Wanting the age for being an adult to be lowered from age 18 in all countries

I can imagine that if the age of adulthood lowered to be 13 years old, many people would take advantage of that, and likely would try to pressure them into marriage at that young age, and other things that would be deemed quite immoral.

I mean, if humans live on average till they're 70 years old, about 20 years of that is spent as a child and teenager, then you have about 50 years to be an adult, and do whatever you want to do, but in reality it's more like just doing whatever you have to do to survive. 

Sure, you are young and want to make your own decisions, and not treated like a child anymore, so do mature and independent things, get a job, do the chores, cook for yourself, have a good credit score, get your driver's licence, get your own car, and then by the time you're 18 years old, move out and find your own place to live. You don't have to keep demanding that others treat you as an adult, but you know what, you'll be living as an adult for approximately 50 years of the rest of your life, so I'd hate to tell you to enjoy your childhood while it lasts, because that's the last thing you want to hear.

I think that you would like your full freedom to do whatever you want to do, but even as an adult, you're not completely free, and you still need to sacrifice your time to earn a living. You have the choice of earning money or being homeless, so that's not much of a freedom if you were aiming for that.  

Well marriage is a good example. Right now you can get married at 16 but only with parental consent. There is talk of raising this to 18 which would create an odd situation where for 2 years its legal to have sex with someone but legally impossible to marry them.

Now here the concern is parents may be pressuring 16-17 year olds into marriages they don’t want. But what is not as widely considered is there may be 16 year olds who are prevented from marrying because their parents don’t approve of the match. Too poor, the wrong race, maybe the wrong gender.

So instead of getting a parents consent why not switch it so it has to be a magistrate or judges consent. If a 16 year old can stand up in front of a judge and convince them that they genuinely want to get married and they know what that entails and no one is coercing them then why shouldn’t they be allowed to get married?

Remember there are some people with intellectual disabilities who want to get married but can’t because they are considered too vulnerable and the courts have taken their legal autonomy to make a choice to marry away. Ultimately that’s not fair. There needs to be a system that allows vulnerable people to do things that might normally make them vulnerable to exploitation in a safe way.

We don’t have that system and we NEED it. I don’t see why the same principle couldn’t be applied to teenagers.

If people have the mental capacity to get married, intellectual disability or otherwise, then they are able to. Courts don't just prevent people from doing things for the fun of it. 

It's unfortunate that right now I don't have access to the university library. I recall reading an excellent book where a social researcher had gone through and interviewed numerous people with learning / intellectual disabilities about their sex lives / relationships or as it turned out the lack of. It would be instructive to quote that book.

As I seem to recall for those living in care facilities the vast majority found their carers were largely unwilling to consider that they should have any kind of sex life or serious romantic relationship. Those lifting independently but with assistance in their own homes did engage in sexual / romantic relationships but often found them to be exploitative.

Offering assistance to make the decision is largely a one off event. To marry or not to marry in general not with respect to a particular person.

M said:

I've never been the social worker in that scenario but not being able to read shouldn't prevent someone from getting married

I'm assuming they can read to a basic level but don't understand what the words on the form mean in context.

...

I've read the code of practice. Even it doesn't say the IMCA has to be called. I quote

An IMCA must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff), whenever:

• an NHS body is proposing to provide serious medical treatment, or
• an NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home, and
  • the person will stay in hospital longer than 28 days, or
  • they will stay in the care home for more than eight weeks.

An IMCA may be instructed to support someone who lacks capacity to make decisions concerning:

• care reviews, where no-one else is available to be consulted
• adult protection cases, whether or not family, friends or others are involved

The kind of situation I outline will fall under the later 2 if it falls within this definition at all. So the IMCA MAY be instructed but there is no requirment to do so.

A referral to social services would be made and they would refer for an imca for each of them if they were needed. Then they'd have formal capacity assessments to see what they understand of what they are asking for, in this case to get married. 

I've never been the social worker in that scenario but not being able to read shouldn't prevent someone from getting married so I'd have thought they would be able to with support to understand the paperwork. Part of the MCA states that to determine someone lacks capacity you need to take practicable steps to help them to understand the decision so you couldn't just ignore them at the point your situation ends at... 

