Mental Capacity

Legal Rights

Under the Children and Families Act 2014, a child will become a young person once they reach the end of compulsory school age (ie the last Friday of June in the year the child turns 16). At that point parental rights under the law in relation to the young person's education will automatically pass to the young person themselves.

Involvement of Parents

The SEND Code of practice makes it clear that once a child becomes a young person at the age of 16, Local Authorities and others should normally engage directly with the young person rather than their parents. However, the Code also makes it clear that the young person's family and parents should continue to be involved in discussions about the young person's future. The young person may also ask them to help in other ways such as attending meetings, filling in forms or receiving correspondence on their behalf. This is particularly important for 16 and 17 year olds, for whom parents will retain parental responsibility until they reach the age of 18.

Legal Concept of Mental Capacity

The legal concept of mental capacity is contained in the Mental Capcity Act 2005 and the Mental Capacity Act Code of Practice, which is statutory guidance. It is not a static concept. Whether a young person has mental capacity to make a particular decision or not, has to be considered on an individual basis in the light of the circumstances at the time. It is not something to consider once which then applies across all decision making. Whilst it may be appropriate for a young person to make daily decisions, such as what choice of dinner they want or things they would like to learn about, it may not be appropriate for them to decide what school or college they want to attend. If a young person lacks capacity to make a particular decision, then someone else (generally their parent) will be able to make that decision for them.

No young person can be protected by the Mental Capacity Act from making a bad decision.

The question is whether or not they have the capacity to make that decision at all.

Agreement

When it is agreed that a young person does not have capacity to make a decision about appropriate education needs, then parents will automatically make that decision for them unless the Court of Protection has appointed a different person to be their Deputy. They would have to make the decision which was in the best interests of the young person concerned. The Local Authority would also still have to seek the young person's views as part of any decision-making process.

Disagreement

There may be disagreement between the parents, the young person, the school/college being attended and/or the Local Authority, regarding a young person's mental capacity to make a decision. It may then be necessary to seek an assessment to provide a professional opinion of the young person's capacity to make the decision.

Mental Capacity Assessment

The Mental Capacity Code of Practice confirms that this opinion could come from a psychiatrist, psychologist, speech and language therapist, occupational therapist or social worker. It might also come from someone like a GP or other medical professional who is involved with the young person. It is very important that such assessments are done by professionals who have acquired the necessary skills. The final decision about a person's capacity must be made by the person intending to make the decision or carry out the action on behalf of the person who lacks capacity. A decision on a young person's mental capacity should not be made by a school/college or Local Authority.

Local Authority Challenge

A mental capacity assessment might also be helpful to support a parent who wished to take a decision on behalf of a young person and was being challenged by a Local Authority about their right to do so. A parent would be expected to explain the basis of their belief that the young person lacked capacity and an assessment might help them to do so. Such an assesssment may not be necessary in all cases however, depending on the other evidence available to support the parent's belief.

Go to the top of the page and click the RESOURCES tab for links to the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice. You can also click here to read our FAQs on mental capacity.  

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