Adults with Incapacity Act (AWI)

Warning

How to assess capacity

Remember that capacity is decision specific! Your patient may well have the capacity to decide whether they want sugar in their tea or not. This does not mean they have capacity to decide what medications they need.

Wherever possible we should be supporting our patients to make the decisions that they have the capacity to make. 

Below are the basic principles used under Scottish Law to determine if a patient has capacity to make a particular decision or not. 

How to determine if a patient has capacity: 

  • Does the person have a mental disorder?
  • Has the mental disorder made the person unable to make the decision at hand?
  • This may be because they are incapable of any of the following:
    • acting; or
    • making decision; or
    • communicating decisions; or
    • understanding decisions; or
    • retaining the memory of decisions.

For more information on how to assess capacity, click on the link in Resources below where you will find a more detailed guide to assessment. 

If you feel the person does not have capacity to make decisions about their medical treatment, discuss with senior colleagues and complete a Section 47 Form with the associated Annex 5 form (which details proposed treatment plan and who has been consulted about the completion of the form) - see PDF in resources.

Remember that only doctors who are fully licensed to practice (FY2 or more senior) can complete a Section 47 AWI form.

The Adults with Incapacity Act

The Adults with Incapacity (Scotland) Act 2000 provides a framework for safeguarding the welfare and managing the finances of adults (people aged 16 or over) who lack capacity. 

It applies to individuals who lack capacity due to mental illness, learning disability, dementia or a related condition, or an inability to communicate.

It addresses issues such as Welfare Guardianship, Financial Guardianship, Power of Attorney, Medical Treatment for people who lack capacity to make decisions about their treatment.

Please see the link below to additional information on the Mental Welfare Commission Website.

Last reviewed: 21/02/2024

Next review date: 21/08/2024

Author(s): Medical Education Fellow, NHS Lothian.

Author email(s): mypsych@ggc.scot.nhs.uk.

Reviewer name(s): Medical Education Fellow, NHS Lothian.