the 2003 Act must be taken. Staff should adopt appropriate statutory measures even if seclusion is consistent with an advance statement. 24 Adults with Incapacity (Scotland) Act 2000 (The 2000 Act) The Adults with Incapacity (Scotland) Act 2000 deals with powers of attorney and guardianship as forms of proxy decision-making. In the former, the person is appointed by an adult whilst having capacity and it is anticipatory. In the latter, someone is appointed by the court after the individual is assessed as lacking capacity. In a community setting, any form of seclusion imposed on individuals should be legally authorised. The 2003 Act cannot be used to sanction physical or environmental restraint in the community. Therefore, if it is foreseen that it may be necessary to use a form of environmental restriction such as seclusion beyond dealing with an initial emergency in a community setting, and the individual lacks capacity, an application for welfare guardianship under the 2000 Act should be considered. Part five of the 2000 Act defines medical treatment as “any healthcare procedure designed to promote or safeguard the physical or mental health of the adult”. Considering treatment from this perspective, the Court of Appeal in England is of the view that use of seclusion could constitute medical treatment. 25 Under the 2000 Act, part five, the medical practitioner (or sometimes another healthcare professional) certifies incapacity in relation to the medical treatment in question. A “section 47 certificate” authorises the practitioner or others under his or her direction to provide reasonable interventions related to the treatment authorised. The authority is limited in a number of ways. Most importantly, it does not authorise force, unless immediately necessary and only for as long as is necessary. However, part six of the 2000 Act allows for intervention orders and welfare guardianship. Both could be used to authorise a restrictive intervention although the Act and Codes of Practice do not provide much guidance on why and how this power would be sought and used. Welfare guardianship might be more suited to a foreseeable series of restrictive interventions, e.g. use of restraint, seclusion or similar environmental restrictions where the adult resists treatment. Part one of the 2000 Act outlines the principles that govern any intervention and are especially relevant in the use of seclusion: • • • • • Benefit to the adult; Least restriction of freedom; Account taken of adult’s past and present wishes; Consultation with others where reasonable and practicable; Encourage use of existing skills/development of new skills. Mental Health (Care and Treatment)(Scotland) Act 2003 Code of Practice Volume 1 p96/97 R (on the application of Colonel Munjaz) v Mersey Care NHS Trust and (i) Secretary of State for Health and (ii) MIND; S v Airdale NHS Trust and (i) Secretary of State for Health and (ii) MIND [2003] EWCA Civ 1036 24 25 22