The Adults with Incapacity Act ensures that all adults receive equity of access to healthcare regardless of their capacity to consent and enables health professionals to deliver care lawfully. There are four ways in which consent or authority to treat an adult with incapacity can be obtained.

4.2.1 Welfare power of attorney

The Adults with Incapacity Act allows people over 16 years of age to grant a Power of Attorney to a proxy decision maker who will have the power to give consent to medical treatment when the patient loses capacity. This must be granted whilst the person still retains capacity, and only comes into effect once the person has become incapacitated. Unless to do so is unreasonable or impractical, the proxy must be consulted about treatment decisions.

Welfare powers of attorney can only make decisions on a patient’s behalf if the patient loses capacity to deal with the matters covered by the power of attorney. However, if the power of attorney disagrees with the clinical staff as to the proposed medical treatment of the patient, the clinical staff should ask the Mental Welfare Commission to nominate a second clinician to give an independent opinion as to the medical treatment proposed. Authority to treat will apply if the second clinician certifies that in his opinion the proposed medical treatment should be given. If the clinician disagrees with the opinion of the second clinician, he may ask the Court of Session to decide whether or not the proposed treatment should be given.

4.2.2 Intervention order

NHS Ayrshire & Arran may apply to the Court for an Intervention Order under the Adults with Incapacity Act, to deal with specific, clearly defined financial, property or welfare matters on a one off basis.

4.2.3 Welfare guardian

An application may be made to the court for a Guardian to be appointed with powers over personal welfare by any person having an interest (including the adult himself/herself). The welfare guardian may be granted power by the Sheriff to consent to medical treatment on behalf of the incapacitated patient.

4.2.4 General authority to treat

Part 5 of the Adults with Incapacity Act confers a general authority to treat a patient who is incapable of consenting to treatment provided that the appropriate procedure has been followed. The general authority to treat is obtained by the completion of the Certificate of Incapacity (section 47) and its signature by the medical practitioner primarily responsible for the patient’s care. The medical practitioner or any other person authorised by him or her and acting on his or her behalf under instruction, or with his or her approval or agreement is given authority to do what is reasonable in the circumstances, to safeguard or promote the physical or mental health of the adult.

A treatment plan for patients receiving ongoing treatment under the terms of Part 5 of the Adults with Incapacity Act should be completed in accordance with the Act’s Code of Practice