Understanding mental capacity
Understanding mental capacity

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2.3 Decisions in the Family Court and the Court of Protection

For decisions that children and young people may be able to make – depending on their age and the type of decision – their mental capacity may be in doubt or there may be conflict between them and their parents or carers. In such cases, decisions about their best interests are addressed in the courts. 

Decisions in these cases are usually made through the Family Court in England and Wales or through a Children's Hearing in Scotland. There is no simple equivalence between legal systems here In circumstances where children and young people have substantial and enduring lack of capacity, decision making can also be referred to the Court of Protection. This is an English court where decisions about financial matters are made for people who, because they lack capacity, cannot make them at the time they need to be made.

In Scotland, the Sheriff may make a Guardianship Order, appointing an individual to act for a person with incapacity on an ongoing basis. This is usually for three years or more and in principle can allow for wide-ranging powers over a person’s affairs. The Office of the Public Guardian (Scotland) (2017) provide the example given in Box 1.

Box 1 Monika’s story

Monika is 16 years of age and needs someone to help make decisions about her finances and healthcare. Monika has been awarded a large compensation payment because of an injury sustained at birth. The award will be used to pay for her on-going specialised care costs and for adapting the family home to allow Monika to continue to live there. Monika’s parents have applied to the sheriff court for authority to make decisions over the next three years, about accessing and investing her finances and making healthcare and welfare decisions.

Source: Office of the Public Guardian (Scotland) (2017)

You now consider decision making and mental capacity in two particularly difficult areas: child sexual exploitation and mental health.

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