact that it has proved to be a problematic issue in terms of proposed law reform in the area, there is a particular focus on questions of evolving capacity for children aged between 12 and 16 years of age.

B. NI’s mental health and capacity laws

There are two key pieces of legislation that are relevant to children and young people: namely, the MHO and the MCANI. In relation to the former, the MHO has been described as a piece of ‘traditional mental health legislation’, having been in force for over 35 years.⁴⁸ Given the passage of time, it has been argued that it no longer represents best practice, showing a lack of due respect for the principles of autonomy, justice, and benefit, as well as failing to incorporate appropriate human rights protections.⁴⁹ As things stand, the MHO provides the legal basis for the involuntary treatment of ‘mental disorder’, which is defined as ‘mental illness, mental handicap and any other disorder or disability of mind’.⁵⁰ Although a 14-day assessment period is required prior to involuntary treatment,⁵¹ the wide-ranging definition justifying involuntary treatment has nevertheless been criticized as giving rise to the potential for persons to be detained due to ‘moral, social, political, or cultural judgements’ rather than for reasons of safety or necessity.⁵²

Clinical decision-making regarding involuntary admission for assessment is based on diagnosis and risk; the presence of mental illness or severe mental impairment, and where a failure to detain may lead to substantial risk of serious physical harm to self or others.⁵³ The MHO is accompanied by a short Code of Practice, which provides further information about the provision of mental healthcare in line with the MHO.⁵⁴ Notwithstanding this approach to involuntary treatment under the MHO, it is relatively rare in practice for a formal diagnosis to be given to children under 16 years of age, which it has been suggested reflects a ‘tentative approach’ on the part of NI medical practitioners about the potential adverse impact a formal mental health diagnosis might have on a child’s ‘emerging identity’.⁵⁵ The MHO also provides certain safeguards for a person who is being deprived of their liberty, with time limits set out for each stage of compulsory admission for assessment and treatment, as well as how and when applications can be made to the Review Tribunal.⁵⁶ Prescribed forms are completed by the treating medical practitioner, the Responsible Medical Officer, providing holding powers for assessment and, if required, treatment.⁵⁷ The completed forms are then sent to the NI Regulation and Quality Improvement Authority (RQIA), which is empowered to scrutinize and monitor all MHO forms.⁵⁸ Once submitted, a child’s representative may challenge their detention under the MHO which can be done within the assessment period (ie, the first 14 days), or during the treatment period after that. A patient’s detention for treatment is then monitored at set intervals until the treating medical practitioner deems it safe for them to be discharged. If a request for detention is left unchallenged, the case will automatically come before the Review Tribunal after 1 year, in the case of a child.⁵⁹

The operation of time limits under the MHO has long been viewed as problematic, with concerns expressed about unlawful patient detention and young people being unnecessarily detained within in-patient facilities for years.⁶⁰ This was exacerbated by the COVID-19 pandemic with the implementation of an emergency MHO Code of Practice in 2020–2021, which further extended time limits for detention and holding powers.⁶¹ Although this proved to be a temporary state of affairs, it nevertheless added to existing concerns that (extended) time limits under the MHO have the potential to interfere with a patient’s human rights, in areas such as access to review of their treatment and in relation to delays in appealing clinical decision-making about such treatment.⁶² This could be seen as particularly problematic in relation to children and young people subject to the MHO with the potential for decisions about involuntary treatment to remain unchallenged for up to 2 years, significantly limiting their participatory rights and representing a clear violation of the CRC, for example.⁶³

In the early 2000s, the Bamford Review began what would be a lengthy examination of law, policy, and provisions affecting people assessed with mental health needs and learning disabilities in NI. The Review produced several reports, including one which recommended comprehensive reform of NI’s mental health and capacity laws.⁶⁴ One of the guiding principles underpinning the Review was to incorporate a human rights approach to mental health services and law reform,⁶⁵ given that they failed to respect the dignity of the person and did not promote individual autonomy.⁶⁶ The work undertaken as part of the Bamford Review in the early 2000s meant that full account was not taken at the time of the CRPD, which was adopted in 2007. Following the publication of the Bamford Review reports, there ensued a lengthy consultation period regarding mental health law reform, which was complicated by political instability and the collapse of power-sharing institutions in NI.⁶⁷ After an extended period of time and the eventual restoration of such institutions, the MCANI was eventually passed by the NI Assembly, receiving Royal Assent in 2016. It is considered to be an innovative and ground-breaking piece of legislation, adopting a ‘fusion approach’, which brings together capacity and mental health law across medical specialities.⁶⁸ What this means in practice is that impairment of decision-making capacity and best interests are now the only criteria to be used when making decisions across health and social care.⁶⁹

