Commentary on Sections Patients incapable of consenting
436.Section 236 sets out the conditions that must be met before neurosurgery for mental disorder or other treatments specified in regulations under section 234 can be given to patients who are incapable of consenting.
437.The effect of subsections (1) and (2) is as follows. A patient who opposes the treatment, either by stating an objection or by resisting treatment, may not be given such treatment. Where a patient does not resist or object to receiving the treatment, but is unable to consent, a designated medical practitioner must certify that this is the case and that the treatment is in the patient’s best interests. Two lay persons appointed by the Commission must certify in writing that the patient is incapable of consenting and that the patient does not object to the treatment. In addition, the responsible medical officer must apply to the Court of Session for an order authorising the treatment specified. The Court of Session may authorise the treatment only if satisfied that, having regard to the likelihood of the treatment alleviating, or preventing a deterioration in, the patient’s condition, it is in the best interests of the patient, and the patient does not object to the treatment.
438.If the patient is aged under 16, subsection (6) sets out special rules which must be complied with in relation to the certification under subsection (2).