Joint Committee on the Draft Mental Incapacity Bill Written Evidence

118.Memorandum from Alzheimer Scotland (MIB 968)


  1.1  Alzheimer Scotland is Scotland's leading national voluntary organisation, which supports people with dementia and their families/carers through campaigning activities and service provision. Our membership comprises individual carers, people with dementia, professionals, provider organisations; and corporate bodies such as the Royal Colleges. We consult widely with our membership on key public policy developments and draw on the expertise of our interdisciplinary Rights and Legal Protection Committee to inform our responses in this area.

  1.2  Our interest in submitting evidence is to share our experience of campaigning for the Adults with Incapacity (Scotland) Act 2000 and the emerging lessons from implementation in relation to the proposals in the draft Bill. Our campaign for legal reforms began in the mid 1980s and grew in the mid 1990s with a series of publications,1 conferences and recommendations to the then Scottish Office. Following the publication of the Scottish Law Commission's draft Incapacity Bill in 1991, we were funded by the Chief Medical Officer to carry out a feasibility study to identify the volume and range of cases of older people with dementia that might require legal intervention, each year (key finding 16.4 per cent intractable cases with no legal solution)2. In 1997 we co-ordinated the "Right to Decide" campaign for the promotion of the Adults with Incapacity Bill. Following the passage of the Act, we successfully bid (in partnership with others) for three Scottish Executive commissions: to draft Codes of Practice 2 and 6 (1999); to organise four major national training events at the launch of the Act (2001), and to monitor and research the implementation of Parts 2, 3 and 6 of the Act (to be completed by September 2004).


  2.1  People with dementia are the largest group to benefit from the Adults with Incapacity (Scotland) Act 2000, which provides a comprehensive legal framework for decision-making in relation to the welfare, health and finances of people with mental incapacity. The ability of people with dementia to make decisions diminishes over time as the illness progresses and others gradually have to take over making decisions. The new legislation, in defining incapacity as decision specific, recognises the rights: of adults with incapacity to be as fully involved in decision-making as possible; of carers to be consulted by health and social work professionals; and for carers to become legally appointed proxies. People with dementia are very vulnerable to undue pressure and mistreatment, and the Act incorporates robust measures to guard against such abuse.

  2.2  We believe that the Scottish Act is fundamentally sound and is proving to be successful, especially for people with dementia and their carers who represent over 50% of users of the Act.3 However, like all new legislation, the Act is not perfect. Carers and professionals have drawn our attention to specific areas in which improvements might be made to policy and practice.

  2.3  It is also evident that there are sometimes misunderstandings about requirements of the Act, especially by medical practitioners, and that mistakes are being made because professionals across the disciplines are on a steep learning curve. This is indicative of the need for rigorous and extensive awareness raising and training programme. We have welcomed the commitment of the Scottish Executive to address issues arising and do not consider that they detract substantially from the achievements of the Act.

  2.4  Whilst we applaud the intentions of the proposed legislation, which is long overdue, and consider that there is merit in some of its proposals, we have major concerns that it may not be "fit for purpose", particularly in providing protection for those it is intended to benefit. The comments below relate to the specific questions asked by the scrutiny committee. Accustomed as we are to the Scottish legislation we prefer to refer to the subject of the legislation as the "adult" rather than "P".


  3.1  Are the objectives of the draft Bill clear and appropriate?

  Largely yes but a clear statement that the legislation is intended to enhance the rights and protection of those with an inability to make some or all decisions for themselves in Part 1 of the Bill an explanatory note is essential to reassure service users.

  3.2  Does the draft Bill meet these objectives adequately?

  To some extent yes. In particular, the provisions for Lasting Powers of Attorney allow people to plan for future incapacity are very similar to the Continuing and Welfare Powers of Attorney in the Scottish Act. Our experience is that these are working well and are especially valued by those with an early diagnosis of dementia, because they are enabled to make advance decisions about who should make decisions on their behalf when they become less capable; and because the use of these powers will reduce the need for more invasive interventions at a later stage.

  However, we consider that the "General authority to act" as expressed in the draft Bill, is not compatible with the "decision specific" concept of incapacity. It creates a tension between the objective to facilitate decision making for carers and the objective to enhance involvement in decision-making by the adult. The inclusion of Section 1, clause 2 of the Adults with Incapacity (Scotland) Act 2000 would strengthen the protection for adults with impaired capacity in the early clauses of the draft Bill:

        "There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention".

        Recommendation: if the "general authority to act" is to be pursued, it should exclude the entitlement to make major decisions such as: medical, research, change of residence, the sale of a house, the management of finances over a specified amount.

