3.2 Mental capacity, mental health services and the law
Sometimes children and young people demonstrate worrying or dangerous behaviour towards themselves or others. Usually support and treatment, can be provided with their cooperation and consent. Sometimes, however, they do not consent and family members and professionals have to make the difficult decision as to whether support and treatment should be given compulsorily. This will often involve admission to a residential care home or hospital from which the child or young person is not allowed to leave. It may also include the enforced administration of medication against their will. These decisions must be lawful and the least restrictive option available.
Mental health legislation for detaining a person requires a qualified person specified in law to make a judgement that the person – be they a child, a young person or an adult – has a mental disorder which requires treatment and compulsory detention. Such treatment must be deemed to be in the best interests of the person and, in some cases, for the protection of others. The informal term used to describe this legal detention and treatment is ‘’, as it refers to a section of mental health law.
Mental capacity legislation generally has a broader remit. It is used when a person may be a risk to themselves or others usually due to impaired mental capacity to make autonomous or age-appropriate decisions as might be the case for someone with severe learning disabilities, for example. Some people may need to have their liberty constrained, such as in a locked or restricted care home. They may not have a mental illness that is treatable.
For children and young people under 16, those with parental responsibility are usually in a position to provide consent, unless a court determines otherwise. If it is necessary to deprive 16- or 17-year olds of their liberty, this should be done under mental capacity or mental health legislation. Such a decision requires a thorough knowledge of the law to ensure that any such detention and treatment are safe and lawful.