Mr. Diego Castillo Goncalves:

I might come in here and touch on our concerns regarding consent for under-16s. In this respect, we acknowledge the expert group recommended in 2015 that there should not be an automatic presumption of capacity for children under the age of 16 and that the provisions made in respect of children under 16 are in line with the recommendations made by the expert group. We have no immediate difficulty with that proposal. We also support the involvement of the child's parent or guardian in decision-making regarding the child's prospective admission and treatment in an approved facility.

However, having regard to the provisions of the UN Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, we are concerned that the use of a purely age-based approach in respect of children who are under 16 does not have sufficient regard to the evolving capacities of children, including in regard to making decisions about their own mental health and treatment. In this respect, we would favour the more nuanced approach that was previously proposed by the Law Reform Commission and the special rapporteur on child protection.

It might be helpful to explain what we mean by this nuanced approach. We suggest provision could be made such that a child under 16 years could give or refuse consent to his or her admission, care or treatment in circumstances where it has been established the child has the maturity and understanding to appreciate the nature and consequences of the specific decision in regard to his or her admission or treatment. This would arise when the young person understands the treatment, why it is being recommended and what will happen if he or she accepts or refuses it. In our view, this case-by-case basis approach would be more aligned with a child rights-based approach and with relevant provisions of both the Convention on Rights of the Child and the Convention on the Rights of Persons with Disabilities. It can be seen in other jurisdictions, including the UK and Canada, as referred to earlier. In Canada, for instance, there is not an age-based approach at all.

As for who will make the decision, one concern we have is that, although the guiding principles provide for a child of under 16 who is capable of forming his or her own views to be consulted and to have due weight given to his or her views, the heads of the Bill appear to be silent on the matter the Deputy raised relating to who will assess and determine whether a child of under 16 is capable of forming those views and how this will be done. It also appears that the heads of the Bill, in their current form, are silent on what measures will be taken to ensure due weight will be given to the child's views, including in regard to his or her proposed admission. Another concern is that a subsection of the general principles relating to whether a child under the age of 16 is capable of forming his or her own views includes a provision for the child to be consulted where practicable. Our view is this provision should be deleted; the child should always be consulted.

Further attention needs to be given to this as well as to another provision under the guiding principles in regard to giving due weigh to the views of the child and that how they interact with the views that are given by the parents or by the guardian. I hope that makes sense.