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. (Age of Legal Capacity (Scotland) Act 1981)
However, that medical practitioner has just received clear guidance that the court of protection do not consider children 13 and under capable of making this decision, and that 14/15 year olds are unlikely to. It has also been laid out what conditions need to be met in order for then to be considered capable to do so. It would be fool hardy of any doctor (a psychologist doesn’t count) to ignore this.
Over 16 they may have capacity but they still need to give informed consent. The court ruled that 16/17 may not be able to consent. There are other groups of 16 and overs who may also not be able to consent; those with learning disabilities, those with brain injuries, or those with mental illness, I would hope in all these cases where there is doubt about ability to give informed consent that the courts would be consulted.
These cases may not apply directly but they give such a strong indication of what a Scottish court Is likely to decide that I would have thought medical indemnity insurers would insist these decision is followed.