For present purposes, it is also important to emphasize that the approach taken in the MCANI only applies to those aged 16 years and over. While the default legal position in NI is that a child is ordinarily defined as someone under the age of 18 years,⁷⁰ the age limit applied in the MCANI reflects in large part the approach taken in other pieces of NI and other UK legislation, which recognizes that young people aged 16 years and over can give consent to surgical, medical, and dental treatment. This recognition of the evolving maturity of young people in specified respects was also recognized during the consultation process leading up to the adoption of the MCANI, where it was accepted that those aged 16 years and over should come within its remit and that additional safeguards should be put in place, given the existing definition of a ‘child’ under domestic and international laws.⁷¹ Therefore, the MCANI applies to all those aged 16 years and over with respect to determinations of capacity, and they enjoy the additional safeguards and protections that are in place under the legislation. Once the MCANI is fully implemented, it is anticipated that the MHO will no longer apply to young people aged 16 and 17 years (in addition to those who have reached the age of majority), although it will continue to apply to those under 16 years of age.

To date, there has only been partial enactment of the MCANI, which has involved bringing the Deprivation of Liberty Safeguards (DoLS) scheme into force.⁷² The scheme is accompanied by a Code of Practice, which affirms that mental capacity is to be presumed and the burden of proof (balance of probabilities) is on those seeking to assert incapacity to show otherwise and on the basis of reasonable belief, taking account of the factors noted below. The test for capacity is whether or not a person aged 16 years or over is unable to make a decision for themselves because of ‘an impairment of, or disturbance in the function of the mind or brain’, whether temporary or permanent and whatever its origin.⁷³ A determination of incapacity is time and decision-specific,⁷⁴ and any intervention must be taken on a best interest’s basis.⁷⁵ Factors to be taken into account in determining whether a person has the capacity are based on a functional assessment which includes their ability to understand, use, weigh and appreciate, communicate, and retain the information relevant, or required, to (the process of) making the decision in question.⁷⁶

While the MCANI has been welcomed as being grounded in a human rights approach, it has nevertheless attracted criticism for not being fully compliant with international human rights instruments, in particular the CRPD. This is because the MCANI includes a best interests test as part of assessing capacity for those aged 16 years and over,⁷⁷ instead of drawing a distinction between the notion of legal capacity and mental capacity, as highlighted under Article 12 CRPD.⁷⁸ Making such a distinction would have made clear that questions of mental capacity only refer to the person’s decision-making skills, rather than being used to deny the legal capacity of a person with (mental) disabilities.⁷⁹ During the consultation process regarding the MCANI Bill, there was also stakeholder criticism over the failure to take account of the evolving capacity of those under 16 years of age in the Bill. First, there were concerns about the potential impact on vulnerable children who would not be able to access safeguards and protections under the MCANI (once passed), particularly those in this age range who were assessed as lacking capacity and were being treated as voluntary inpatients. Secondly, the Bill was not compliant with Article 12 CRC in terms of ensuring increased children’s participation in clinical, institutional, and judicial decision-making that impacted provision of mental health treatment.⁸⁰ Thirdly, there had been a failure to include within the Bill a statutory rebuttable presumption of capacity for those aged between 12 and 16 years, as had been proposed by the Bamford Review.⁸¹

