The Adults with Incapacity Act sets out the
principles for giving medical treatment to people who can't
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
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, they 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. If you are capable, you also have the right
to refuse treatment.
You might have a welfare attorney or guardian with the power to
give, 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 an 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.