What does the law say about 'mental capacity'?
What is 'mental capacity'?
Mental capacity is the ability of a young person over the age of 16 to make their own decisions. This means being able to:
- understand information given to them in relation to a decision
- remember the information long enough to make a decision
- use or weigh up the information available
- communicate their decision in any way which can be recognised
If they are unable to meet these criteria, they are considered to be ‘lacking capacity’. This can include young people with learning disabilities, mental health problems or brain injury.
When a young person over the age of 16 has been assessed as lacking mental capacity, there may be many different people and agencies involved in making decisions on their behalf, depending on the complexity of the situation. This includes parents, medical and educational professionals and other agencies.
The Mental Capacity Act 2005 (MCA) provides a clear framework for parents on who should be consulted in the decision-making process, and in what circumstances (for example in life-saving treatment).
When does a young person have 'mental capacity'?
In law, young people aged 16 and over are presumed to have capacity. They can consent to, or refuse, treatment in their own right, including hospital admission.
They can refuse access to their medical records and not give consent for clinicians to disclose information to parents.
The MCA does not apply to under 16s. In order to decide whether a child under 16 is able to consent to their own medical treatment, without the need for parental permission or knowledge they are assessed to establish if they are competent to make such decisions. This assessment is referred to as ‘Gillick Competence’.
Making sure you and your child receive your rights
For more information on legal support and where you can get help, have a look at our parents guide to legal support.