In Scotland, the law on acting for an adult who cannot make their own decisions is the Adults with Incapacity (Scotland) Act 2000, not the Mental Capacity Act 2005. If you run a care home, an independent hospital or any service that treats or looks after adults in Scotland, you need to know which part of the Act covers each decision you make for a resident, and which authority supervises you.
Which part of the Act covers your situation
Situations and the provisions that apply
The part of the Adults with Incapacity (Scotland) Act 2000 that applies to common situations in a care home or hospital.
| Situation | What you need | Section |
|---|---|---|
| An adult cannot consent to treatment | A certificate from the practitioner primarily responsible for the treatment, giving authority to do what is reasonable to safeguard or promote health, for up to one year (three in prescribed cases) | Section 47 |
| An adult has a guardian, welfare attorney or intervention order covering the treatment | Their consent where reasonable and practicable; if you disagree, an opinion from a practitioner nominated by the Mental Welfare Commission | Sections 49 and 50 |
| You want to manage a resident's money | A medical certificate of incapacity, notice to the resident, nearest relative and supervisory body, and then follow the Part 4 rules. The Care Inspectorate supervises care homes | Sections 35 to 45 and SSI 2003/266 |
| Your staff need to withdraw from a resident's account | A certificate of authority from the supervisory body naming the staff | Section 42 |
| A resident leaves, or recovers capacity | Keep managing for up to 3 months, prepare a statement, transfer the affairs, tell the supervisory body within 14 days | Section 44 |
| A resident is asked to take part in research | Every condition in section 51, including Ethics Committee approval and consent from a guardian, welfare attorney or the nearest relative | Section 51 |
| A guardian or attorney asks you to accept an authorisation under the Human Tissue (Scotland) Act 2006 | Do not accept it. Welfare attorneys and guardians cannot give those authorisations | Sections 16(6) and 64(2) |
| A concern about ill-treatment or neglect | Report it. Anyone exercising welfare powers who ill-treats or wilfully neglects an adult commits an offence | Section 83 |
The Act in detail
If you operate across the United Kingdom
Law on acting for adults who lack capacity, by nation
The main statute for each nation, so that a provider operating in more than one nation can see which applies where.
| Nation | Main statute | Who supervises residents' money or welfare decisions |
|---|---|---|
| Scotland | Adults with Incapacity (Scotland) Act 2000 | Care Inspectorate for care homes (Part 4); Mental Welfare Commission for certain treatment disputes |
| England and Wales | Mental Capacity Act 2005 | Not covered by this guide |
| Northern Ireland | Mental Capacity Act (Northern Ireland) 2016 | Not covered by this guide |
Steps to get compliant
- Train clinical staff on section 47. Make sure every doctor, dentist, ophthalmic optician and nurse who treats residents knows when a certificate is needed and that it must be in the prescribed form, cover the treatment the adult is receiving, and be reviewed or replaced when it expires or their condition changes.
- Record who holds powers for each resident. Note any guardian, welfare attorney, continuing attorney or intervention order holder and what powers they have. Check their powers before treating the resident or acting on their behalf.
- Decide whether to use Part 4. Part 4 applies automatically to care home services, independent hospitals, private psychiatric hospitals, limited registration services, health service hospitals and the State Hospital. A registered service (one registered with the Care Inspectorate or HIS) that does not want to manage residents' money can give the supervisory body written notice that Part 4 shall not apply to it (section 35(3)). If you use Part 4, set up the certificate, notification and funds-handling procedures in this guide.
- Separate residents' money from your own. Open accounts that keep residents' funds apart from yours and from each other as the supervisory body requires, put funds above £500 where they earn interest, and keep a record of every transaction that you can produce on request.
- Set limits. Do not manage any matter above £10,000, or dispose of moveable property worth more than £100, without the supervisory body's consent.
- Diary the three-year review. The incapacity certificate for managing a resident's money expires after 3 years and must be reviewed if the resident's condition changes.
- Write a departure procedure. Cover the 3-month continuation, the closing statement, the transfer of affairs and the 14-day notice to the supervisory body.
- Have a safeguarding route. Make sure staff know how to raise a concern about ill-treatment or neglect, which is an offence under section 83 for anyone exercising welfare powers.
Legal basis
Primary legislation and key regulations
Official guidance
Scottish Government - Adults with Incapacity (Scotland) Act 2000, Part 4 management of residents' finances (opens in a new tab)
Mental Welfare Commission for Scotland - Section 47 certificates, scope and limitations (opens in a new tab)
Adults with Incapacity (Scotland) Act 2000 (opens in a new tab)
Adults with Incapacity (Management of Residents' Finances) (No. 2) (Scotland) Regulations 2003 (opens in a new tab)