In response, the NI Department of Health (or the Department of Health, Social Services and Public Safety (DHSSPS) as it was then known at the time) stated that it did not consider the MCANI Bill to be the ‘vehicle to assess emerging capacity in children’, and it was ‘reluctant to include provisions that could undermine parental authority or have other unforeseen implications on other legislation’.⁸² In light of these identified concerns, the DHSSPS further stated it would establish a separate, cross-departmental project to consider how best to proceed.⁸³ In the end, an amendment to Part 2 of the MHO was introduced via the MCANI in relation to involuntary treatment of children under 16 years of age, which came into effect on 2 December 2019.⁸⁴ There is now an explicit requirement to take account of a child’s best interests as the primary consideration regarding decision-making involving involuntary treatment, where a child under the age of 16 years is ‘being assessed or treated for a mental disorder’.⁸⁵ This includes how to determine best interests in relation to the child;⁸⁶ the provision of independent advocates;⁸⁷ and the imposition of duties upon hospital managers to ensure the patient’s environment in the hospital is suitable having regard to his or her age’ (subject to the patient’s needs).⁸⁸

What follows from the drawing of this aged-based legislative distinction between those over and those under 16 years of age is that the latter group is excluded from accessing a range of safeguards and human rights protections under the MCANI.⁸⁹ In the end, this exclusion appears to have been rooted in concerns about the implications of creating a statutory recognition of presumption of (evolving) capacity for those between 12 and 16 years of age both in and beyond the healthcare context. This is in addition to what it would mean for the idea of parental responsibility as understood under both the NICO and the common law.⁹⁰ In the next section of the article, we turn to examine case law in the England and Wales jurisdiction which has examined the evolving capacity of children in relation to the provision of healthcare treatment, and consider its relevance for the NI context.

C. Children, young people and evolving capacity: the jurisprudential position

In this section of the article, we draw on select examples from jurisprudence in the England and Wales jurisdiction, which have examined questions of capacity, best interests, and parental responsibility for those between 12 and 16 years of age. This is on the basis that such jurisprudence continues to be relevant in the context of NI’s mental health and capacity legal framework applicable to children and young people. A key starting point is the early seminal House of Lords judgment in Gillick which recognized children as ‘right-holders’,⁹¹ holding that where children are found to be of ‘sufficient intelligence and understanding’, the ‘parental right yields to the child’s right to make his [/her] own decisions’.⁹² Following this case, Gillick competence became the established test for determining whether those under 16 years of age had the capacity to consent to medical treatment. In the more recent judgment of the Court of Appeal in Bell v Tavistock, it confirmed that, in line with Gillick, it remained a matter for clinicians rather than the courts to assess in consultation with their young patients whether they were competent to consent to the medical treatment in question.⁹³

Where particular difficulties have arisen for the courts is where a child wishes to exercise full autonomy and refuse life-preserving medical treatment. In this regard, it has been recognized that Gillick competence is not absolute. This was noted by Lord Donaldson in Re R (A Minor) (Wardship: Consent to Treatment) where it was held that it was still within the court’s jurisdiction to override decisions by ‘Gillick competent’ children.⁹⁴ In particular, how to interpret when a child was able to refuse such treatment has proved to be a difficult proposition for English courts.⁹⁵ In such cases, the courts have for the most part taken the view that a child who is under 16 years of age is not able to refuse medical treatment, particularly life-saving treatment. Limiting a child’s autonomy within this context is justified for two main reasons: first, the more serious the condition the greater understanding and capacity required⁹⁶ and secondly, refusal of life-saving treatment can ‘threaten’ a child’s welfare and the court has a duty to intervene in such cases.⁹⁷ As Cave has observed, it is in such cases that the Gillick test has ‘shown signs of strain’.⁹⁸

