Adults with Incapacity Amendment Act: consultation

Part 5 of the Adults with Incapacity (AWI Act) gives authority to treat a person who is incapable of consenting to medical treatment to safeguard or promote their physical or mental health.

Section 47 of the AWI Act allows the medical practitioner (or other specified healthcare professional) who is primarily responsible for the adult's treatment to complete a certificate certifying that in their opinion the adult is incapable of making a decision on the medical treatment in question.

The Scottish Law Commission’s report in 2014 on Adults with Incapacity had noted that there were concerns whether there was sufficient authority to transport persons to hospital where they lack capacity to agree to that action (paragraph 4.9). However they concluded that conveying a person to hospital could normally be justified under the common law principle of necessity in an emergency and may otherwise be authorised by the fact that a certificate under section 47 gives “authority to do what is reasonable in the circumstances, in relation to the medical treatment in question, to safeguard or promote the physical or mental health of the adult”. This could include taking someone to hospital to receive treatment.  But conveying someone to hospital for non-urgent care would require an existing s.47 certificate to be in place.

We therefore propose to introduce a new adapted section 47 certificate that would expressly allow a person to be conveyed to hospital and ensure that this process is authorised in law.