Mental capacity and the law in Scotland

The Adults with Incapacity (Scotland) Act 2000 aims to protect people who cannot make a decision for themselves.

The Adults with Incapacity (Scotland) Act 2000

The Adults with Incapacity (Scotland) Act 2000 applies to people aged 16 and over in Scotland.

The Act aims to protect people who cannot make a decision for themselves. It means a person can plan ahead for a time when they may be in this situation.

It explains:

  • who can make decisions for them
  • in which situations they can make decisions
  • the process to follow when making decisions.

There are many parts to the Act, including information on powers of attorney.

The Act states that a person lacks capacity if they are unable to:

  • act
  • make decisions
  • communicate decisions
  • understand decisions
  • remember making decisions.

This may be because of a mental disorder or a physical disability that prevents communication. The Act also takes into account that a person’s ability to make decisions (mental capacity) can change. For example, this could be if their health improves.

A person has capacity if they can meet one of the following criteria:

  • understand what a treatment is, what it is for and why it is being suggested
  • understand the benefits or risks of a treatment, or if there are other options
  • understand what will happen if they do not have a treatment
  • remember the information for long enough to use or consider it, so that they can make a decision.

Healthcare professionals will do everything they can to help you make decisions about your treatment and care. If the decision is not urgent and you do not have capacity, it may be delayed. This is to see if your condition improves enough for you to be involved in decision-making.

Managing your care if you have not planned ahead

Usually your family, close friends or carers, will be involved in making everyday decisions about your care. However, sometimes a very important or difficult decision may need to be made about any medical care or treatment.

If you do not have capacity to make your own decisions and there is an emergency, a senior healthcare professional will make the decision about your treatment. They will use the principles set out in the Adults with Incapacity (Scotland) Act 2000 to make their decision. This means they must do their best to make sure any treatment they give you will be of most benefit to you.

Their decision should consider:

  • your wishes, if your healthcare professionals know them or can find them out
  • the views of people who know you well and can tell the health professional about what they think you would prefer.

In a non-emergency situation, the same principles apply. But the doctor recommending the treatment must assess your capacity to make a decision for yourself. If you are unable to make the decision yourself, the doctor will complete a certificate of incapacity. Your doctor will then make the treatment decision on your behalf. They will do this with your attorney, if you have one. If possible, they will find out what your wishes are likely be.