Indeed, English courts’ conservatism in this regard has even extended to overriding refusals involving medical treatment where the young person is over the age of 16 years. This was exemplified in the An NHS Foundation Hospital v P,⁹⁹ where a 17-year-old young woman refused life-saving treatment after an overdose. Despite an on-call consultant psychiatrist assessing her as having the capacity to make her own decisions, the court found it had a ‘positive and operational duty’ under Article 2 ECHR to act, even where a Gillick competent child refused treatment.¹⁰⁰ While the court welcomed the child’s participation during the proceedings and acknowledged that her wishes and feelings were ‘an important component of the analysis of [her] welfare’, particularly in relation to Article 8 ECHR, they were not ‘decisive’ and did not outweigh the courts’ obligations under Article 2 ECHR to preserve life.¹⁰¹ It was therefore held to be within the court’s inherent jurisdiction to overrule the young woman’s decision, with her best interests and welfare being the paramount consideration.¹⁰² In the case of E & F (Minors: Blood Transfusions), the two young people in question were Jehovah’s Witnesses and were assessed as being Gillick competent. They wished to refuse life-saving treatment in the form of blood transfusions, if this became necessary during medical treatment. The Court of Appeal refused their appeals holding that while there was a need to balance ‘two transcendent factors: the preservation of life and personal autonomy’, it was the ‘welfare principle’ that remained the overriding consideration in the circumstances, particularly where there was a significant risk of harm or death.¹⁰³

English courts have also been prepared on occasion to flex their judicial muscle to override parental consent in relation to the provision of medical treatment to children. Indeed, in exercising their inherent jurisdiction, the courts have made it clear that their role is to ‘take over the parents’ duty to give or withhold consent in the best interests of the child’.¹⁰⁴ This was highlighted in the case of An NHS Trust v MB, where Justice Holman justified the decision to take this course of action on the grounds that parental views can become ‘coloured’ due to the emotive nature of such cases. While this might be ‘understandable in human terms’, the primary concern of the courts must remain the ‘objective best interests of the child’.¹⁰⁵ Indeed, the position regarding the court’s inherent jurisdiction to overrule parental preferences continues to hold legal weight.¹⁰⁶ Such cases highlight the English courts’ preparedness to override both child and parental/guardian decision-making regarding the issue of consent to, or conversely the refusal of, medical treatment, thus taking on the role of the ‘judicial reasonable parent’.¹⁰⁷

However, what is of particular interest for the NI context is how the courts have engaged in reasoning about the appropriate balance to be struck between parental/guardian roles and responsibilities, and the child’s best interests in the context of evolving capacity. We highlight a few examples of varying judicial approaches to the issue. In the case of Mabon v Mabon and others, it was held that the children in question—aged 13, 15, and 17 years—had a right to separate legal representation. In granting this request, the court expressly referred to Article 12 CRC and noted that the judgment provided ‘a timely opportunity to recognise the growing acknowledgment of the autonomy and consequential rights of children, both nationally and internationally’.¹⁰⁸ In a later case of F (mother) and F (father),¹⁰⁹ the parents of two children aged 11 and 15 years, respectively, were in dispute over whether their children should receive the measles–mumps–rubella vaccine. While the children’s views were noted (giving a tokenistic nod to autonomy and participation principles)—both were against receiving the vaccines—the court ultimately took the position that their views were not ‘balanced’ and they should therefore receive the vaccine based on the welfare principle.¹¹⁰ As Cave has observed, what was problematic about the judgment was the way in which the court effectively sidelined the views of the children, focusing for the most part on the differing positions held by the parents.¹¹¹

Although not strictly concerned with medical treatment, the case of Re D (A Child) is instructive with respect to how the court viewed competing rights: on the one hand, the rights of the young person in question under Article 5 ECHR (right to liberty and security); and on the other hand, those of the parents under Article 8 ECHR (right to private and family life), as well as the common law and statutory provisions, such as the Children Act 1989. The legal issue at stake in the case was whether parental consent with regard to the living arrangements for a 16-year-old boy contravened his Article 5 ECHR rights. While the court recognized that the boy’s welfare should be ‘the paramount consideration’, it nevertheless went on to find that parental rights were not absolute and that the degree of supervision to which he had been subjected was ‘not normal for a child of his age’. In the circumstances, a parent/guardian could not authorize what would be a breach of their child’s Article 5 ECHR rights, regardless of whether a child has a mental disability or not (referring to Article 7 CRPD).¹¹²