Ok we'll lets take a hypothetical scenario then. 2 intellectually disabled adults at a care home are able to leave without supervision (and so not deprived of their liberty). One day they go, with out the knowledge of staff, to the registry office and ask for a marriage licence. They are unable to fill out the paperwork without help so staff doubt they have mental capacity. They determine that the couple are from the care home and contact the care home which confirms that, in the care homes opinion, they lack the capacity to marry. The families of both individuals are contacted by the care home and registry office who confirm that in their opinion they lack the capacity to marry. The couple are adamant they still wish to marry. At that stage will IMCA be called?

I very much doubt it.

Even if a subject cannot say "I don't agree", if there are signs that the person doesn't agree with whatever the decision is then the case should be referred to the court of protection. I've had this happen in a case of my own where the client couldn't directly say they wanted their case to go to court and their sole family member couldn't act on their behalf due to their own health reasons, so various safeguards then come into play, namely referring for an IMCA and getting the second opinion of a DoLS assessor, AND seeking the services of a solicitor. Even where there is a power of attorney making decisions it can still be challenged in the same way. The only person who can have the final say is a judge in the court of protection but even that involves consulting with each interested party.

If there is any doubt that an informal advocate I.e. family or friend taking on the role would NOT support the person to challenge a decision then they have a right to an IMCA to advocate for them. There are so many different professionals involved in such scenarios, it would be highly unlikely (not impossible) that not a single person would take such action to ensure people have independent advocacy and access to legal challenge.

I'd be amazed to hear of an example where someone didn't have any disagreement amongst professionals at all. It would be like finding a unicorn. There may be consensus about someone lacking capacity - sometimes this is straightforward to determine, but usually complex - but agreeing the decision in someone's best interests is rarely clear cut and there are usually lengthy conversations about the pros and cons of benefits and consequences of decisions. 

I'm a big fan of this area of law and feel it works well. It isn't perfect, people are complex and so are their lives. The real problem is funding the services to be able to be responsive to challenges, but it is something most LAs take seriously because of the legal implications of not following the law promptly.

M said:

No, they cannot block an IMCA. If there is an obvious conflict of interest - in the case you mentioned the potential abuse of an arranged marriage becoming more like a forced marriage - would mean it is a priority to arrange for an IMCA.

Respectfully that's not the kind of scenario I'm saying needs addressing. You are ignoring my earlier hypothetical. What if there is a non obvious conflict of interests. what if the family and local authorities are in agreement that the subject lacks capacity but the subject protests that they think they do have capacity. Will the IMCA be called in automatically when the only person who is dissatisfied is the subject? Yes or no?

I don't know what the social services / care home code of practice says about when IMCA should be called but I very much doubt that's legally binding what ever it says. The law says the only situation in which IMCA must be called in, regardless of what the advocate thinks, is involuntary detention. I don't believe thats enough protection.

Also what if the IMCA gets it wrong and also, wrongly, asses that it's not in a subjects best interest to take the matter to the court?

M said:

I'd be happy to be assessed under this piece of legislation providing the person doing the assessment understood it properly.

That is a truly massive if. There is no indication that the doctor in KMs case acted maliciously or negligently. She just got it wrong. She didn't understand. And she was an educated psychiatrist who regularly deals with such things. I feel very strongly if there is any question at all over a case, even if the subject of the capacity decision is the only one who thinks they do have capacity, even if it's 'obvious' to everyone involved but the subject that they don't have capacity, it should still go to the court of protection by default.

If a subject of a capacity decision is capable of saying "I don't agree" that it self should be enough to send it to court.

No, they cannot block an IMCA. If there is an obvious conflict of interest - in the case you mentioned the potential abuse of an arranged marriage becoming more like a forced marriage - would mean it is a priority to arrange for an IMCA. The presence of family doesn't immediately negate the need for an IMCA as there are many reasons why family may not be appropriate or able to be an advocate, even if they volunteer to be. 

If a client of mine wanted to challenge a decision or I thought they would object to the decision if they are able to, then I would have a duty to refer for an IMCA and initiate court proceedings. Failing to follow the law and promote my clients' rights to this could see me lose my registration to practice. It would be a breach of a person's human rights to ignore it and I take that very seriously. 

