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Chapter 2
Admission of children
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Assessment of capacity of child aged 16 years or older to consent to admission, care and treatment
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61. (1) Where, in respect of a child aged 16 years or older—
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(a) a consultant psychiatrist or another mental healthcare professional, and
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(b) the child’s parents or guardian or the Agency,
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reasonably consider that the child may lack the capacity necessary to consent to or refuse his or her admission or care and treatment under this Part, the responsible consultant psychiatrist shall carry out a capacity assessment of the child or arrange for another mental healthcare professional to carry out a capacity assessment to assess if the child has the necessary capacity to make the decision concerned (in this Act referred to as a “capacity assessment”).
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(2) Where, following the completion of a capacity assessment of a child aged 16 years or older under subsection (1), the responsible consultant psychiatrist or other mental healthcare professional concludes that the child lacks the capacity necessary to consent to or refuse his or her admission or care and treatment, the responsible consultant psychiatrist shall arrange for a second capacity assessment of the child to be carried out by another consultant psychiatrist or another mental healthcare professional.
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(3) The second capacity assessment shall not be carried out by a person who is or will be involved in the care and treatment of the child concerned.
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(4) Where, following the completion of a capacity assessment under subsection (1) and a second capacity assessment under subsection (2), both mental healthcare professionals who carried out the capacity assessments conclude that the child, the subject of the assessment, lacks the capacity necessary to consent to or refuse his or her admission or care and treatment under this Part, then the child shall be assessed as lacking capacity in that respect.
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(5) A capacity assessment and, where applicable, a second capacity assessment shall be—
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(a) arranged for and carried out as soon as practicable, and
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(b) carried out regularly, with the frequency of review based on the individual needs of the child concerned, and in any event not less than once every 14 days, to assess whether the child continues to lack the necessary capacity to consent to or refuse treatment.
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(6) Where, following the completion of a capacity assessment under subsection (1) or a second capacity assessment under subsection (2), the mental healthcare professional concerned concludes that the child, the subject of the assessment, does not lack the capacity necessary to consent to or refuse his or her admission or care and treatment under this Part, then that child shall be assessed as having capacity in that respect.
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(7) A capacity assessment carried out under subsection (1) or (2) and the findings thereof shall be retained and recorded in the child’s medical records.
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(8) Where a child aged 16 years or older is making a decision regarding his or her admission or care and treatment under this Part, he or she may consult with—
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(a) his or her relevant consulted carers, or
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(b) his or her nominated person.
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(9) The child and the persons referred to in paragraphs (a) and (b) of subsection (8) shall be entitled to be furnished with copies of a capacity assessment in respect of the child on request.
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(10) A relative of a child shall be disqualified from carrying out a capacity assessment in respect of the child.
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(11) The Commission shall prepare and publish a code of practice in relation to capacity assessments under this section.
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