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Medical treatment under the Adults with Incapacity Act

The Adults with Incapacity Act sets out the principles for giving medical treatment to people who can't consent.

If you are ill, with a physical or mental illness, you may need treatment. The law in Scotland assumes that you can give consent, if you are 16 or over, unless there is evidence of impaired capacity. Some people are not able to give consent, either permanently or temporarily.

The act allows you to have treatment, but there are safeguards and exceptions.

If you need immediate treatment to save your life, staff will act immediately. Otherwise, your doctor will make an assessment of your capacity to consent to treatment. If your doctor thinks you cannot consent, he/she will complete a "section 47" certificate. This allows the doctor and other staff to give you the treatment you need. When they do this, they must follow the principles of the act and the code of practice for part 5 of the Act. Sometimes, other health professionals can assess your capacity and fill in the certificate.

They cannot use force unless it is immediately necessary. They cannot use this part of the act to continue to use force, or to detain you in hospital. And, if you are capable, you have the right to refuse treatment.

You might have a welfare attorney or guardian with the power to give consent (or refuse consent) to your treatment. If so, the doctor should consult the attorney or guardian before treating you. If they refuse consent, the doctor can ask the Commission to appoint an independent doctor to give another opinion.

Some treatments carry special safeguards. They include abortion, sterilisation, medication to reduce sex drive and electroconvulsive therapy. These need an independent opinion (section 48) or, sometimes, a court order.

The law is complicated if your doctor thinks you to need to be forced to have treatment. This might need the appointment of a welfare guardian or, if it is treatment for a mental health condition, detention under mental health law. See our "Right to Treat" guidance for more information.

Find advice collected about the operation of mental health and incapacity legislation in Scotland.

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