As it happens though, social care is a pretty defective system and as I mentioned, I recently left to work in a different role because I felt there were seriously shortfalls in practice. The law is pretty good though around mental capacity in my opinion. I'd be happy to be assessed under this piece of legislation providing the person doing the assessment understood it properly. It is designed to support people to make their own decisions, not to impose "professional" decisions or opinions on people. 

M said:

When decisions are made on behalf of people there are safeguards in place to ensure people do have the opportunity to challenge them in the form of independent mental capacity advocates, otherwise known as IMCAs, if there isn't an advocate already available to the client. 

Except as I previously mentioned and you seem to have confirmed there is no requirement to call in the IMCA if there is a friend or family member willing to speak for the intellectually disabled person. As far as I am aware there is no law that forces a family member acting as an advocate to act in accordance with the intellectually disabled persons wishes or argue they have capacity if that is what they wish. My understanding is if the family and health / care providers agree they can in practice block the IMCA from being called in and prevent the case going to the court of protection.

I believe there should be a legal requirement to refer cases to the court of protection when a person subject to a mental capacity decision requests it, even if they are not competent to act as a litigant.

Nobody should be deemed to lack capacity "by default". The Mental Capacity Act states that capacity is determined based on each individual decision. When decisions are made on behalf of people there are safeguards in place to ensure people do have the opportunity to challenge them in the form of independent mental capacity advocates, otherwise known as IMCAs, if there isn't an advocate already available to the client. 

The fact that this case went to court demonstrates that there are ways for decisions to be challenged. 

Of course I'm biased as I have a law degree and was a social worker in adult social care up until recently, but I know how much work goes into this type of assessment. The fact that a GP did a poor assessment isn't surprising, they often don't understand capacity assessments about matters such as relationships. They will barely see clients outside the GP surgery. 

The state doesn't intervene with marriages for no good reason. It intervenes when they are potentially exploitative/abusive. The decision this court made would potentially mean this man could marry by choice in a circumstance that suits him, not forced by his family for their gain. The thing with mental capacity assessment is that someone could be deemed to lack capacity to enter into a marriage on one occasion but later be supported to make a decision to marry. As a social worker, I have had to support people with capacity to remain in abusive relationships too. We do support people to make "unwise decisions", also outlined in the Mental Capacity Act. 

I've left social work recently to work in a different role, but it matters to me that people do not wrongly see us as dictators of social behaviour. I've always supported people to live their lives however they wish given that they appreciate they could come to whatever harm in whatever the situation is, just like you and I. I know there will always be social workers who are less comfortable with that but it takes a confident person to step back and let someone live a life that might potentially see them die in a high risk situation because they understand that risk. It is easy to say you would do that until that responsibility is on your shoulders. 

Well in theory maybe it works that way but not in practice. Let’s take this case ( https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCOP/2016/20.html&query=%22Mental+capacity+act%22+marry ) for example.

This young man, KM, was intellectually disabled, and the local authority was concerned that his family might be planing to marry him off in an arranged marriage.

As it turns out the young man himself was quite keen to get married someday. The local authority arranged to have a psychologist look at him who determined he lacked mental capacity. The family disagreed and it went to court.

In the courts view the doctor applied too strict a test and expected too much understanding of the implications of things like pregnancy, STD and immigration law (for spouses). Basic understanding was more or less sufficient.

The judge ruled KM did have the mental capacity to marry. And made it clear he was in the position of making a binary choice and that there were downsides to declaring that KM did have capacity.

The judge makes it clear there is a very real risk KM may end up in an unhappy marriage particularly if his family arrange one with out telling the bride about his intellectual disability.

Now suppose this situation had been different. Supose KM wanted to marry another person with an intellectual disability and both his family and the local authority were in agreement that he lacked capacity. Well he simply wouldn’t be allowed to marry.

There is an independent organisation that acts as an advocate for someone wishing to challenge their lack of capacity but they only automatically get called in when there is no friend or family member to speak for their best interest.

