In medical and psychiatric emergencies for any non detained patient, common law allows treatment to protect patient's life and/or well-being and/or well-being of others. No certification is needed beyond description of the action in the casefile. However any patient who has capacity to make or withhold consent cannot be given medical treatment without that consent. The law provides the remedies below for the treatment of patients incapable to consent to treatment because of mental disorder. Advice can be sought from the Adult Mental Health Liaison Service; see NHSGGC StaffNet (link only active via NHS network) for referral form to be used during working hours and the separate referral process for Emergency Departments and out of hours.
A patient who is incapable of making decisions about medical treatment can be given "any procedure or treatment designed to safeguard or promote physical or mental health" under section 47 of the Adults with Incapacity (Scotland) Act 2000 in the absence of consent, subject to the principles of that Act. This requires the medical practitioner primarily responsible for the medical treatment of the adult i.e. usually their medical / surgical Consultant or General Practitioner to issue a section 47 Certificate of Incapacity.
The Act allows for the administration of medication to treat mental disorder (includes acutely disturbed behaviour secondary to delirium and dementia) without and/or against consent of patient. It does not allow administration of non-psychiatric treatments without consent.
If a patient is being considered for an Emergency Detention Certificate (EDC) under section 36 of the Mental Health Care & Treatment Scotland Act 2003 (MHCTSA 2003) see the EDC Process (link active on website only) for guidance and useful contact information.
In medical emergencies for any detained patient, section 243, Mental Health (Care & Treatment) (Scotland) Act 2003 allows the administration of medical treatment, without consent to:
Following this treatment the administering doctor has a responsibility to inform the Mental Welfare Commission of their action within 7 days and to inform the patient's Responsible Medical Officer.
Guideline reviewed: May 2023
Page last updated: September 2023