Adults with Incapacity Amendment Act: consultation

Closes 17 Oct 2024

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An enhanced section 47 certificate to prevent a person being treated for a physical condition from leaving hospital, whether temporarily or permanently

Currently Scots law provides no specific process to authorise measures to prevent a person being treated in hospital for a physical condition from leaving. This gap was identified in the Scottish Law Commission’s report on Adults with Incapacity in 2014.

We agree with Scottish Mental Health Law Review that there is a significant gap in the law that needs to be remedied given the lack of a specific process to authorise measures to prevent a person being treated for a physical condition from leaving hospital, whether temporarily or permanently. 

We are proposing that an additional process is required to enable authorisation of any necessary measures to prevent an adult with incapacity from going out of a hospital unaccompanied and that this process should be connected to the process of authorising medical treatment.

40. Do you agree that the lead medical practitioner responsible for authorising the section 47 certificate can also then authorise measures to prevent the adult from leaving the hospital?
41. Do you think the certificate should provide for an end date which allows an adult to leave the hospital after treatment for a physical illness has ended?
42. Do you think that there should be a second medical practitioner (i.e. one that has not certified the section 47 certificate treatment) authorising the measures to prevent an adult from leaving the hospital?
43. If yes, should they only be involved if relevant others such as family, guardian or attorney dispute the placement in hospital?
44. Do you agree that there should be a review process after 28 days to ensure that the patient still needs to be made subject to the restriction measures under the new provisions?
45. Do you agree that the lead clinician can only authorise renewal after review up to maximum of 3 months before Sheriff Court needs to be involved in review of the detention?
46. What sort of support should be provided to enable the adult to appeal treatment and restriction measures?