So in this hypothetical scenario KM would have to do all the paperwork to bring the case to court him self, that’s assuming it’s even properly explained to him he has that right. It was held by the court in KMs that he wasn’t competent to run his own case even with a lawyers help. So a lawyer was appointed to act on his behalf.

If his family and the local authority had been in agreement that he shouldn’t marry it seems unlikely to me he ever would have got to court to win his right to marry.

All too often health and care professionals stack the mental capacity test so that instead of asking ‘does this person have a basic level of understanding’ they ask ‘does this patient have enough understanding to make the decision that I think is obviously the right one.’

Now I freely admit KMs position is not ideal. Having said he has capacity to get married the court has basically no control over what happens next. The court can’t make sure KMs family aren’t lying to him about his prospective wife or that they aren’t lying to the bride about KM. wouldn’t it be better to have a situation where the court confirms KM has the final say on his marriage but that he has to exercise that right with the courts oversight and advice?

Right now there is no law for that. Not for marriage or anything else that one generally needs to be an adult to do, like agreeing employment or a debt etc.

If there was a provision in law to say that some people have capacity but that it has to be exercised under the supervision of some sort of court appointed advisor would it not be more appropriate for most teenagers to fall into that category instead of them not having capacity ‘by default’ as it were?

Well in theory maybe it works that way but not in practice. Let’s take this case ( https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCOP/2016/20.html&query=%22Mental+capacity+act%22+marry ) for example.

This young man, KM, was intellectually disabled, and the local authority was concerned that his family might be planing to marry him off in an arranged marriage.

As it turns out the young man himself was quite keen to get married someday. The local authority arranged to have a psychologist look at him who determined he lacked mental capacity. The family disagreed and it went to court.

In the courts view the doctor applied too strict a test and expected too much understanding of the implications of things like pregnancy, STD and immigration law (for spouses). Basic understanding was more or less sufficient.

The judge ruled KM did have the mental capacity to marry. And made it clear he was in the position of making a binary choice and that there were downsides to declaring that KM did have capacity.

The judge makes it clear there is a very real risk KM may end up in an unhappy marriage particularly if his family arrange one with out telling the bride about his intellectual disability.

Now suppose this situation had been different. Supose KM wanted to marry another person with an intellectual disability and both his family and the local authority were in agreement that he lacked capacity. Well he simply wouldn’t be allowed to marry.

There is an independent organisation that acts as an advocate for someone wishing to challenge their lack of capacity but they only automatically get called in when there is no friend or family member to speak for their best interest.

So in this hypothetical scenario KM would have to do all the paperwork to bring the case to court him self, that’s assuming it’s even properly explained to him he has that right. It was held by the court in KMs that he wasn’t competent to run his own case even with a lawyers help. So a lawyer was appointed to act on his behalf.

If his family and the local authority had been in agreement that he shouldn’t marry it seems unlikely to me he ever would have got to court to win his right to marry.

All too often health and care professionals stack the mental capacity test so that instead of asking ‘does this person have a basic level of understanding’ they ask ‘does this patient have enough understanding to make the decision that I think is obviously the right one.’

Now I freely admit KMs position is not ideal. Having said he has capacity to get married the court has basically no control over what happens next. The court can’t make sure KMs family aren’t lying to him about his prospective wife or that they aren’t lying to the bride about KM. wouldn’t it be better to have a situation where the court confirms KM has the final say on his marriage but that he has to exercise that right with the courts oversight and advice?

Right now there is no law for that. Not for marriage or anything else that one generally needs to be an adult to do, like agreeing employment or a debt etc.

If there was a provision in law to say that some people have capacity but that it has to be exercised under the supervision of some sort of court appointed advisor would it not be more appropriate for most teenagers to fall into that category instead of them not having capacity ‘by default’ as it were?

It's unfortunate that right now I don't have access to the university library. I recall reading an excellent book where a social researcher had gone through and interviewed numerous people with learning / intellectual disabilities about their sex lives / relationships or as it turned out the lack of. It would be instructive to quote that book.

As I seem to recall for those living in care facilities the vast majority found their carers were largely unwilling to consider that they should have any kind of sex life or serious romantic relationship. Those lifting independently but with assistance in their own homes did engage in sexual / romantic relationships but often found them to be exploitative.

