39.—(1) Subject to subsection (3) of this section, a F14[bodily sample] which is required to be taken from any person for the purpose of giving effect to a direction under section 38 of this Act shall not be taken from that person except with his consent.

(2) Where for the purpose of giving effect to a direction under section 38 of this Act a F14[bodily sample] is required to be taken from a person who is not of full age and the court considers that he is in the circumstances capable of giving or refusing the necessary consent, any consent given or refused by him shall be as effective as it would be if he were of full age.

(3) For the purpose of giving effect to a direction under section 38 of this Act—

(a) a F14[bodily sample] may be taken from a minor, other than one to whom subsection (2) of this section relates, if the person having charge of or control over the minor consents:

Provided that where more than one person has charge of or control over the minor and they disagree as to whether consent should be given, the minor shall be treated as not having consented;

(b) a F14[bodily sample] may be taken from a person of full age who is, in the opinion of the court, incapable of understanding the nature and purpose of F14[DNA tests] if the person havingcharge of or control over him consents and any medical practitioner in whose care he may be has certified that the taking of a F14[bodily sample] from him will not be prejudicial to his proper care and treatment:

Provided that where more than one person has charge of or control over the person concerned and they disagree as to whether consent should be given, the person concerned shall be treated as not having consented.