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Adults with Incapacity Act - Scotland

Post date: 01/06/2014 | Time to read article: 3 mins

The information within this article was correct at the time of publishing. Last updated 18/05/2020


The Adults with Incapacity Act was introduced in 2000 to safeguard the welfare of adults (age 16 and over) who lack capacity for making their own healthcare decisions, due to a mental disorder or an inability to communicate. This factsheet provides information on how patients with incapacity should be cared for.

General principles

The law generally presumes that capable adults are able to make their own decisions regarding the medical care they receive. Under the act, an adult is considered to be incapable if they are unable to:

  • Make decisions
  • Act on decisions
  • Communicate decisions
  • Understand decisions
  • Retain the memory of decisions.

The act allows adults with capacity to appoint a welfare attorney to make decisions for them in case their condition deteriorates and they lose capacity to make their own healthcare decisions. It also makes provisions for the appointment of a guardian if the patient has already lost, or never had, capacity to make their own healthcare decisions.

The act does not allow the welfare attorney or guardian to make a will for someone with impaired capacity, or to provide consent for certain types of medical treatment on their behalf. Any intervention in the care of an incapacitated adult, either by healthcare professionals or by their welfare attorney or guardian, must:

  • Benefit the patient
  • Take account of the patient’s wishes, if these can be ascertained
  • Take into account the views of others involved in the care of the patient, wherever possible
  • Allow the patient to retain as much of their independence as possible.

Medical treatment decisions

Under the act, you may provide treatment to safeguard the physical or mental health of an adult who is unable to provide consent. If a welfare attorney or guardian has been appointed, you must seek his or her consent on behalf of the patient where possible. Where a patient has not appointed a guardian, you may still provide medical treatment for certain conditions without consent, if a certificate of incapacity with a specified validity period is issued. If you are unsure about whether or not a patient has capacity, or for more details on the forms of treatment you are able to provide without consent, call MPS for advice.

If there is any disagreement about the treatment needs of an adult without capacity, you must approach the Mental Welfare Commission to seek a specialist for a second opinion.

Certificate of Incapacity

Apart from in an emergency all medical treatment under the act must be covered by a certificate. The certificate must state the following:

  • That the doctor has examined the patient and they lack capacity
  • Nature of the medical treatment
  • Likely duration of incapacity
  • Period of authorisation.

To avoid unnecessary bureaucracy, doctors are likely to want to use relatively general wording in the certificate to allow for flexibility. This general authority to treat can be refined via reference to treatment plans as detailed in Appendix 5 of the Code of Practice. Generally the period of authorisation should not exceed a year, although it can be valid for up to three years in conditions such as dementia, where capacity is unlikely to be regained.


In an emergency, you can treat an adult with incapacity if your actions will either save a life or avoid deterioration of the patient’s condition. However, if you know that the patient would not consent to certain forms of treatment (for example, blood transfusion for a Jehovah's Witness) you should refrain from providing treatment.

Conducting research under the act

The act allows research to be conducted on an adult with impaired capacity, but usually only if:

  • The research cannot be carried out on an adult with capacity
  • The outcome of the research is likely to benefit the patient or other adults suffering from a similar condition
  • It is carried out with consent from the patient or their welfare attorney or guardian
  • The research will not put the patient at substantial risk of harm or discomfort
  • The Ethics Committee have given approval for the research to be conducted.

What are your duties under the act?

  1. If you suspect that an adult may lack capacity, it is your duty to consider whether the act might be relevant to the adult’s situation.
  2. Under the act, you must are responsible for assessing the patient’s capacity for a specific occasion, for example, for a surgical procedure.
  3. It is your responsibility to complete Court reports if someone caring for the adult applies for an intervention or guardianship order.
  4. If the condition of an adult with impaired capacity changes, you should review the Certificate of Incapacity, and specify a new validity period if necessary.
  5. You may be required to prepare other reports on request for appeals, complaints and monitoring by supervisory bodies, including the Local Authority, Mental Welfare Commission and Public Guardian.

Further information

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