Offering assistance to make the decision is largely a one off event. To marry or not to marry in general not with respect to a particular person.

M said:

I've never been the social worker in that scenario but not being able to read shouldn't prevent someone from getting married

I'm assuming they can read to a basic level but don't understand what the words on the form mean in context.

...

I've read the code of practice. Even it doesn't say the IMCA has to be called. I quote

An IMCA must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff), whenever:

• an NHS body is proposing to provide serious medical treatment, or
• an NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home, and
  • the person will stay in hospital longer than 28 days, or
  • they will stay in the care home for more than eight weeks.

An IMCA may be instructed to support someone who lacks capacity to make decisions concerning:

• care reviews, where no-one else is available to be consulted
• adult protection cases, whether or not family, friends or others are involved

The kind of situation I outline will fall under the later 2 if it falls within this definition at all. So the IMCA MAY be instructed but there is no requirment to do so.

A referral to social services would be made and they would refer for an imca for each of them if they were needed. Then they'd have formal capacity assessments to see what they understand of what they are asking for, in this case to get married. 

I've never been the social worker in that scenario but not being able to read shouldn't prevent someone from getting married so I'd have thought they would be able to with support to understand the paperwork. Part of the MCA states that to determine someone lacks capacity you need to take practicable steps to help them to understand the decision so you couldn't just ignore them at the point your situation ends at... 

Ok we'll lets take a hypothetical scenario then. 2 intellectually disabled adults at a care home are able to leave without supervision (and so not deprived of their liberty). One day they go, with out the knowledge of staff, to the registry office and ask for a marriage licence. They are unable to fill out the paperwork without help so staff doubt they have mental capacity. They determine that the couple are from the care home and contact the care home which confirms that, in the care homes opinion, they lack the capacity to marry. The families of both individuals are contacted by the care home and registry office who confirm that in their opinion they lack the capacity to marry. The couple are adamant they still wish to marry. At that stage will IMCA be called?

I very much doubt it.

Even if a subject cannot say "I don't agree", if there are signs that the person doesn't agree with whatever the decision is then the case should be referred to the court of protection. I've had this happen in a case of my own where the client couldn't directly say they wanted their case to go to court and their sole family member couldn't act on their behalf due to their own health reasons, so various safeguards then come into play, namely referring for an IMCA and getting the second opinion of a DoLS assessor, AND seeking the services of a solicitor. Even where there is a power of attorney making decisions it can still be challenged in the same way. The only person who can have the final say is a judge in the court of protection but even that involves consulting with each interested party.

If there is any doubt that an informal advocate I.e. family or friend taking on the role would NOT support the person to challenge a decision then they have a right to an IMCA to advocate for them. There are so many different professionals involved in such scenarios, it would be highly unlikely (not impossible) that not a single person would take such action to ensure people have independent advocacy and access to legal challenge.

I'd be amazed to hear of an example where someone didn't have any disagreement amongst professionals at all. It would be like finding a unicorn. There may be consensus about someone lacking capacity - sometimes this is straightforward to determine, but usually complex - but agreeing the decision in someone's best interests is rarely clear cut and there are usually lengthy conversations about the pros and cons of benefits and consequences of decisions. 

I'm a big fan of this area of law and feel it works well. It isn't perfect, people are complex and so are their lives. The real problem is funding the services to be able to be responsive to challenges, but it is something most LAs take seriously because of the legal implications of not following the law promptly.

M said:

No, they cannot block an IMCA. If there is an obvious conflict of interest - in the case you mentioned the potential abuse of an arranged marriage becoming more like a forced marriage - would mean it is a priority to arrange for an IMCA.

Respectfully that's not the kind of scenario I'm saying needs addressing. You are ignoring my earlier hypothetical. What if there is a non obvious conflict of interests. what if the family and local authorities are in agreement that the subject lacks capacity but the subject protests that they think they do have capacity. Will the IMCA be called in automatically when the only person who is dissatisfied is the subject? Yes or no?

I don't know what the social services / care home code of practice says about when IMCA should be called but I very much doubt that's legally binding what ever it says. The law says the only situation in which IMCA must be called in, regardless of what the advocate thinks, is involuntary detention. I don't believe thats enough protection.