  3.3  Might lessons be learnt from similar legislation already implemented in Scotland or elsewhere?

    3.3.1  We believe that the Adults with Incapacity (Scotland) Act 2000 provides a good model and note with surprise that so little reference has been made to it or the earlier Scottish Law Commissions' recommendation, throughout the process of developing the legislation in England. That the two different but similar pieces of legislation will run on parallel lines is likely to create confusion for carers and service users, and give rise to cross-border issues, some of which are already emerging for supervisory bodies in Scotland where the appointee or adult live south of the Border. It will be especially important for the forthcoming legislation to be compatible with the Adults with Incapacity (Scotland) Act 2000 in relation to the assessment and certification of incapacity. In addition to conforming with human rights legislation, which we believe the Adults with Incapacity (Scotland) Act 2000 does, consistency will also assist issues arising in relation to banking law and the Inland Revenue where problems are already emerging.

        Recommendation: to provide clarification on cross-border issues between the Adults with Incapacity (Scotland) 2000 Act and the new Mental Incapacity legislation, and cross refer where relevant.

    3.3.2  The value of the five general principles on the face of the Adults with Incapacity (Scotland) Act 20004 as opposed to the checklist to support the single "best interest" principle (Part 1 s4).

        We note that the draft Bill has recast the over-arching principles that are on the face of the Adults with Incapacity (Scotland) Act 2000 and downgraded them to the status of a "checklist" of factors to be considered in deciding what is in an adults best interests. In the Scottish Act, the agreed principles are enshrined in law and must be adhered to no matter what type of intervention is prescribed or powers authorised by the sheriff (Part 1 s1) (with the exception of the fifth principle and there is no reason why this should not also be legally binding.)

        Recommendation: that the "Best Interest" principle and checklist are replaced with the principles on the face of the Adults with Incapacity (Scotland) Act 2000.

    3.3.3  Problems with "General authority to act" (Part 1 s6 and 7)

        The draft Bill makes it "lawful" for anybody providing care to act when it is "reasonable to believe that the person lacks capacity" in relation to the matter in question, or to act "reasonably" in an adult's best interests. This is a fundamentally different concept from the Adults with Incapacity (Scotland) Act 2000, which is about the appointment of a representative to make decisions on behalf of an individual. We have major difficulties with the concept that anyone claiming to provide care, can have this authority over another person. The draft Bill lacks a definition of "care" and leaves the adult, particularly where he/she is living alone, vulnerable to abuse. We can foresee conflicts over who has the "higher" authority to make decisions; and over the interpretation of what is "reasonable". For example there may be conflicts between family members; between carers/professionals; between the adult/carer/professional, as to what is in the adult's "best interests". The term "best interests" also has connotations of paternalism whilst the principle of "benefit of the adult" in relation to specific decisions is less likely to lead to a conflict of interests.

        We also question whether financial institutions will co-operate where an individual carer is acting under a "general authority to act", as there could be any number of such persons claiming to care for the adult. We therefore conclude that the concept and general authority to act as currently expressed in the draft Bill is fundamentally flawed.

        If the Adults with Incapacity (Scotland) Act 2000, there is a "general authority" which is specific to the provision and authorisation of medical treatment by a medical practitioner, and then only after an assessment of capacity of the patient to give informed consent to treatment. The Act allows for a medical treatment plan to be drawn up which recognises that the patient may be able to give informed consent to certain treatments, but will lack the capacity to understand and consent to other necessary treatments. We believe that Part 5 of the Adults with Incapacity (Scotland) Act 2000 provides a sound basis for medical decision-making and endorses best practice, although it may be possible to achieve some improvements without jeopardising the right of the individual (see Annex 3 Submission on Scottish Executive consultation on Part 5 of the Adults with Incapacity (Scotland) Act 2000, June 2003).

    3.3.4  The Scottish legislation provides formal arrangements for assessing capacity and for certificating and recording, monitoring and reviewing, assessment of capacity. It also makes provisions for the adult or anyone with an interest to challenge an assessment of incapacity. We believe such provisions are essential for compatibility under the human rights legislation.

        In the draft Bill, the "general authority" allows anybody providing care to assess the capacity of the adult "in relation to the matter in question" and to act in "all the circumstances it is reasonable for the person to do the act". Again we stress that this gives the individual a great deal of power over the adult, without the provision of checks and balances.

        Recommendation: formal measures for assessing capacity similar to those in the Adults with Incapacity (Scotland) Act 2000 should be built into the proposed legislation and not left to codes of practice.

    3.3.5  Adults with Incapacity (Scotland) Act 2000 has robust mechanisms for monitoring, supervision and investigation.

        The draft Bill has no mechanism for monitoring or supervising the use of the general authority to act nor for investigating suspected abuse. Under the Scottish Act the Office of the Public Guardian has the following function: to register all interventions; and to monitor, supervise and investigate financial interventions. Local authorities and the Mental Welfare Commission have powers to supervise, monitor and investigate welfare interventions. Published reports from the OPG provide evidence that this system is working well. The Act has been criticised for being over zealous in a bid to reduce the risk of abuse, subjecting genuine carers to more regulation and bureaucracy than necessary. We believe that there is room, on the basis of a risk assessment, for allowing the courts and supervisory bodies wider discretion in specific circumstances.

