Mr. James Kelly:

Policy responsibility for the Assisted Decision-Making (Capacity) Act rests with the Department of Children, Equality, Disability, Integration and Youth. I was not involved in the drafting of that Act but I understand the age of 18 was chosen for a number of reasons. Healthcare is only one of the many areas the Act deals with.

It also covers decisions relating to finances and other aspects of life. It is for that Department to decide whether the age should be reduced to 16, but I understand there would be a lot of consequences to such a decision. It is outside of the control of our Department. As I mentioned earlier, we are bringing consent for mental health treatment for 16-year-olds and 17-year-olds in line with consent for physical treatment. A 16-year-old can decide whether he or she wants to have surgery but cannot, at the moment, decide whether to attend a mental health service. That decision is made by the parents. We want to remedy that disparity between physical and mental treatment. Those aged 16 or 17 who have physical conditions are also not covered by the Assisted Decision-Making (Capacity) Act 2015. There is a gap on all sides in that regard, not just in respect of mental health. It is coming to light on our side because we are reducing the age of consent for mental health treatment to 16 whereas that is already the case for those aged 16 or 17 accessing physical health treatment.

Because that Act does not apply to that age cohort at the moment, we have left it up to the Mental Health Commission to make the guidelines as to how to assess capacity for those aged 16 and 17, how such capacity assessments are to be carried out and who should carry them out. That is our fix for the moment but, if the Department of Children, Equality, Disability, Integration and Youth were to decide to reduce the age specified in the Assisted Decision-Making (Capacity) Act to 16 from 18, we would, of course, reconsider the provisions we have included. However, this is our workaround - for lack of a better word - for now because that Act does not apply to 16-year-olds and 17-year-olds. We are trying to bring the principles of that Act into our own Act in a sense. We are trying to make sure the capacity assessments are as similar as possible to those carried out under the 2015 Act.