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Question 1: Explain the difference between a devolved and reserved matter.
Principally, a devolved matter is an area in which the Scottish Parliament can make law, whereas legislative power for a reserved matter belongs to the UK Parliament.
The vision for devolution and demand for self government dates back to 1979. A referendum was held, but was unsuccessful in relation to voting percentages. The plight continued until power was eventually devolved on 1 July 1999 at the opening of the Scottish Parliament. This was formed as a result of a majority vote at the referendum on Scottish devolution in 1997 and established by the subsequent Scotland Act 1998.
‘The Scottish Parliament has full legislative competence in devolved areas i.e. those matters that are not ‘reserved’’ (Howells, 2012. p. 53). Devolved areas include; health, education and local government.
While power is devolved, there are a number of areas that are not controlled by the Scottish Parliament. ‘The Scotland Act 1998 contained a list of ‘reserved matters’. These were matters which were to be reserved for the UK Parliament’ (Howells, 2012. p. 52). Examples of reserved matters include; energy, equal opportunities and employment legislation.
In certain circumstances the UK Parliament can legislate in a devolved matter. Howells (2012) describes the convention instigated by Lord Sewel, now recognised as ‘legislative consent motions’. ‘Such motions can save time and the need for separate and similar legislation in both the Scottish and UK Parliaments’ (Howells, 2012. p. 55).