In the wake of the Re D judgment, academic commentators such as Ruck Keene and Xu have raised concerns about its legal and practical implications; the scope of ‘parental responsibility’ as defined under section 3 of The Children Act 1989,¹¹³ and how DoLS schemes would likely work now in practice in the case of young people.¹¹⁴ In contrast, Cave suggested that the judgment actually demonstrated the ‘potential’ of English courts to modernize the common law and ensure that the human rights of children are safeguarded.¹¹⁵ In the context of NI’s mental health and capacity laws, it is also clear that Re D applies. A parent, or anyone else with parental responsibility, cannot agree or consent to a deprivation of liberty for those aged 16 and 17 years of age. If a deprivation of liberty is sought, and no other statutory power can be used, then the MCANI can be used to authorize this. However, if a DoL is required in a psychiatric hospital due to a mental disorder as specified under the MHO, for example, then that should be the legal framework used.¹¹⁶

The case of Re X (A Child) (No.2) is also illuminating, revealing the extent to which English courts are prepared to exercise their protective inherent jurisdiction over a young person described as ‘mature and wise beyond her years’.¹¹⁷ The case involved a 15-year-old (almost 16 years old) who had refused a blood transfusion on religious grounds. The court made clear that even where a young person was considered to be Gillick competent or was otherwise presumed to have the capacity under relevant legislation, they should not be considered as ‘autonomous’ in all circumstances.¹¹⁸ In the context of a young person’s refusal of life-preserving medical treatment, it was held that the court was entitled to overrule such a decision sitting in its inherent jurisdiction until they reached the age of 18 years, if it viewed the decision as not being in their best interests.¹¹⁹ In seeking to give proper consideration to the young person’s Gillick competence and existing ECHR rights, the court went on to order that a single blood transfusion be administered, but refused to approve a rolling programme of transfusions over a 2-year period, on the grounds that as it ran the ‘risk of privileging medical paternalism over judicial protection’ and would diminish the young person’s human dignity.¹²⁰

With English jurisprudence continuing to play an important role in the NI’s mental health and capacity legal framework applicable to children and young people, what can we draw from the select case law examples highlighted above? While questions of children’s evolving capacity are taken into account by English courts, such examples serve to highlight how this is likely to be determined on the facts in individual cases. In addition, how the courts have responded to human rights considerations in the context of children’s medical treatment has been, and continues to be, ‘haphazard’,¹²¹ reflecting what we would suggest is a degree of ongoing judicial discomfort with respect to fully engaging with a human rights-based approach in this context. While there appears to be a prima facie assumption that a child’s evolving capacity will be taken into account in line with Gillick, and balanced against the competing parental/guardian preferences, the courts invariably revert to a best interests assessment in line with their inherent jurisdiction powers to override children’s refusals of life-preserving medical treatment. While there was clearly more judicial comfort in Re D in terms of addressing the interference with the child’s Article 5 ECHR rights where it involved deprivation of liberty, this was much less evident in the case of Re X where it involved recognizing a young person’s capacity to refuse life-preserving medical treatment. In this case, rights-based considerations were only factored into the way in which the medical treatment in question was to be administered.

Part of the problem experienced by English courts in assessing questions of evolving capacity for those under 16 years of age may also reflect the expert evidence they hear from medical practitioners who may also be struggling to assess capacity in their young patients. In the context of mental healthcare, accessing and according due weight to children’s participatory rights and their ability to make decisions can become extremely problematic. What constitutes capacity can be difficult to conceptualize and define. It may be the case that medical practitioners who work with children and young people need to apply their ‘experience and instinct’ when accessing children’s agency within various contexts.¹²² There can also be ‘areas of confusion’ surrounding when a child has the capacity to refuse treatment¹²³ or suffers from ‘reduced capacity’.¹²⁴ In such circumstances, taking judicial account of evolving capacity in line with a human rights-based approach may not always be straightforward.

