The Adults with Incapacity (Scotland) Act 2000  as amended by the Adult Support and Protection (Scotland) Act 2007  regulates interventions into the affairs of adults with impaired capacity. Within the Act “incapable” means incapable of acting or making decisions or communicating decisions or understanding decisions or retaining the memory of decisions in relation to any particular matter, by reason of mental disorder or of inability to communicate because of physical disability.

A patient shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication, if that lack or deficiency can be made good by human or mechanical aid.

For the purposes of the Act, incapacity must be judged in relation to particular matters, not as an “all or nothing” generalisation. A patient may have capacity to make some decisions, but not others.

There will be occasions when a health professional is unsure if the patient has the capacity to give informed consent. In these cases the health professional should always seek advice and support from the consultant in charge of the patient’s care. Health professionals should consider seeking advice from specialist mental health service practitioners. Patients with cognitive impairment, learning difficulties or mental health problems, may have residual capacity to consent to some aspects of their care.

In some cases, it may be predictable that a patient may lose capacity or find it more difficult to make decisions at some point in the future. This should be anticipated wherever possible, allowing for discussions about the patient’s wishes while they still have capacity to do so. These discussions may include: any potential treatments the patient may wish to receive or refuse; emergency interventions such as CPR; or whether they would want anyone else to be involved in making decisions about their care. These discussions should be clearly documented.