Question 2: Explain the relationship between parental rights and responsibilities under the Children (Scotland) Act 1995
In context to the question, having ‘right’ is classified as an entitlement by law of a parent. Similarly, having ‘responsibility’ is an obligation of a parent to fulfil a series of duties. Parental rights and responsibilities are vitally important in the relationship between parents and children.
In the Children (Scotland) Act 1995, responsibilities are listed before rights. This is structurally sound in that the rights legally assist parents in carrying out their responsibilities. Section 1 of the Children (Scotland) Act 1995 states:
It is a responsibility that the parent has:
(a) To safeguard and promote the child’s health, development and welfare;
(b) To provide, in a manner appropriate to the stage of development of the child-
(i) Direction;
(ii) Guidance,
To the child;
(c) If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
(d) To act as the child’s legal representative,
But only in so far as compliance with this section is practicable and in the interests of the child.
Section 2 subsection 1 of the Children (Scotland) Act 1995 reads:
Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right—
(a) To have the child living with him or otherwise to regulate the child’s residence;
(b) To control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;
(c) If the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and
(d) To act as the child’s legal representative.
It is evident that the list of parental responsibilities and rights are almost a verbatim replication of one another. Less apparent then, is how they should be separated. Section 2 subsection 4 of the Children (Scotland) Act 1995 states:
The rights mentioned in paragraphs (a) to (d) of subsection (1) … are in this Act referred to as “parental rights”; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights.
In other words, parental rights are designed to lawfully protect the child.
A case law example of the relationship between parental rights and responsibilities in action is Houston [1996] S.C.L.R. The mother was attempting to fulfil her parental responsibilities by; safeguarding and promoting her child’s health, development and welfare. Also, by providing direction and guidance in a manner appropriate to the stage of development of her child. In addition, she was acting as a legal representative for her child. The mother had an obligation to look after her son as he was under the age of 16 and acted in his best interests, possibly disputing his capacity to consent.
In the same case of Houston [1996] S.C.L.R. the mother was also exercising her parental rights by defending her son in line with Section 2 subsection 4 of the Children (Scotland) Act 1995 and specifically paragraphs a, b and d of Section 2 subsection 1. She deemed this necessary as she did not agree with the request by the mental health officer for a section 18 order to detain her son during treatment. Furthermore, she did not have the same opinion as her son, who was unwilling to consent to treatment at all, feeling that it was her right to consent to treatment on his behalf.
The result of the case was that the section 18 application did not get approved, but the Sheriff also ruled that, ‘accordingly the mother’s consent was of no moment and could not overrule the child’s decision’ Houston [1996] S.C.L.R. Question 3: What process is required if a child is unable to consent to a healthcare procedure or treatment in Scotland, but a healthcare practitioner believes the procedure or treatment is necessary for the welfare of the child?
Consent can be defined as granting permission or accord provided between two individuals. With specific regard to healthcare, consent is interpreted as a person giving permission to receive any type of medical treatment.
There are three practicalities that have to be achieved for consent to have legal validity. Of these, one has relevance to the question; ‘that the person giving consent must have the necessary capacity to do so’ (Howells, 2012. p. 148).
A person has capacity if they display actual or potential ability to perform, inclusive of mental ability.
In relation to children between the ages of 16 and 18, and those under 16 in Scotland providing consent to medical treatment, the Age of Capacity (Scotland) Act 1991 clarified position and eased longstanding problems encountered nationwide.
Section 1 of the Act states:
(a) A person under the age of 16 years shall, subject to section 2 below, have no legal capacity to enter into any transaction;
(b) A person of or over the age of 16years shall have legal capacity to enter into any transaction.
Subsection (a) refers to an exception, namely section 2, of which subsection 4 states:
‘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’.
Healthcare practitioners assess the capacity of a child through ascertaining if the child comprehends the detail and the consequences of the treatment, inclusive of any potential complications. The practitioner makes a decision if the child has capacity for the particular treatment through gathering and surmising information obtained. Howells (2012) details examples of such information. The healthcare practitioner would generally be minded to conclude that a child does not have capacity for treatment if the child fails to understand the above.
If a child lacks capacity to consent, then the welfare and safety of the child is the overriding principle of legislation that should be adhered to, whilst taking cognisance of the known wishes of the child.
The only time a healthcare practitioner can legally provide a procedure or treatment to a child who is unable to provide their own consent, is in an emergency situation. All other types of procedure or treatment must have consent provided by a person who has parental responsibility for the child.
Clearly, in the majority of situations more than one person holds parental responsibility. This can potentially lead to a conflict situation if one parent is willing to provide consent and the other is not. If this is the case, the legal requirement is that only one parent has to consent, apart from in certain circumstances. This is explained in The Children (Scotland) Act 1995, Section 2 subsection 2, namely; ‘where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other’. It could be argued that the parent wiling to provide consent may lack capacity and the other possibly not.
The Children (Scotland) Act 1995 provides a number of clear principles, yet these have been proven to ineffectively cross reference with the Age of Capacity (Scotland) Act 1991. This was evidenced in Houston [1996] S.C.L.R. 943 where the child’s mother wished to override his refusal to consent to treatment.
Law making requires to be responsive to change, progression and development within a contemporary society. Taking into account the dates both Acts were implemented, now could be time for review.
In summary, the person or persons holding parental responsibility, normally the parents, have legal authority to provide consent to treatment by a healthcare practitioner to their child, where their child lacks capacity to make the decision them self.

Bibliography:
Howells, C. (2012) Unit 2 Parliamentary law-making in Scotland, Block 1, W150 An Introductory to law in contemporary Scotland, Milton Keynes, The open University.
MacKessack, S. (2012) Unit 4 The court structure, Block 1, W150 An Introductory to law in contemporary Scotland, Milton Keynes, The open University.
Houston [1996] S.C.L.R. 943 Reading 3, W150 An Introductory to law in contemporary Scotland, Milton Keynes, The open University.
Children (Scotland) Act 1995, legislation.gov.uk

Word Count: 1494

Bibliography: Howells, C. (2012) Unit 2 Parliamentary law-making in Scotland, Block 1, W150 An Introductory to law in contemporary Scotland, Milton Keynes, The open University. MacKessack, S. (2012) Unit 4 The court structure, Block 1, W150 An Introductory to law in contemporary Scotland, Milton Keynes, The open University. Houston [1996] S.C.L.R. 943 Reading 3, W150 An Introductory to law in contemporary Scotland, Milton Keynes, The open University. Children (Scotland) Act 1995, legislation.gov.uk Word Count: 1494