I’m delighted to host this guest post by Paul Skowron. Paul is a PhD researcher at the Centre for Social Ethics and Policy at the University of Manchester. He is researching moral reasoning in the Court of Protection and in decision-making support more generally. His academia.edu page is here: https://manchester.academia.edu/PaulSkowron
I’d like to thank Lucy for asking me to do this guest blog, but I should also start with a disclaimer. I’m not a Scottish lawyer or an expert in Scots law, just an interested outsider. All the same, the capacity provisions in the Education (Scotland) Bill do not seem to have attracted much attention, and I think they are worth looking at. They are worrying and bizarre.
A Bill that tries to ‘promote equity of attainment for disadvantaged children’ (see the explanatory notes) is not something that most people would want to pick a fight with; but, unfortunately, there are serious problems with its capacity provisions. These are all found in its Schedule, which amends The Education (Additional Support for Learning) (Scotland) Act 2004. That Act, amongst other things, allows 16 and 17 year olds with capacity to challenge decisions about their education support. The new Bill aims to extend these rights from 16 and 17 year olds to anyone over 12 with capacity. Again, it’s hard to pick a fight with that, although when there is a capacity test anyway, it is not particularly obvious why the rights should only be extended to children over 12.
The Schedule, though, doesn’t just extend these rights. It also changes the test for capacity; and adds a second stage that might even undermine the existing rights of 16 and 17 year olds. Worse still, it does all this without consultation. Before getting into the details of these problems, however, it is worth looking at the provisions that the Schedule is replacing:
“3. Children and young persons who lack capacity
(1) For the purposes of this Act, a child or young person lacks capacity to do something if the child or young person is incapable of doing it by reason of mental illness, developmental disorder or learning disability or of inability to communicate because of a physical disability.
(2) However, a child or young person is not to be treated as lacking capacity by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise).”
This section has at least one thing going for it. Although it gives at a lot of discretion to whoever is assessing capacity, and almost certainly breaches Articles 7 and 12 of the UN Convention on the Rights of Persons with Disabilities, at least it is admirably to the point. The proposed replacement is not. Here’s an extract (masochists can find the whole thing here):
“3. Children and young persons: capacity
(1) For the purposes of this Act, a child or young person has capacity –
(a) in relation to an act that may be carried out by the child or young person under a provision of this Act, if the child or young person has sufficient maturity and understanding to carry out the act
(b) in relation to a decision of the child or young person mentioned in a provision of this Act, if the child or young person has sufficient maturity and understanding –
(i) to make the decision,
(ii) to communicate the decision,
(iii) to understand the decision and its implications for the child or young person, and
(iv) to retain the memory of the decision,
(c) in relation to the provision, under a provision of this Act, of any information, advice or co-ordinated support plan by an education authority to the child or young person, if the child or young person has sufficient maturity and understanding to understand the information, advice, or (as the case may be) plan,
(d) in relation to any view of the child or young person mentioned in this Act, if the child has sufficient maturity and understanding to express the view; and any references in this Act to a child or young person who lacks capacity are to be read accordingly.”
Got that? First, you have to identify whether the young person is acting, deciding, receiving information, or expressing a view. That is four separate categories for the extremely limited range of actions that someone can make under the original Act. Which way you describe what the person is trying to do is important because that dictates which capacity test you apply. To make a ‘decision’ someone must have ‘sufficient maturity and understanding’ to make, communicate, understand and retain the decision; but for anything else they only need ‘sufficient maturity and understanding’, without the four stage breakdown. Are these two tests the same in practice; and how do you tell is someone is ‘acting’ or ‘deciding’? I honestly don’t know. The Schedule doesn’t tell us. So, for example, if a child over 12 is attempting to refer a decision of the education authority to the Additional Support Needs Tribunal, then is that child ‘acting’ or have they ‘decided’ to make a referral or both? It is impossible to tell. The amended legislation (section 17 of the Schedule) just says to assess their ‘capacity to make the reference’.
Incidentally, the idea of ‘capacity to express a view’ does exist in the original legislation; but new to the Bill is the idea that you can only express a view if you have ‘sufficient maturity and understanding’. This is particularly sinister. It can be argued that if you lack maturity and understanding, then your view should not prevail; but that is not the same as not having a view at all. To pretend otherwise seems like a guarantee that people will be ignored. Unfortunately, this is not the worst that the Schedule contains:
“3A Children and young persons: assessment of capacity, etc.
(1) Subsection (3) applies where, under a provision of this Act –
(a) a child who has attained the age of 12 years may do something only if an education authority is satisfied that the child has capacity in relation to the thing,”
[…there are a number of similar clauses but one will do for our purposes…]
“(2) Before a child or young person does a thing as mentioned in subsection (1)(a) or (c), the child or young person must notify the education authority that he or she proposes to do the thing.
(3) Before the child, young person or (as the case may be) education authority does the thing, the education authority must –
(a) carry out an assessment of the capacity of the child or young person to do the thing, or have the thing done in relation to the child or young person”
Once again, this is spectacularly ugly drafting; the imprecise use of ‘thing’ is particularly unfortunate. There is, however, a deeper problem with these sections. They amount to a reversal of the presumption of capacity. In Scots Law it is usually assumed that someone has capacity, whether they are over 16 or younger; and it is for the authorities to show, if they have doubts, that this assumption is wrong. Instead, these sections contain a presumption of incapacity. The young person must contact the education authority and await a capacity assessment before acting. Worse still, when a young person does something under this Act, it will usually be to challenge a decision of the education authority; but it is the same education authority that will be doing the capacity assessment. As has been observed, this is a failure of natural justice. Even this, though, is not the worst that the Bill contains:
(4) Subsection (5) applies where an education authority, having complied with its duties under subsection (3), is satisfied that –
(a) the child or young person lacks capacity to do the thing or have the thing done in relation to the child or young person, or
(b) it is not in the best interests of the child or young person to do the thing or have the thing done in relation to the child or young person.
