A young person is defined as someone over compulsory school age but under 25.

Compulsory school age ends the last Friday in June in the year they turn 16.

Mental capacity does not usually apply to individuals under 16, as a matter of law those under 16 do not have capacity.

In the Children and Families Act 2014 young people over the age of 16 are classed as having the right to make decisions related to their education.

The Mental Capacity Act defines mental capacity as the ability to make a decision – a specific decision at a specific point in time; it is not about decision making powers generally.

For example, whilst a young person may be able to make daily decisions, such as what choice of dinner they want but they may not be capable of deciding what school or college they want to attend.

You cannot decide a person lacks mental capacity because you think they’ve made a bad or unwise decision.

Someone is treated as being unable to make a decision if they are not able:

  • to understand the information relevant to the decision,
  • to retain (keep in mind) that information,
  • to use or weigh that information as part of the process of making the decision, or
  • to communicate their decision (whether by talking, using sign language or any other means).

There may be disagreement between parents, the young person, the school or 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.

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.

Before concluding that a young person is unable to make a decision, all practicable steps should be taken to help them make the decision without success.

If a young person lacks capacity to make a particular decision, the person making the decision on their behalf must act in the young person’s best interests.

When it is agreed that a young person does not have capacity to make a decision they would otherwise be entitled to make under the Children and Families Act 2014 , then the parents will automatically make that decision.

If it is agreed that the Young Person does have capacity, the Code of Practice makes it clear that the Young Person's family and parents should continue to be involved in discussions about the young person's future.