Section 47 in Scotland: When a Patient Cannot Consent to Treatment

You are looking after a patient who has been admitted with a chest infection. They need intravenous antibiotics, but they are acutely delirious. When the treatment is explained, they cannot hold onto the information long enough to understand what is being proposed or make a decision about it.

Someone tells you, “They have a Section 47.”

That sentence is common on Scottish placements, but it can make Section 47 sound like a permission form that replaces consent. It does not. To understand what the certificate is doing, start one step earlier: can this patient make this treatment decision themselves?

Before Section 47: can the patient make this decision?

In Scotland, an adult aged 16 or over is not assumed to lack capacity because they have dementia, a learning disability, delirium, a brain injury or a mental illness. Capacity has to be considered in relation to the decision that actually needs to be made.

Under the Adults with Incapacity (Scotland) Act 2000, incapacity can include being unable to act, make a decision, communicate a decision, understand a decision or retain the memory of a decision because of mental disorder or an inability to communicate because of physical disability. A communication difficulty on its own is not enough if it can be overcome with appropriate human or mechanical assistance.

That matters at the bedside. A patient might be unable to understand a complex decision about surgery but still be able to decide whether they want assistance with washing. Another patient may lack capacity while severely delirious today and regain it as the delirium resolves.

Before concluding that someone cannot decide, they should be supported to do as much of the decision-making as possible. That may mean using simpler language, allowing more time, treating pain, using communication aids, involving speech and language therapy or an interpreter, or returning to the discussion when a temporary problem such as drowsiness or acute illness has improved. The aim is not to find incapacity. The aim is to find out whether the person can make this decision with the right support.

So where does Section 47 enter?

Go back to the patient with delirium. The antibiotics have been explained in an appropriate way, but at this point they remain unable to understand and retain enough information to make the treatment decision. The team still needs a lawful basis for non-emergency treatment.

Part 5 of the Adults with Incapacity (Scotland) Act 2000 provides a general authority for medical treatment when the relevant requirements are met. Section 47 is the part that requires an authorised healthcare professional to certify that the adult is incapable in relation to the treatment decision in question. The certificate therefore does not become the patient's consent. It is part of the legal mechanism that allows treatment to proceed despite the patient being unable to give or refuse consent themselves.

The medical practitioner primarily responsible for the treatment can issue the certificate. Certain other healthcare professionals, including appropriately trained registered nurses, may also be authorised to issue one within their area of practice. That is very different from a student nurse independently deciding that a patient “needs a Section 47”. As a student, your role is to understand what the certificate means, notice when the legal authority is unclear and raise it with the registered professional supervising the care.

What is actually authorised?

The certificate must relate to medical treatment being considered. Under the Act, medical treatment includes procedures or treatment intended to safeguard or promote physical or mental health. For a single intervention, the certificate may relate to that treatment and what is reasonably required around it. Where a person has several ongoing healthcare needs, a treatment plan can be used alongside the certificate so that the scope of treatment is clear.

This is why “the patient has a Section 47” is not enough information for practice. The useful question is: what treatment does it cover?

If the patient with delirium has a certificate and treatment plan covering the antibiotics and associated care, that does not automatically create authority for every unrelated intervention that might later be proposed. If the treatment changes significantly, or the person's condition or capacity changes, the legal authority needs to be reconsidered.

A certificate also has a period of validity. The practitioner sets a period appropriate to the person's condition and circumstances. The usual statutory maximum is one year. A certificate can extend to three years only in prescribed circumstances, including certain cases of severe or profound learning disability, severe dementia or severe neurological disorder where the incapacity is unlikely to improve and there is no curative treatment for the condition causing it. A long expiry date should never be read as “capacity does not need thinking about again until then”.

The certificate sits inside the principles of the Act

Section 47 is not a shortcut around the person's rights. Any intervention under the Adults with Incapacity Act has to be considered through the Act's principles.

• Benefit: the intervention must benefit the adult, and that benefit could not reasonably be achieved without it.
• Least restrictive option: the intervention should restrict the person's freedom as little as possible while still achieving its purpose.
• Wishes and feelings: the adult's present and past wishes and feelings should be taken into account as far as they can be understood.
• Consultation: relevant people identified by the Act should be consulted where reasonable and practicable.
• Use of skills: the adult should be encouraged to use existing skills and develop new ones where this is reasonable and practicable.