In sum, our review of select case law examples highlights the fact that English courts continue to struggle with delineating the boundaries of the relationship between a child’s evolving capacity; the role of parents/health professionals in this regard; how to take account of best interests and incorporate a human rights-based approach that focuses on principles of autonomy and participation, where appropriate.¹²⁵ This is particularly acute where a given set of facts involves decision-making arising from a child’s refusal of life-preserving medical treatment. However, what it also makes clear is that the NI Department of Health’s decision to exclude children under 16 years of age from the remit of the MCANI on the grounds that it could ‘undermine’ parental responsibility,¹²⁶ is not justifiable in light of current jurisprudence on the issue. This is because English courts have made it clear that the primary consideration is the child’s best interests, and this is not overridden by parental responsibility (per Mabon). The courts have also indicated that account should be taken of human rights considerations in the specific circumstances of a given case. Indeed, a focus on the specific facts of a given case, rather than adopting a generalized approach, has been the approach taken by English courts time and time again in terms of dealing with children’s evolving capacity in the context of medical treatment.¹²⁷ This should give us pause for thought in formulating reform proposals for improving NI’s mental health and capacity legal framework, including whether legislative reform is the best way forward. This is not straightforward, given the neurological, professional, and practical complexities faced when dealing with questions of children’s evolving capacity in the context of healthcare decision-making, including their mental healthcare.¹²⁸ We now turn to the next section of the article to examine potential options for (law) reform as part of driving improvements to mental healthcare provision for children and young people in NI.

III. WHICH WAY FORWARD?

There have been several proposals put forward for reform of NI’s mental health and capacity legal framework applicable to children and young people. As mentioned previously, in the early to mid-2000s, the Bamford Review examined a range of options in this area, recognizing that the ‘special needs’ of children must be both recognized and protected.¹²⁹ This led the Review to recommend the introduction of a statutory rebuttable presumption of capacity in the case of children aged between 12 and 16 years. This would have been in addition to ensuring that children were afforded the same statutory protections as adults, where capacity assessments would result in ‘significant restrictions’ or ‘deprivation of liberty’, for example.¹³⁰ Although consistent with the approach taken under the common law (per Gillick competence), as well as a human rights-based approach,¹³¹ NI policymakers opted in the end not to transpose the Review’s recommendation in this regard into the MCANI (when fully in force), for the reasons previously outlined. As a consequence, those under 16 years of age would continue to be excluded from the protections provided under the MCANI, if they were assessed as lacking capacity.¹³²

While some provision has now been made to take account of best interest considerations in relation to involuntary treatment under the MHO, it nevertheless remains an outdated piece of mental health legislation, as previously noted. Indeed, what is particularly troubling is that the MHO continues to remain in operation in the absence of the MCANI being fully brought into force and so continues to apply to all children and young people under the age of 18 years. This is against a background where it was initially seen as a transition measure following the adoption of the MCANI in 2016. However, with successive collapses of NI power-sharing institutions since that time, there has been a lack of political impetus towards ensuring that the legislation was fully brought into force, alongside appropriate resourcing and funding being in place. At the time of writing, it is now 8 years since the MCANI was passed, with no indication offered by the NI Executive as to when all of its provisions will come into force. This looks likely to be the case for the foreseeable future. Therefore, MHO remains in place, notwithstanding statements to the contrary.¹³³ This lamentable state of affairs has adverse implications not only for young people (ie, those aged 16–17 years who would come within the remit of the MCANI when fully in force), but we suggest it also serves to inhibit ongoing evaluation over time about how best to embed a human rights-based approach for children under 16 years of age within NI’s overarching mental health and capacity legal framework. At the very least, we would suggest that statutory guidance be published by way of MHO and MCANI Codes of Practice, which should be focused on the assessment and treatment of children and young people. Doing so would enable the following: first, to provide updated/current guidance on English case law developments in the area; secondly, to facilitate regular stakeholder consultations to evaluate what is and is not working in practice; and finally, to embed best practice in terms of enhancing a human rights approach in relation to managing mental health and capacity issues in children and young people.

