Principles,patient welfare and the Adults with Incapacity (Scotland) Act 2000

The law surrounding decision-making for adults who lose their capacity varies considerably internationally. In many cases legislation has taken a protective and consequently restrictive role for adults with incapacity and often the issue of capacity assessment within the appropriate legal framework is circumvented. In Scotland, the introduction of the Adults with Incapacity (Scotland) Act 2000 modernised that nation's approach to incapable adults. This article describes briefly the pre-2000 Act situation in Scotland, discusses the main provisions of the Act, reviews the use of principles in incapacity legislation in Britain, and discusses issues relating to patient welfare. The use of principles to extend patient autonomy into incapacity is demonstrated and compared with the English and Welsh Mental Capacity Act 2005 (the 2005 Act) through a discussion of how the principles in each of those Acts promotes particular ideologies of decision making. Finally, the article examines recent Scottish case law relating to the 2000 Act and discusses how the courts are currently interpreting the principles of the Act.