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Medical treatment for adults with incapacity : guidance on ethical and medico-legal issues in Scotland

June 2002
2nd edition October 2002

Summary
Adults with Incapacity (Scotland) Act 2000
The Adults with Incapacity (Scotland) Act 2000 sets out the framework for regulating intervention in the affairs of adults (people over 16) who have impaired capacity. Capacity is assessed in relation to the particular decision that needs to be made.

General principles
Any intervention in the affairs of an incapacitated adult must:

• benefit the adult;
• take account of the adult’s wishes, so far as these can be ascertained;
• take account of the views of relevant others, as far as it is reasonable and practical to do so; and
• restrict the adult’s freedom as little as possible while still achieving the desired benefit.

Emergencies
In an emergency, doctors may provide medical treatment that is immediately necessary to save life or avoid significant deterioration in a patient’s health. If, however, there is evidence of a valid advance refusal of a particular treatment (such as a refusal of blood by a Jehovah’s Witness) that treatment should not be given.

Certificate of incapacity
Other than in an emergency, or where there is a proxy decision maker, where an adult lacks capacity to make health care decisions, a certificate of incapacity must be issued in order to provide care or treatment.

Once a certificate has been issued, doctors may act under the general authority to treat.

Proxy consent
A welfare attorney, person authorised under an intervention order or welfare guardian with powers relating to the medical treatment in question may give consent to medical treatment on behalf of an incapacitated adult.

Proxies may also refuse medical treatment, provided that in doing so they are fulfilling their duty of care to the adult and are abiding by the general principles in the Act.

General authority to treat
Where there is no proxy decision maker, doctors have a general authority to treat a patient who is incapable of giving consent to the treatment in question.

Disagreement
If there is disagreement about an adult’s treatment, there are procedures that must be followed, including obtaining a second medical opinion. If disagreement persists, an application may be made to court.

Introduction
The Adults with Incapacity (Scotland) Act 2000 (the Act) introduced a statutory framework for the medical treatment of incapacitated adults (aged 16 or over) in Scotland. It acts alongside the common law power to provide treatment in emergencies to people who are unable to give consent. The Act introduces new forms of proxy decision making, and clarifies the legal basis upon which doctors make decisions about the medical treatment of incapacitated adults. The Act also makes provision for safeguarding the welfare of incapacitated adults, and managing their property and financial affairs. Doctors may become involved in assessing a person’s capacity to make decisions about these matters but it is Part 5 of the Act, which regulates medical treatment and research, that will have the biggest impact on medical practice. Its provisions have been in effect from 1 July 2002.