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Education (Scotland) Act 2016

New section 3: Children and young persons: capacity

65.Paragraph 2 of the schedule substitutes a new section 3 into the 2004 Act. This new section defines what is meant by a child “having capacity” and a young person “lacking capacity” for the purposes of the 2004 Act, and expands on the definition of capacity included in the original section 3, by specifying what “capacity” means with reference to the particular action being carried out by the child or by the education authority. Section 3(1) provides that a child has capacity:

a.

in relation to an act that may be carried out by them under the 2004 Act, if they have sufficient maturity and understanding to carry out the act;

b.

in relation to a decision they may make under the 2004 Act, if they have sufficient maturity and understanding to make, communicate, understand and retain memory of that decision (including understanding the implications of the decision);

c.

in relation to the provision of any information or advice, or of a co-ordinated support plan, by the education authority under the 2004 Act, if they have sufficient maturity and understanding to understand the advice, information or plan; and

d.

in relation to any view they might express as mentioned in the 2004 Act, if they have sufficient maturity and understanding to express the view.

66.New section 3(2) of the 2004 Act provides that, for the purposes of the Act, a young person lacks capacity to do something if they do not have sufficient understanding to do it.

67.New section 3(3) provides that a child or young person is not to be treated as lacking capacity due to a communication difficulty if the child or young person can communicate through human, electronic or mechanical aid.

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