oct ewj 24 online - Flipbook - Page 66
(ii) the child is assumed to have legal capacity in accordance
with section 8 [Family Law Reform Act 1969], unless
to what else is needed and how to tell whether the
person has it.
(iii) the child is shown to lack mental capacity as defined in sections 2(1) and 3(1) of the Mental Capacity Act 2005.
Our wait for the next iteration of the MCA Code
continues; that may give an opportunity for clarification, but cannot make the law. Given that there is ever
greater focus on the ability of children to make their
own decisions, not least in the context of gender affirming treatments, I would hope that we can get
(likely appellate) level of the position sooner rather
than later. In the meantime, and not just because I was
in NHS Trust v X, I would suggest that Sir James
Munby’s analysis – the most detailed since the MCA
2005 came into force – is the correct one.
Sir James Munby’s approach has recently been
followed by Cusworth J in the context of life-sustaining treatment (see here), and also MacDonald J in the
context of gender-affirming treatment (see here).
Conversely, it would be possible to read the decision of
Judd J in O v P & Anor [2024] EWHC 1077 (Fam)
(also concerning gender-affirming treatment) as if
Gillick competence remained the test post-16. However, this was not the central focus of the case,[2] so it
is not clear that this can be prayed in aid as a case in
the competence camp.
[1] To the extent that Cobb J was directing himself by
reference to E & F, it is worth noting that the question
of competence / capacity was not in issue before the
Court of Appeal, which also used the two phrases interchangeably (including in relation to a child below
16 – see paragraph 67); that decision cannot therefore
be said to represent a definitive determination of the
position.
On one view, we are in the unhelpful situation in relation to 16 and 17 year olds where four possibilities
present themselves:
l Mental capacity and competence mean different
things and some judges are applying the wrong test.
l Mental capacity and competence mean the same
thing, in which case interesting (as in difficult)
questions apply as to why Parliament uses the two different terms in the same legislation (see for instance
the Mental Health Act 1983 provisions relating to
treatment in the community, which draw a distinction
between competence for children under 16 and
mental capacity for those aged 16 or over).
[2] Which was, in effect, on whether the court could or
should ever prevent a child (with the requisite ability)
from consenting from treatment being offered by a
treating doctor (see paragraph 57). As Judd J implicitly recognised, and the Cass Review explicitly sets out
in chapter 16, any treatment, whether gender-affirming or otherwise, must be clinically appropriate for it
to be on the table (and hence for questions of competence / capacity to be relevant)
l Mental capacity is the test to apply in some medical
treatment situations but not others, in which case the
question arises to which test to apply and why.
Author: Alex Ruck Keene
Alex is a barrister, writer and educator, and creator of
the website www.mclap.org.uk
www.mentalcapacitylawandpolicy.org.uk
l Mental capacity is necessary but insufficient, which
may feel intuitively true, but again raises questions as
Mr Nicholas Morris
Consultant Obstetrician and Gynaecologist
MBBS
MEWI
MRCOG
FRCOG
With over 15 years’ experience of Medico-Legal work I am trained in report writing, giving evidence
in the Crown Court and the Coroner’s Court. I also lecture on these topics.
I undertake 100 cases annually, 10% Single Joint Expert, 70% Claimant, 20% Defendant.
I am an AVMA and MPS Panellist.
I am now in full time private practice, and run both a Clinical and Legal Practice.
I see patients for Medico-Legal Consultations in London, Birmingham and Manchester.
Contact: Zainab Orekan /Sonya York 0208 3711510
Email: rapidaccess@hotmail.co.uk
- Web: www.rapidaccessgynaecology.co.uk
The Gynaecology Chambers, 15 Dollis Park, London, N3 1HJ
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