So a person who cannot legally consent to the treatment does not disappear from the decision. They should still be spoken to, supported to understand what is happening and involved as far as they are able. Their distress, preferences, communication and behaviour still matter.

What if there is a welfare attorney or guardian?

A welfare attorney, welfare guardian or person authorised under an intervention order may have powers relevant to medical treatment, but the title alone does not tell you what those powers are. The document has to be checked.

Importantly, the existence of a proxy does not simply replace the Section 47 process. The Part 5 Code of Practice states that a Section 47 certificate is still required. Where a proxy has the relevant welfare power and it is reasonable and practicable to seek their consent, the practitioner should do so.

If a proxy with relevant authority disagrees with the proposed treatment, there is a statutory dispute process. A certificate should not be treated as a way of bypassing valid welfare powers.

Now the difficult bit: what if the patient says no or resists?

This is where understanding the limits of Section 47 becomes especially important.

A certificate is not a standing authority to restrain someone until treatment can be given. Section 47 does not authorise force or detention unless it is immediately necessary, and then only for as long as necessary in the circumstances. It also cannot be used to place someone in hospital for treatment of mental disorder against their will.

Resistance also deserves clinical assessment, not just a legal response. A patient pulling their arm away from a cannula may be frightened, in pain, overwhelmed, delirious or unable to understand what staff are doing. Their behaviour may also be telling you that their condition has changed. The Mental Welfare Commission for Scotland's current guidance specifically addresses the additional complexity of delivering physical healthcare when a person lacks capacity and refuses or resists treatment.

For a student nurse, this is a point to stop and involve the registered nurse or responsible clinician rather than assuming that the words “Section 47” settle the issue. If treatment for mental disorder is being considered, different provisions under the Mental Health (Care and Treatment) (Scotland) Act 2003 may also be relevant.

Back to the patient

The patient receives treatment while delirious under an appropriate Section 47 certificate and treatment plan. Two days later, you go in with the registered nurse before the next dose. The patient is alert. They remember why they are in hospital, can explain what the antibiotic is for and ask sensible questions about the treatment.

The certificate is still in date.

But that is not the end of the assessment.

Section 47 is based on the adult being incapable in relation to the treatment decision. The Act allows a certificate to be revoked and replaced when circumstances change, and the Code of Practice emphasises regular review of capacity. A patient whose delirium is resolving may now be able to make the decision that they could not make two days ago.

Your job as a student is not to declare the certificate invalid. Your job is to notice the change and say something: “They seem much clearer today. Do we need to review their capacity to consent before we continue?”

That question shows that you understand Section 47 better than simply checking whether a form is filed in the notes.

What to take onto placement

When you see a Section 47 certificate, connect it back to the decision it is there to support. Check, with your supervising registered professional, what treatment or treatment plan it covers, whether it is current and whether anything about the patient's capacity, condition or proposed treatment has changed. Find out whether there is a welfare proxy with relevant powers. Most importantly, keep involving the patient.

The certificate provides legal authority in defined circumstances. It does not turn a person into a passive recipient of care, remove the principles of the Act or make every future treatment decision for them.

References

• Adults with Incapacity (Scotland) Act 2000, asp 4, Part 5, s.47. Available at: legislation.gov.uk.
• Scottish Government (2010) Adults with Incapacity (Scotland) Act 2000: Code of Practice, Third Edition, for practitioners authorised to carry out medical treatment or research under Part 5 of the Act. Available at: gov.scot.
• Scottish Government (2021) Section 47 certificate of incapacity. Available at: gov.scot.
• Scottish Government (2008) Adults with incapacity: guide to assessing capacity. Available at: gov.scot.
• Mental Welfare Commission for Scotland (2025) Treatment under section 47 of the Adults with Incapacity Act: overview and guidance. Reviewed Spring 2025. Available at: mwcscot.org.uk.
• Mental Welfare Commission for Scotland (2025) Right to treat: delivering physical healthcare. Available at: mwcscot.org.uk.