(5) The child, young person or (as the case may be) education authority may not do the thing in question.
This is something, so far as I know, entirely unique in capacity law. The last word of section 4(a) is ‘or’. It is not ‘and’. In other words, even if the child or young person is found to have capacity, then they will only be allowed to ‘do the thing’ if the education authority decides that it is in their best interests. The two parts of this story, capacity and best interests, are familiar; but this way of putting them together is, I think, completely new. Usually, for instance in Mental Capacity Act, you only make a best interests decision for someone if they don’t have capacity. After all, the whole point of a capacity assessment is to find out if someone can decide for themselves. If they can, then you let them. Instead, the Bill requires best interests decisions even for people with capacity. That begs the question. If you’re making a best interests decision no matter what you find, then why even bother assessing capacity in the first place? At first, I thought that this ‘or’ was an unfortunate typo, but similar formulations appear in section 17 of the Schedule; so it must be assumed that this is a deliberate choice.
Maybe this choice was made because the Act deals with children, not adults; so it was felt that an additional safeguard was needed. An analogy could perhaps be made with the situation in England and Wales, where a child with capacity can consent to treatment; but if they refuse, then their parents or the court can consent for them instead. This is probably not the case in Scotland anyway; but even if it were, this best interests test goes further. A parent or the court in England and Wales cannot overrule a competent child’s consent to medical treatment, only their refusal. The best interests test is not one-sided like this. It allows the education authority to overrule any relevant decision made by a competent child. That being the case, whether or not they have capacity makes literally no difference.
This change would have consequences. It seems unlikely that education authorities will find that it is in the best interests of children and young people to challenge what the authority thinks is best for them. Beyond that, the Bill is supposed to extend the rights already enjoyed by 16 and 17 year olds to children over 12, but the new best interest test will also apply to 16 and 17 year olds. Instead of extending rights, the Bill could restrict existing ones; and this is not the only way that it might do so. Incapacity in the older legislation had to be caused ‘by reason of mental illness, developmental disorder or learning disability or of inability to communicate because of a physical disability’. The new legislation keeps those categories, but adds a catch all for anything ‘related to having additional support needs’ (the new section 3(2)(e)). In an Act about ‘additional support for learning’ that is probably just a lawyerly way of saying ‘everyone’. Similarly, the best interests test applies to any child or young person attempting to use the Act. This is the worst possible form of equality. Those with disabilities will probably face more capacity assessments; but, regardless of disability and capacity, everyone with additional support needs will find their ability to exercise their rights limited by what the education authority has decided is in their best interests.
It has become common to compare proposed capacity legislation to the requirements of the UN Convention on the Rights of Persons of Disabilities. Regular readers of this blog will know that the committee which oversees the Convention has recently said, in a General Comment, that any system that decides in the best interests of those deemed to lack mental capacity breaches Article 12 of the Convention. The committee didn’t directly comment on systems that assess capacity and then decide in the best interests of everyone, no matter what a capacity assessment finds. Probably, it never occurred to them that anyone would suggest a system like that. All the same, the committee seems opposed to best interests standards in any context; so it seems unlikely that they would endorse this Bill. Not everyone takes as radical a view of the Convention as the committee does; but the defenders of best interests standards usually argue that they are a necessary protection for people who lack decision-making capacity. Given this, they seem as unlikely to defend ‘best interests for everyone’ as the committee is.
It could be argued the Convention doesn’t stop different rules from applying to children and disabled adults. Articles 7 and 23 of the Convention do endorse acting in the best interests of children (thanks Lucy for reminding me of this!). These provisions, however, don’t provide much ground for saying that this Bill is Convention compliant. First, it affects 16 and 17 year olds, but they have reached the age of legal capacity; so it’s hard to see how Scotland could use Convention articles concerning ‘children’ to justify any restriction on their rights. Second, references in the Convention to ‘best interests’ must be read in the context of the entire document. Section 7(3) says ‘States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children…’. That allows room for deciding in someone’s best interests because they are a child; but very little for deciding in their best interests because they are a child with disabilities. This is, however, what the Bill would do. Although the best interests test will apply to anyone with ‘additional support needs’, perhaps a broader category than those with disabilities, this is not enough to make the Bill Convention compliant. Article 2 makes it clear that a discriminatory effect, even if the law is worded in a disability-neutral way, is still discrimination. It would be hard to argue that a law affecting only children with additional support needs will not have a disproportionate effect on children with disabilities.
This is one particular Bill, in one jurisdiction, addressing one small class of decisions by one group of people. All the same, I think that it is an extreme illustration of a general difficulty that this area of law faces. The problems that people face are what lawyers call ‘fact-specific’, they vary so widely that it is hard to make any generalisations about them at all. This leaves legislators with a dilemma. One alternative is to make a law in broad, general, terms. This is what the existing provisions, in the first quote above, do. The problem with this approach is that it gives the authorities a lot of discretion; and the authorities usually already have a lot more power than the people that they are supposed to support. The result can be, as the House of Lords report on the Mental Capacity Act perhaps shows, that a law has little real effect on the ground. The other alternative is to attempt to provide detailed provisions to keep the authorities in check. The problem with this approach is that, because of the complexity of the situations that they address, the provisions can quickly become mind-numbingly complex; yet they might fail to restrain the authorities anyway. This Bill is the perfect example of that. The ideal must surely be a system that appropriately restrains the authorities without tying itself into complex legal knots. I’m not sure that I’ve ever seen anything that fits that description; but I am sure that this Bill isn’t it.