Also what if the IMCA gets it wrong and also, wrongly, asses that it's not in a subjects best interest to take the matter to the court?

M said:

I'd be happy to be assessed under this piece of legislation providing the person doing the assessment understood it properly.

That is a truly massive if. There is no indication that the doctor in KMs case acted maliciously or negligently. She just got it wrong. She didn't understand. And she was an educated psychiatrist who regularly deals with such things. I feel very strongly if there is any question at all over a case, even if the subject of the capacity decision is the only one who thinks they do have capacity, even if it's 'obvious' to everyone involved but the subject that they don't have capacity, it should still go to the court of protection by default.

If a subject of a capacity decision is capable of saying "I don't agree" that it self should be enough to send it to court.

No, they cannot block an IMCA. If there is an obvious conflict of interest - in the case you mentioned the potential abuse of an arranged marriage becoming more like a forced marriage - would mean it is a priority to arrange for an IMCA. The presence of family doesn't immediately negate the need for an IMCA as there are many reasons why family may not be appropriate or able to be an advocate, even if they volunteer to be. 

If a client of mine wanted to challenge a decision or I thought they would object to the decision if they are able to, then I would have a duty to refer for an IMCA and initiate court proceedings. Failing to follow the law and promote my clients' rights to this could see me lose my registration to practice. It would be a breach of a person's human rights to ignore it and I take that very seriously. 

As it happens though, social care is a pretty defective system and as I mentioned, I recently left to work in a different role because I felt there were seriously shortfalls in practice. The law is pretty good though around mental capacity in my opinion. I'd be happy to be assessed under this piece of legislation providing the person doing the assessment understood it properly. It is designed to support people to make their own decisions, not to impose "professional" decisions or opinions on people. 

M said:

When decisions are made on behalf of people there are safeguards in place to ensure people do have the opportunity to challenge them in the form of independent mental capacity advocates, otherwise known as IMCAs, if there isn't an advocate already available to the client. 

Except as I previously mentioned and you seem to have confirmed there is no requirement to call in the IMCA if there is a friend or family member willing to speak for the intellectually disabled person. As far as I am aware there is no law that forces a family member acting as an advocate to act in accordance with the intellectually disabled persons wishes or argue they have capacity if that is what they wish. My understanding is if the family and health / care providers agree they can in practice block the IMCA from being called in and prevent the case going to the court of protection.

I believe there should be a legal requirement to refer cases to the court of protection when a person subject to a mental capacity decision requests it, even if they are not competent to act as a litigant.

Nobody should be deemed to lack capacity "by default". The Mental Capacity Act states that capacity is determined based on each individual decision. When decisions are made on behalf of people there are safeguards in place to ensure people do have the opportunity to challenge them in the form of independent mental capacity advocates, otherwise known as IMCAs, if there isn't an advocate already available to the client. 

The fact that this case went to court demonstrates that there are ways for decisions to be challenged. 

Of course I'm biased as I have a law degree and was a social worker in adult social care up until recently, but I know how much work goes into this type of assessment. The fact that a GP did a poor assessment isn't surprising, they often don't understand capacity assessments about matters such as relationships. They will barely see clients outside the GP surgery. 

The state doesn't intervene with marriages for no good reason. It intervenes when they are potentially exploitative/abusive. The decision this court made would potentially mean this man could marry by choice in a circumstance that suits him, not forced by his family for their gain. The thing with mental capacity assessment is that someone could be deemed to lack capacity to enter into a marriage on one occasion but later be supported to make a decision to marry. As a social worker, I have had to support people with capacity to remain in abusive relationships too. We do support people to make "unwise decisions", also outlined in the Mental Capacity Act. 

I've left social work recently to work in a different role, but it matters to me that people do not wrongly see us as dictators of social behaviour. I've always supported people to live their lives however they wish given that they appreciate they could come to whatever harm in whatever the situation is, just like you and I. I know there will always be social workers who are less comfortable with that but it takes a confident person to step back and let someone live a life that might potentially see them die in a high risk situation because they understand that risk. It is easy to say you would do that until that responsibility is on your shoulders.