Adults with Incapacity (Scotland) Act 2000: A Care Staff Guide

In Scotland, decisions for adults who cannot make them for themselves are governed by the Adults with Incapacity (Scotland) Act 2000, not by the Mental Capacity Act that applies in England and Wales. Care and healthcare staff working in Scotland, and those who move between the UK nations, need to know the differences. This guide explains the main parts of the Scottish Act, including the principles, powers of attorney, treatment certificates and guardianship.

It is general information, not legal advice. Always follow the Act's codes of practice, your employer's policies and the guidance of the Mental Welfare Commission for Scotland. For the position in England and Wales, see our guide to Mental Capacity Act and DoLS training.

What the Act is for

The Act provides a legal framework for making decisions about the welfare, property and finances of adults who lack capacity. Under the Mental Welfare Commission's summary, anything done under the Act must meet a set of principles. It must:

• be of benefit to the adult
• be the least restrictive option available in the circumstances
• take account of the adult's present and past wishes and feelings
• take account of the views of relatives and primary carers, where it is practicable to do so
• encourage the adult to use their existing skills and develop new ones

These principles shape every decision, from a day-to-day care choice to a court application. Staff should be able to show how they were considered.

Powers of attorney

Part 2 of the Act covers powers of attorney. There are two main types:

• Continuing power of attorney. It gives authority over financial and property matters, and can usually be used as soon as it is registered, unless the document says otherwise.
• Welfare power of attorney. It covers personal welfare decisions, and applies only when the person has lost the capacity to make those decisions. It may need to be supported by medical certification at that point.

To be valid, a power of attorney must be certified by a solicitor or doctor, who confirms that the person understands what they are signing and is not under undue influence. It must also be registered with the Office of the Public Guardian. Our guide to lasting power of attorney guide explains how these powers work in England and Wales, where the rules differ.

Medical treatment and the section 47 certificate

Part 5 of the Act deals with medical treatment. A doctor who is treating an adult who lacks capacity completes a section 47 certificate, which shows authority to provide treatment. The Mental Welfare Commission explains that the certificate is still required where an attorney or guardian has been given powers over treatment decisions. Care staff should know where the certificate is kept, what it covers and when it expires, and should not assume that it covers everything. If the person's condition or treatment plan changes significantly, ask the doctor to review it.

Guardianship

When ongoing powers are needed and no power of attorney is in place, a guardianship order can be made. Guardians may be given welfare powers, financial powers or both. A welfare guardian may be an individual, or the chief social work officer of the local authority. Financial guardians can be relatives, solicitors or accountants. An application goes to the sheriff court and must be supported by reports from two doctors and a mental health officer. The order has to be reviewed and may be renewed.

Who oversees the system

• Office of the Public Guardian. Registers powers of attorney and deals with concerns about property and finances.
• Local authority social work. Deals with concerns about welfare powers.
• Mental Welfare Commission for Scotland. Provides advice and oversight, and monitors the Act's use.
• Care Inspectorate. Inspects care services and expects staff to understand incapacity law. See our Care Inspectorate Scotland training guide.

Practical points for staff

• Check the paperwork. Before acting on an attorney's or guardian's instructions, make sure you have seen the registered document and know its scope.
• Record capacity assessments. Capacity is decision-specific, so record the decision, how the person was supported and the outcome.
• Keep the person involved. Even where someone else has powers, ask for the adult's own views and report them.
• Tell the right people. If you are concerned about the use of a power of attorney or guardian's powers, raise it with your manager and the relevant oversight body.
• Know the differences. Do not apply English concepts, such as the Court of Protection, in Scotland. The sheriff court is the relevant forum.

Working across the UK

If your organisation operates in more than one UK nation, make sure staff training reflects the law that applies where people are living. The principle of acting in a person's best interests, for example, is central in England and Wales, as described in our guide to best interests decision-making, while the Scottish Act frames decisions around benefit and the least restrictive option.

Frequently asked questions

Does the Mental Capacity Act apply in Scotland?

No. In Scotland the Adults with Incapacity (Scotland) Act 2000 provides the legal framework for adults who lack capacity.

What is a section 47 certificate?

It is the certificate a doctor completes under Part 5 of the Act to show they have authority to treat an adult who lacks capacity.

Who can apply for guardianship?

Applications go to the sheriff court, supported by medical and mental health officer reports. Relatives, professionals or the local authority may be involved.

Where can teams find training?

See the CPD hub for professional development options for care and healthcare teams.

Learnsignal will update this guide as Scottish legislation and guidance change.