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About capacity in Scotland

What is capacity?

Capacity is the ability to make a decision for yourself. It’s time and decision-specific. This means that whether or not you have capacity depends on when the decision needs to be made and what the decision is. So, you might lack capacity to make a decision on one day but be able to make that decision at a later date. This might be, for example, because you have dementia and your ability to remember information differs from one day to the next.

Also, you might have capacity to make some decisions but not others. For example, you might have capacity to decide what you want to eat every day but not to understand what will happen if you refuse life-sustaining treatment.

When does someone lack capacity?

You lack capacity if you cannot do one of these things:

  • act on decisions
  • make decisions
  • communicate decisions
  • understand decisions
  • retain the memory of any decisions made

If you live in Scotland and lack capacity, the law that says how you’ll be treated is called the Adults with Incapacity (Scotland) Act 2000. The Act says that people must be assumed to have capacity unless it’s proven otherwise. However, if a decision needs to be made about your health or care and a healthcare professional thinks that you might lack capacity, then they’ll need to assess whether or not you have capacity to make that decision.

How are decisions made on behalf of someone who lacks capacity?

The Adults with Incapacity (Scotland) Act 2000 says that when making a decision about a medical treatment, the healthcare professional must take into account the past and present wishes of the person.

If you don’t have an Advance Directive or Welfare Power of Attorney

 If you’re unable to make a decision about your medical treatment and you haven’t made an Advance Directive or a Welfare Power of Attorney, then your doctor will decide what treatment to give you.

They’ll base their decision on what they think will ‘benefit’ you, and they must take into account the views of your family members or others close to you. However, legally, they don’t have to follow what these people say. This means that if you haven’t made an Advance Directive or Welfare Power of Attorney, the doctor has the final say about what treatments you receive.