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Education, Healthcare Plans (EHCP)

6. Mental health capacity – over 16

Young people are legally defined in this legislation (but not in social care law) as those who are over compulsory school age – i.e. those who have finished the school year in which they turn 16 years old.

At that point it will be assumed they have mental capacity to make decisions about their education and must be included in all decisions and correspondence in their own right.

If a young person does not have the mental capacity to make a decision on their own, then their parents will automatically be assumed to be making the decision on their behalf unless the Court of Protection has appointed a Deputy.

A deputy is usually a young person’s parent.

The decision as to whether a young person has mental capacity to make a particular decision is something that they and their parents should make in the first instance.

It would be very rare for a school or college or Local Authoriy (LA) not to agree with their assessment of the situation. If they do not agree, the young person and their parents need to get advice.

It would be usual in such an event for an independent medical professional to assess mental capacity.

Mental capacity needs to be considered for every decision that a young person needs to make around their education. It is therefore essential that parents are kept fully informed and involved in all decision making at all times.

It can never be assumed by a school or college that a young person has or has not got mental capacity to make a decision.

Please contact us with any queries.