COMMONS AMENDMENTS (Hansard, 8 November 1989)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 121 to 126. I shall speak at the same time to Amendments Nos. 142 to 145.
This group of amendments deals with the important question of medical and psychiatric examination and assessment of a child who is the subject of an interim care order, interim supervision order or an emergency protection order. There are similar provisions in the new clause, Amendment No. 139 establishing a child assessment order.
Amendments Nos. 121,123,124, 142, 144 and 145 extend the direction-making power of the court in a modest but potentially useful way. The Bill provides at Clauses 33(6) and 36(4) that a court when making an interim care or supervision order or an emergency protection order may given directions as to the medical or psychiatric examination of the child. Addition of the words "or other assessment" provide that the court's direction powers are not limited to medical or psychiatric examinations. It is easy to see that other types assessment might be helpful to the court.
Amendments Nos. 122 and 143 are in response to a long-running debate started in this House by the noble Baroness, Lady David, and continued in the other place about whether the Bill should contain an explicit statement about the child's right to refuse consent to an examination or assessment if he is of 767 sufficient understanding to do so. There can be no doubt about the position in the general law, which is that children over 16 are to be presumed to be competent to give or refuse consent, and that the Family Law Reform Act 1969 must also be regarded as not excluding the possibility that a child under the age of 16 may be competent to give or withhold consent. The Gillick judgment confirmed that children under 16 have a legal capacity to consent to examination and treatment if they are of sufficient understanding to make an informed decision.
It was argued that giving the courts a power to give directions in relation to medical and psychiatric examinations would make the general law uncertain on the question of consent. We thought it unlikely that a court would give such directions, or a doctor act on them, in the face of refusal of consent by the mature child, though not all were reassured by this opinion.
The last thing the Government want is uncertainty about the position where a child of sufficient understanding refuses consent, including about what the doctor should do. Our main concern was that we should not provide openings for the suspected abuser to bring pressure on the child to withold consent. A child capable of making an informed decision could still feel intimidated and allow his views to be subverted. We accept, however, that this is a problem to address in guidance.
We shall encourage local authorities and doctors in guidance to explore where possible the child's reason for withholding consent. Those concerned would be able to try to persuade the child to see the advantages of allowing the examination to go ahead but would not be able to overrule the child if the court accepted that he was of sufficient understanding to make an informed decision. We accept that the rights of the child of sufficient understanding to give or withhold consent should be put beyond doubt. Amendments Nos. 122 and 143 write this point specifically into the provisions on interim care and supervision orders and emergency protection orders, and there is a similar provision in the new clause on child assessment orders —Amendment No. 139.
The purpose of Amendment No. 125 is, first, to make clear that the court may exercise its power under subsection (6) to give directions about medical or psychiatric examinations and other assessments when it makes an interim care order or interim supervision order or at any time while the interim order is in force; and, secondly, to provide that such a direction may be varied at any time on the application of any person who is recognised in the rules of court. There are identical provisions in Clause 36(6) in relation to directions given in support of emergency protection orders.

§ Baroness David
My Lords, I am pleased to see these amendments. As the noble and learned Lord said, we had considerable discussions. He was good 768 enough to say that he saw that there was a point and that he would consider it. I am pleased that he has decided to put this provision into the Bill.

§ The Lord Chancellor
My Lords, I am grateful to the noble Baroness.