Although it has been observed that the use of Codes of Practice in relation to ‘mental health governance’ is a ‘peculiarly UK phenomenon’,¹³⁴ it should be noted that their use in this area has raised concerns, with evidence available as to inconsistency in their interpretation and application by providers.¹³⁵ Notwithstanding such concerns, we consider their use to be beneficial in the NI context for a number of reasons. First, they could include key principles and statements as to best practice and reflect evolving legal and policy dynamics in the field.¹³⁶ Secondly, they could encourage a shift in professional and institutional cultures over time to better inform a human rights-based approach to mental health and capacity laws applicable to children and young people. Finally, such Codes operate as flexible, soft law instruments that can much more easily accommodate changes in practice than would be the case with primary legislation.¹³⁷ Given NI’s current political dynamics, having such flexibility means that Codes of Practice are a much more realistic and achievable law reform option in the short term. Indeed, and as mentioned previously, they are already in use in terms of providing guidance in areas such as DoLs, for example, with the NI Department of Health being permitted to revise them under both the MCANI and MHO in specified circumstances.¹³⁸ In the case of the MCANI, the requirement is explicit with the Department being ‘required’ to publish Codes of Practice ‘for the guidance of persons assessing whether a person who is 16 or over has capacity in relation to any matter; and for the guidance of persons acting in connection with the care, treatment or personal welfare of another person who is 16 or over…’,¹³⁹ and they can be taken into account where relevant by the courts.¹⁴⁰ It is therefore regrettable that such Codes have not been published to date.

In terms of proposing law reform to better embed a human rights-based approach within NI’s mental health and capacity legal framework, we suggest that particular account should be taken of key rights set out in the CRC.¹⁴¹ In this regard, it would be important that the legal framework recognizes that children have certain universal needs and protections by virtue of them being ‘children’, while also acknowledging that children as a ‘group’ are diverse. For example, the MHO applies in its entirety to children under the age of 16 years, which results in a failure to view children as a distinct group with particular needs. This is contrary to Article 2(2) CRC, which requires that States ensure that children are protected against ‘all forms of discrimination’. In the absence of the MCANI being fully in force, it is an approach that could lead not only to considerable stigmatization of children whose treatment needs do not align with legislation that was primarily designed with adults in mind, but also because it could be argued that the design of the MHO is insufficiently flexible to offer a nuanced response to managing the evolving capacity of children and young people.¹⁴²

As Byrne and Lundy have pointed out, it is vital that children understand their rights, in line with Article 42 CRC.¹⁴³ If the law is not clear, and in an accessible format suitable for a child’s age and capacities, then children cannot fully engage with their participatory rights (Article 12), their rights to freedom of expression (Article 13), or their rights to access to information (Article 17), all of which have been described as ‘crucial prerequisites for the effective exercise of the right to be heard’.¹⁴⁴ Clarity is especially important when dealing with issues which greatly impact children and young people’s lives, such as deprivation of liberty orders and the provision of medical treatment. This is also relevant in the context of Article 12 rights involving a child with a disability (including a mental impairment). As confirmed by the UN Committee on the Rights of the Child, a child who has a disability is not deprived of their Article 12 rights, nor does it limit the weight that should be given to the views expressed.¹⁴⁵

When assessing a child’s best interests, what also becomes clear is that English courts, legislators, and policymakers place insufficient emphasis on a child’s voice and agency in healthcare decision-making, including their mental healthcare. While recognizing the importance of best interests and life preservation principles, there is a need for greater attention to be paid to a child’s autonomy and participatory rights in order to be CRC compliant, in particular with respect to the role of law in recognizing children’s Article 12 rights. While there is no hierarchy of CRC rights, how an adult (or court) views a child’s best interests should not override the duty to respect such rights.¹⁴⁶ Therefore, tokenistic references to children’s views are not enough,¹⁴⁷ in circumstances where greater visibility of CRC rights is required.¹⁴⁸ In particular, compliance with Article 12 CRC requires that legal frameworks are designed to ensure that support is provided for the participation of children and young people in decision-making processes that impact them. Up until relatively recently, the lack of recognition given to such participation within NI’s mental health and capacity legal framework, as well as how this then impacts mental healthcare treatment and services for children and young people, has been stark.¹⁴⁹

