Sir: Moli Paul, in his letter (Psychiatric Bulletin, January 2000, 24, 31), refers to Section 133 of the Mental Health Act 1993 (he in fact refers to Section 10(2) of the Act which we assume to be a typographical error) which deals with the informal admission of patients, including children, under the Act. He then analyses the guidance in the 1999 Mental Health Act Code of Practice.

The 1999 Mental Health Act Code of Practice has a number of functions, which include providing essential reference guidance on practice and giving guidance on how the law, whether contained in statute or case law, should be applied.

The Code correctly summarises the law in relation to treating a child, that is any person under the age of 18, without their consent (code para. 31.12). The Code refers to the leading case in this area, Re: W, (1992) which states that the refusal of a child to be treated cannot override a consent to treatment by either the court or someone with parental responsibility. The court in Re: W went on to emphasise that the child's refusal:

Be that as it may the court, or person with parental responsibility, can and will continue to ‘trump’ the child's refusal in certain circumstances, even if the child has capacity. The most striking recent example of this was in July 1999 when a judge overrode the wishes of a 15-year-old girl who refused to consent to a heart transplant (Re: M, 1999). The judge's decision was based on the objective of seeking what was best for the child.

Dr Parkin suggests that there are inconsistencies between good clinical practice and the guidance in the Code. It would be more accurate to say that there are inconsistencies between the current law and good clinical practices. The foreword to the Code acknowledges that the Mental Health Act is increasingly out of date. Unfortunately, the Government, in the proposed reform of the Mental Health Act (1999) has not adopted the recommendations of the expert committee in this area. The Committee recommended that there should be a “threshold of 16 years for the presumption of capacity to make treatment decisions i.e. to both accept and refuse treatment” and in the case of children from 10-16 years old there be a rebuttable presumption of capacity.

Dr Paul refers to the Code's guiding principles which provides that a patient should be treated in such a way as to promote to the greatest practicable degree the patient's self-determination and personal responsibility, consistent with their own need and wishes (Code para. 1.1). In practise this means that, insofar as is practicable, the patient's treatment wishes will be respected, but when not practicable their own treatment decisions will be overridden, by using the Mental Health Act.

The difficulty with this discussion is the inter-relationship between the provision of non-consensual medical treatment for mental disorder and the provision of medical treatment without consent. The former can be provided without consent and subject to certain safeguards under the Mental Health Act. The latter in the case of adults depends on an assessment of capacity. If capable an adult cannot be given medical treatment without their consent. If incapable the doctrine of necessity applies and treatment can be given if the treatment is in the patient's best interests (Re: F, 1990). In the case of a child even if the child has capacity their refusal to be treated can be overridden. This is the position as stated in Re: W.

The Mental Health Act abridges a patient's autonomy. As the Act is not age specific this will encompass children. Children do not have complete autonomy in the field of medical treatment, as is reflected in the common law. Code guidance has to incorporate guidance on statute and the common law. The general guidance in the Code reflects the qualification of autonomy for detained patients. It can also be applied to the additional reduction of autonomy, which may be experienced by the child patient, even if the child's legal status is informal. The Code reflects reality, tacitly acknowledging an abridgement of autonomy, which in certain circumstances will result in detention.

As the Code correctly summarises the law it is incorrect to state that it ‘creates’ inconsistencies (Parkin, Psychiatric Bulletin, October 1999, 23, 887-889) or undermines the child's rights. All the Code does is highlight what may be regarded as the conflicts between the current law, current clinical practice and the child's human rights. This is the area where the debate needs to be focused. In particular whether the competent child's human rights have been infringed where a decision to override their treatment decisions has been made.