Part 16

Medical treatment

Safeguards for certain surgical operations etc.

Treatment mentioned in section 234(2): patients incapable of consenting
236
1
Medical treatment mentioned in section 234(2) of this Act is given to a patient in accordance with this section if—
a
the requirements set out in subsections (2) to (4) below are satisfied; and
b
the patient does not resist or object to the treatment.
2
Subject to subsection (6) below, the first requirement is that a designated medical practitioner who is not the patient’s responsible medical officer certifies in writing that—
a
the patient is incapable of consenting to the treatment;
b
the patient does not object to the treatment; and
c
having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient’s condition, it is in the patient’s best interests that the treatment should be given to the patient.
3
The second requirement is that two persons (not being medical practitioners) appointed by the Commission for the purposes of this subsection certify in writing that—
a
the patient is incapable of consenting to the treatment; and
b
the patient does not object to the treatment.
4
The third requirement is that on the application of the patient’s responsible medical officer, the Court of Session has made an order declaring that the treatment may lawfully be given.
5
The Court of Session may make an order such as is mentioned in subsection (4) above only if it is satisfied that—
a
having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient’s condition, it is in the patient’s best interests that the treatment should be given to the patient; and
b
the patient does not object to the treatment.
6
Where the patient is a child, the first requirement is that the matters mentioned in paragraphs (a) to (c) of subsection (2) above are certified—
a
where the patient’s responsible medical officer is a child specialist, by a medical practitioner approved for the purposes of this subsection by the Commission;
b
where the patient’s responsible medical officer is not a child specialist, by a child specialist who is on the list maintained under section 233(1) of this Act.
7
References in subsections (2), (4) and (6) above to a patient’s responsible medical officer include, in any case where a patient does not have a responsible medical officer, references to the medical practitioner primarily responsible for treating the patient.