Guidance on assessing capacity and considering wellbeing: analysis of consultation responses

Analysis of consultation responses on guidance for education authorities and school staff on assessment of capacity and consideration of wellbeing of children.

Overview of Consultation responses

6. There were a total of 27 responses received for this consultation. 25 of those responses came from organisations, whilst the remaining 2 were submitted by individuals.

7. 17 out of 27 respondents agreed to have their responses published. These responses have been published on the Scottish Government's Consultation Hub and they can be viewed by accessing the following link:

All responses were taken account of and have been considered within this report, but the percentages used in the report refer to those whose responses were able to be captured against the structure of the consultation questionnaire and completed a RIF.

8. All respondents were given the opportunity to submit their responses anonymously, or for their responses to be anonymised in reporting. Prior to publication, all responses were moderated to ensure no inappropriate language or information which could potentially identify individuals by name.

Action as a result of consultation

9. Overall the guidance has been received positively. However, the consultation suggested that a number of areas could be further improved, particularly in relation to the case studies, and that Chapter 6's purpose was unclear in places. As a result of the consultation the guidance has been significantly amended, although the fundamental presentation of the guidance has not changed. An overview of updates to the guidance following the consultation include:

  • Clarifying the role of the children's support service.
  • Have drawn out in the guidance sources of information for parents.
  • Have clarified the interaction between the child and parent's rights, including in the guidance that an agreement must be reached about whose rights should be used, particularly in the circumstances where there is disagreement between the eligible child and their parent.
  • Included the definition of eligible child.
  • Have included information on the format in which requests from children to exercise their rights can be made.
  • Have clarified the factors that can be taken into account when making the evidence based decisions regarding the assessment of capacity, making it clear that those working and living with the child may use any evidence they consider appropriate to establish maturity and understanding.
  • Have added references to young carers and looked after children within the guidance, given that the extension of children's rights will benefit looked after children and young people and young carers particularly.
  • Resources have been added based on stakeholder requests, as appropriate.
  • The relevance of Chapter 6 was reassessed and relevant information was moved to more suitable areas of the guidance, with the remainder of the chapter being removed.
  • The case studies have been rewritten to provide even further clarity.

10. In addition to the public consultation, the guidance has been developed taking note of comments received from representatives of the Advisory Group for Additional Support for Learning, the ADES Children's Services Group, and the Association of Support for Learning Officers in a focus group, and during routine meetings of these groups. Relevant comments from the recent consultation on the Supporting Children's Learning Code of Practice have also helped inform the further development of this guidance.

11. We would like to thank everyone who responded to the consultation and gave their time to make a contribution to it.

Next Steps

12. It is intended that the non-statutory guidance (which this consultation referred to), the revised Code of Practice, and guidance on the section 70 complaints procedure will be published on 20 December 2017. This is ahead of the commencement of the changes to the Act, which will be on 10 January 2018.


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