People who have a learning disability or have difficulty communicating may still be able to make decisions.
As a carer, you must always assume that people can make decisions unless there is evidence suggesting they can’t.
An adult with incapacity is someone aged 16 or over who has a mental disorder that makes them unable to:
When a decision is needed about the health care of the person you care for, NHS staff must decide if that person has the capacity to give consent.
Under the the Adults with Incapacity (Scotland) Act 2000:
Before making a decision, NHS staff should talk to the person you care for about their health care and treatment.
They must be sure the person:
If the health professional is undecided, they should then talk to you and anyone else closely involved in the person’s care.
If it is decided that the person you care for cannot give their consent, NHS staff will issue a section 47 certificate of incapacity.
This will normally be kept with the person’s health record for a year but could be extended to three years if the person’s condition is unlikely to improve.
As a carer, you have the right to be involved in decisions about a persons care if that person can’t make a decision for themselves.
This is true whether you are an adult or young carer, a young carer under 16, or a paid or unpaid carer.
Although carers can and should be involved in decisions, they cannot make a final decision on a persons care unless they’re that person’s legal proxy.
If you know what the person you care for wants, you should tell the health professional looking after them. Any information you give health professionals should be kept in the person’s health record.
If decisions are being made about the person you care for, you have a right to:
A legal proxy is a person that can make medical, welfare or financial decisions for an adult with incapacity.
There are 3 types of legal proxy:
Applying to become a legal proxy can be complicated and you may need to seek legal advice from a solicitor or legal advisor.
The Office of the Public Guardian (OPG) may be able to help you with this process.
If you’re a legal proxy, you should be asked to consent on behalf of the person you care for.
Before doing so, you may be asked to show a copy of the power of attorney document, guardianship order or intervention order as proof.
In an emergency, a doctor can go ahead with treatment without your consent if it will:
If you are a legal proxy, you may also have the right to see their health records.
As a legal proxy, you have the right to disagree with the care or treatment of the person you care.
You cannot demand that a particular treatment is given but can object to a treatment that you think should not be given.
If you disagree with a decision, a second opinion will be sought from an independent doctor.
If the second doctor agrees with the first doctor’s decision, the health care or treatment can be given.
If the second doctor does not agree with the first doctor’s decision, it can’t.
If you disagree with the second doctor’s opinion, you can go to the Court of Session to ask for the treatment to be stopped. You may need to get help from a solicitor if you want to do this.
If you disagree with a decision and not a legal proxy:
A doctor can still treat the person you care for unless you go to court and get an order to stop it.
If you’re unhappy about a medical decision, you have the right to make a complaint.
Find out more about giving feedback and making a complaint
The person you care for has the right to:
Any decisions about a person’s health care or treatment must always:
The person you care for can be treated without consent if:
Only a doctor appointed by the Mental Welfare Commission for Scotland can allow the following treatments to be given to people with incapacity:
Only the Court of Session can allow the following treatments to be given to people with incapacity:
Research on adults with incapacity can only be done if:
This information is also available as a leaflet, which has been translated into different languages and formats – including audio, BSL, large print and easy-to-read.
The Mental Welfare Commission for Scotland (MWC) helps to look after the rights and welfare of those with mental illness, learning disabilities and other related conditions.
They can also give you information and advice on people’s rights under the Adults with Incapacity Act.
The Office of the Public Guardian can provide information about becoming a legal proxy.
The Information Commissioner’s Office (Scotland) can provide more information about your rights under the Data Protection Act.
They can also be contacted if you wish to complain about how the NHS has used or protected your information.
Healthcare Improvement Scotland (HIS) set the standards and quality of care that NHS is expected to meet.
Care Information Scotland (CIS) offers a single point of care information for older people in Scotland through their website and helpline.
You can reach the CIS helpline on 0800 011 3200.
Last updated:
20 January 2023