“Subject to subsection (2) below, it shall be the responsibility of a person who has attained the age of 16 years and who has care or control of the child under that age, but in relation to him either has no parental responsibilities or rights or does not have the parental responsibility mentioned in section 1(1)(a) of this Act, 534 to do what is reasonable in all the circumstances to safeguard the child’s health, development or welfare; and in fulfilling his responsibility under this section the person may in particular even though he does not have the parental right mentioned in section 2(1)(d) of this Act, give consent to any surgical, medical or dental treatment or procedure where:
(a) the child is not able to give such consent on his own behalf and
(b)it is not within the knowledge of the person that a parent of the child would refuse to give the consent in question.”
4.31Subsection (2) indicates that the section does not apply to a teacher in a school. Since 1991 children over the age of 16 years in Scotland have effectively had full legal capacity to consent to medical treatment or medical procedures535 or otherwise. This differs from the narrower approach adopted in England. It should be noted that section 2(4) of the Age of Legal Capacity Act 1991 already provides:
“A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment”.
Views of the child
4.32The Commission considered whether a parent or other person exercising parental rights should be under an obligation (similar to a local authority who has a child in its care) to ascertain and have regard to the child’s wishes and feelings.536
4.33Article 12(1) of the United Nations Convention on the Rights of the Child provides that:
“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
534This would cover people such as baby-sitters or child-minders.
535 Medical procedures would include a blood donation.
536 Supra at paragraph 2.61.