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Understanding mental capacity
Understanding mental capacity

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3 How does time affect mental capacity?

Mental capacity is not static. People’s ability to make decisions can fluctuate and is also affected by social constructions especially those relating to age.

A picture of a traditional, wind-up, mechanical clock on a table
Figure 3 Time, and more specifically age, is a consideration when analysing mental capacity

Activity 6 The impact of time

Timing: Allow about 10 minutes

Think about these questions and make notes in the boxes provided.

1. Think back to when you were a child. At what age were you considered old enough to make decisions for yourself? Did this age differ depending on the decision being made? Who helped you make decisions and why?

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2. Think of families you know with children, either from when you were a child or that you have come to know as an adult. In what circumstances was the decision making different and why? Think about things like choice of food, religious observance, relationships and education.

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Mental capacity is the ability to make one’s own decisions. The extent to which children are allowed to make decisions for themselves is determined partly by their age and partly by their cultural and social environment. For instance, a parent may wish their child to follow a certain religion and bring them up to follow certain beliefs and practices relating to, for example, food, clothes and relationships. Other decisions may be driven by parental preferences; a parent who is vegetarian may also wish that their child does not eat meat. Parents may also decide which school their child goes to and which friends their child associates with.

You will explore the assessment of mental capacity in children in Week 5, but thinking about parental decision making is helpful in setting mental capacity in context more generally. What is it that prompts a parent to make a decision on behalf of their child? Is it the age of the child and the type of decision? For example, if a parent does not want their child to access social media online, they may decide not to purchase a device for their child until they reach a certain age. When and why does it stop being a parental decision only?

These are questions that do not always have set guidance and differ according to individual circumstances.

Please note the Age of Legal Capacity (Scotland) Act 1991 states:

The general ceiling for legal capacity at 16 years in s.1 of the Age of Legal Capacity (Scotland) Act 1991 has exceptions in s.2 e.g. allowing transactions 'commonly entered into' such as purchase of a bus ticket on “'terms which are not unreasonable' and more specific instances such as a child over 12 years being afforded testamentary capacity. Capacity increases with a child’s age (along with a corresponding reduction in parental rights and responsibilities). Under s.3 of the 1991 Act young people up to the age of 21 can have any prejudicial transaction entered into between 16 and 18 years of age set aside (in recognition of their contractual inexperience and possible vulnerability).