Ideally, taking account of CRC rights would involve fully incorporating the Convention into domestic law, which has not happened to date.¹⁵⁰ Absent that, the NICCY operates as an independent champion of children’s rights, seeking to hold NI’s political leaders and policymakers to account with respect to driving improvements to mental healthcare services, as well as the laws, applicable to children and young people. For the past 4 years, the Commissioner has produced a yearly report card on such services, as well as demanding increased transparency from the NI Executive with respect to data collection and analysis to drive improvements in the area.¹⁵¹ More recently, there have been more examples in NI policy documentation where account has been taken of the CRC.¹⁵² However, it is currently a piecemeal, rather than a whole-of-government, approach. This needs to change, particularly in light of the recent call on the part of the UN Committee on the Rights of the Child for ‘mandatory child-rights impact assessment procedures for legislation and policies relevant to children’ to be developed and implemented in NI.¹⁵³

Any proposals for reform of NI’s mental health and capacity laws must take into account how it fits within a holistic, rights-based approach to improving mental healthcare provision for children and young people in NI.¹⁵⁴ While the NI Executive has promised to increase funding in CAMHS to bring it into line with the rest of the UK (up to 10 per cent of the overall NI mental healthcare budget), it is not exactly clear how and when this will take place. In the meantime, problems persist with respect to facilitating children’s timely access to suitable mental healthcare and related services.¹⁵⁵ In promising such reforms, little, if any, reference is made to the importance of a (children’s) rights-based approach in relation to driving improvements in mental healthcare provision, as well as the legal framework, in order to better address their needs. This is highlighted by the fact that, while CRC rights are clearly foregrounded in NI Children and Young People’s Strategy, this is not the case in the NI Mental Health Strategy.¹⁵⁶

In order to facilitate a more holistic, joined-up approach, there is a range of options available to NI policymakers. Consideration should be given to creating a standing expert advisory group, to be supported by the NI Department of Health, which would draw together civil society actors, as well as clinical, legal, and other experts, to advise on effective implementation strategies in mental healthcare provision and related laws. This could be in addition to establishing a standing consultative group, comprised of children and young people, who could participate in the process and offer their views on such matters. In terms of facilitating executive accountability, a suitably constituted standing Committee should be established in the NI Assembly, which could undertake regular reviews of policies relating to education, health, and social care policy involving children and young people in NI. This could also include regular evaluations of how NI’s mental healthcare services and related laws are working in practice for their benefit. With support from the NICCY in terms of independent monitoring, the Committee would then be in a position to offer suitable recommendations for driving improvements in the area over time.

IV. CONCLUSION

This article examined current NI’s mental health and capacity laws applicable to children and young people. As things stand, such laws lack clarity and coherence, resulting in dysfunction in mental healthcare provision and a failure to ensure appropriate human rights protections. This is particularly problematic in relation to addressing the issue of evolving capacity for children between 12 and 16 years of age. There needs to be a cultural and political shift in NI which is reflected in the over-arching mental health and capacity legal framework that fully recognizes the autonomy of children and young people as rights-holders. In the short term, reform should involve the publication of Codes of Practice linked to the relevant legislation which would provide guidance on the management of mental health and capacity issues applicable to children and young people. Such Codes are flexible, non-legally binding instruments that could better embed rights-based norms, as well as offer guidance on how this can be implemented in practice. In the medium term, further reform should involve the full implementation of NI’s mental capacity legislation (ie, MCANI). In order for such reforms to be effective, they need to take place in the context of a holistic, whole-of-government approach to ensure appropriately funded and resourced mental healthcare services for children and young people, in circumstances where there is equality of access in a timely manner. Such reforms need to be accompanied by a political commitment on the part of the NI Executive towards greater adherence to the CRC in mental healthcare law, policy, and practice. Given persistent political dysfunction, such reforms are long overdue. NI’s children and young people deserve better, for reasons of justice, fairness, and equality.

Footnotes

ACKNOWLEDGEMENTS

An earlier version of this article was presented by the second author at the Northern/Ireland Health Law and Ethics Network on 24 June 2021. The authors would like to acknowledge the helpful feedback received at the workshop, as well as that provided by the anonymous journal reviewers. The support of Wellcome is gratefully acknowledged.

Funding

‘A Research Network in Healthcare Law, Policy and Ethics on the island of Ireland’ (218831/A/19/Z), Wellcome.

Conflict of interest. None declared.