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Adults with Incapacity (Scotland) Act 2000
The Adults with Incapacity (Scotland) Act was passed by the Scottish
Parliament in 2000. It is intended to make provisions for the protection
of adults who are incapacitated by putting into law provisions for their
financial and medical arrangements.
In the case of a person’s medical treatment before
they become incapacitated they have the right to appoint a welfare attorney
who will make decisions on their behalf on the matters specified in
the event of the person becoming incapacitated.
The decisions of a welfare attorney are legally binding
on doctors. The difficulty with this is that the welfare attorney does
not have to be medically qualified to make these decisions and does
not have to follow the advice of the doctors. The welfare attorney may
also be acting in his/her own interests rather than in the interests
of the incapacitated person. However there are regulations within the
legislation to protect against the abuse of power by a welfare attorney.
- If the doctor and the welfare attorney agree on
the treatment to be given to the incapacitated patient then that treatment
can be given
- However if another interested person, e.g. a family
member, does not agree with the decision of the welfare attorney and
the doctor then they have the right to appeal to the Court of Session
against the proposed treatment
- If the welfare attorney and doctor disagree about
the treatment to be given then the doctor will ask the Mental Welfare
Commission to appoint a ‘nominated medical practitioner’
to give a second opinion on the proposed treatment. If either the
doctor or the welfare attorney or another interested party then disagree
with the second opinion then they can appeal to the Court of Session
- In the meantime the treatment will not be given,
or withdrawn as the case may be.
The doctor must be aware that there is
an appointed welfare attorney and it must be reasonable and practicable
for the doctor to gain the welfare attorney’s consent for the
treatment to be given. Otherwise the doctor may act according to his/her
own clinical judgement.
Jacqueline Dalrymple June 2002
Copyright
© 2002-2008 The Society for the
Protection of Unborn Children. All Rights Reserved.
Tel: 0141 221 2094. E-mail:
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