Education (Scotland) Act 2016

2 For section 3 (children and young persons who lack capacity) substitute—

“3 Children and young persons: capacity

(1) For the purposes of this Act, a child has capacity—

(a) in relation to an act that may be carried out by the child under a provision of this Act, if the child has sufficient maturity and understanding to carry out the act,

(b) in relation to a decision of the child mentioned in a provision of this Act, if the child has sufficient maturity and understanding—

(i) to make the decision,

(ii) to communicate the decision,

(iii) to understand the decision and its implications for the child, and

(iv) to retain the memory of the decision,

(c) in relation to the provision, under a provision of this Act, of any information, advice or co-ordinated support plan by an education authority to the child, if the child has sufficient maturity and understanding to understand the information, advice or (as the case may be) plan,

(d) in relation to any view of the child mentioned in this Act, if the child has sufficient maturity and understanding to express the view;

and any references in this Act to a child who lacks capacity are to be read accordingly.

(2) For the purposes of this Act, a young person lacks capacity to do something if the young person does not have sufficient understanding to do it.

(3) But a child or young person is not to be treated as lacking capacity by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human, electronic or mechanical aid (whether of an interpretive nature or otherwise).”.