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Mental capacity in Scotland

The Adults with Incapacity (Scotland) Act 2000 provides the legal framework for making decisions on behalf of people who lack the mental capacity to make decisions themselves.

The Adults with Incapacity (Scotland) Act 2000 sets out five ‘statutory principles’:

  • any action or decision taken must benefit the person and only be taken when that benefit cannot reasonably be achieved without it
  • any action or decision taken should be the minimum necessary to achieve the purpose – it should be the option that restricts the person’s freedom as little as possible
  • in deciding if an action or decision is to be made, and what that should be, account must be taken of the present and past wishes and feelings of the person, as far as this may be ascertained
  • the decision maker should take account of the views of others with an interest in the person’s welfare
  • encourage the person to use existing skills and develop new skills

What is mental capacity?

Mental capacity is the ability to make a decision, whether it is an everyday decision such as what to wear, or a more important decision such as where to live.

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How is mental capacity assessed?

There is a two stage test to work out if someone lacks capacity.

Stage one: Does the person have a mental disorder or severe communication difficulty because of a physical disability? This could include dementia, learning disabilities, mental illness, brain damage etc.

Stage two: Has the mental disorder or severe communication difficulty made the person unable to make the decision or decisions in hand? A person is unable to make a decision for themselves if they are incapable of:

  • acting on decisions or
  • making decisions or
  • communication decisions or
  • understanding decisions or
  • retaining the memory of decisions
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Who assesses mental capacity?

Normally the local authority social work department in the area where the person you look after lives will be involved in initially assessing the needs of a person who may have mental incapacity. In most cases, the person’s GP or consultant will also be involved in assessing capacity.

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What can I do if I disagree with a mental capacity assessment decision?

If you disagree with a mental capacity assessment decision, for example if the person you look after is assessed as lacking mental capacity when you think they have mental capacity, there are various ways you can try and resolve this.

You can raise the matter with the person who carried out the assessment and ask them to give reasons why they believe the person lacks mental capacity to make the decision, and ask them to provide objective evidence to support that belief.

You could try and get a second opinion from an independent professional and/or discuss this with the Mental Welfare Commission.

If you cannot resolve the disagreement then you may be able to apply to the Court of Session, who can make a decision as to whether a person has mental capacity.

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What happens if the person I look after is assessed as lacking mental capacity?

If the person you look after is assessed as lacking mental capacity, then any decision made on their behalf should be done in accordance with the five statutory principles (outlined here). This is the case whether the person making the decision is a carer, a power of attorney, a guardian or intervener, or a professional.

Who should actually make the decision will depend on the decision in question and on whether there is anyone with the legal right to make the decision.

If the decision is an everyday decision then the person most directly involved with the person should be the decision maker. For example, if you help the person you look after get dressed, you will make the decision as to what they wear.

If the decision is about property or financial affairs and you or another family member or friend has a continuing power of attorney or a guardianship or intervention order for financial matters, then you or the family member or friend should be the decision maker.

If the decision is about health or welfare and you or another family member or friend has a welfare power of attorney or a guardianship or intervention order for welfare, then you or the family member or friend should be the decision maker.

If there is no power of attorney or guardian or intervener then the professional involved should be the decision maker.


Medical decisions

If the person needs immediate treatment to save their life, staff will act immediately.

Where non-urgent medical decisions are needed and you have a welfare power of attorney or guardianship, you can consent to treatment on their behalf.

If there is no welfare power of attorney or guardianship, a doctor will make an assessment of capacity to consent to treatment. If the doctor thinks the person cannot consent, s/he will complete a "section 47" certificate. This allows the doctor and other staff to give treatment required.

If you are welfare power of attorney or guardian and withhold consent to treatment, the doctor can ask the Mental Welfare Commission to appoint an independent doctor to give another opinion. Depending on whether disagreement still exists, and the urgency of treatment required, the law may require an intervention order from the Sheriff Court.

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