        Recommendation: inclusion of a robust system of supervision and investigation in the proposed legislation.

    3.3.6  How the Adults with Incapacity (Scotland) Act 2000 meets the principle of proportionality.

        The principle of proportionality is not evident in the draft Bill.

        The second principle in Part 1 of the Scottish Act is that any intervention must be for the benefit of the adult and the least intervention necessary of the achievement of that benefit, which cannot be met in any other way. This "least restrictive" principle is a fundamental to test of whether the rights of the adult are observed. It means that the legislation must provide a range of measures that allow for varying degrees of intervention, tailored to the needs of the individual. How the Act can operate in this way is illustrated by the following examples:

      (a)  Welfare powers of attorney are only valid whilst the person lacks capacity to carry out a specific decision, this takes account of fluctuating capacity.

      (b)  Financial, welfare or joint guardianship powers applied for and granted must take account of the general principles and be tailored to meet the needs of an individual now and in the foreseeable future. There is a statutory period for review, which can be flexible depending on circumstances, eg shorter if the person has an acquired head injury and is expected to recover; longer where the person has dementia.

      (c)  Range of financial interventions: where a couple have a joint "either or survivor" account, its operation by one partner can continue if the other is unable to give informed consent (previously such accounts were frozen); where a family simply needs to manage the day to day finances of the adult, an application to Intromit with funds can be made to the Office of the Public Guardian to allow the opening of a "designated" account; where a one-off decision is required for the sale of a house or signing of a tenancy agreement then an intervention order may be applied for; where financial management is complex then application for financial guardianship will be appropriate.

        Recommendation: to consider how issue of proportionality is to be addressed in terms of provisions under the new legislation.

    3.3.7  The Adults with Incapacity (Scotland) Act 2000 enables the appointment of a proxy or proxies for as long as required by the adult.

        The financial and welfare guardianship provisions under the Adults with Incapacity (Scotland) Act 2000 were framed in a flexible way to meet the medium to long-term needs of adults with incapacity ie for those recovering from an acquired head injury to those with severe dementia; and with fluctuating capacity.

        We are concerned that the emphasis on minimum intervention, in terms of the court making a one-off decision or the appointment of a deputy for as short a period as possible, will lead to multiple applications, especially where the adult's decision-making capacity is unlikely to improve eg those with moderate/severe dementia. Legally appointed proxies need to be able to make timely decisions without recourse to the courts. We consider the appointment of a guardian or guardians, to be a more "person-centred" solution.

        Recommendation: the Committee to reconsider the role of the court and role of deputy.

    3.3.8  Mechanisms in Scotland for dealing with conflicts of interest before recourse to legal interventions.

        The Adults with Incapacity (Scotland) Act 2000 offers an effective means of resolving conflicts where all else has failed. The key mechanism for considering whether an intervention under the Act is needed is the new Single Shared Assessment and review system introduced under the Community Care and Health (Scotland) Act 2002. Scottish local authorities report that an advantage of both Acts has been to simulate an improvement in inter-disciplinary assessment and care planning. The Explanatory Notes accompanying the Draft Bill suggest that a local Vulnerable Adults Committee might be approached to help resolve such conflicts and avoid recourse to use of the court. This may serve only to undermine rather than strengthen the inter-disciplinary assessment process.

        Recommendation: to strengthen the inter-agency case review process, including the position of the carer and service user (with the support of an independent advocate where necessary).


  4.1  Appeal provision for the adult or anyone with an interest in supporting the adult.

  4.2  General authority to treat see paragraph 3.3.3 of this submission and Part 5 of the Scottish Act.

  4.3  Authority for Research5 (see Part 5 of the Adults with Incapacity (Scotland) Act 2000).

  4.4  Advocacy. The lack of reference to the role of non-legal advocates on the face of the Scottish Act has led to confusion, particularly amongst sheriffs. People with dementia often need someone who knows them well to act as an advocate to help support them in communicating their views and wishes. But some Sheriffs have refused to admit or to hear non-legal advocates and have insisted on the appointment of a court appointed "safeguarder" or curator, who will not know the adult and is unlikely to have the appropriate communication skills (each appointment costs the public purse about £1,000). We are pleased that the right of access to an independent advocate has been included on the face of the new Mental Health (Care and Treatment) (Scotland) Act 2003, but are concerned that adults with incapacity may receive lower priority.

  4.5  Legal Aid. The implications for Legal Aid are not discussed in the draft Bill or Explanatory Notes. The lack of automatic entitlement to legal aid by private individuals (other than the adult) seeking to making application for welfare guardianship under the Incapacity (Scotland) Act 2000, has been a great concern to carers who have been shocked to find that they have to pay legal costs to ensure that the needs of the person they care for are properly met. The fear of legal costs may deter applications and thus creating a barrier to access to justice for some vulnerable adults.

  Recommendation: inclusion of Advocacy on the face of the Mental Incapacity Bill.

  4.6  Lack of proper legal framework for management of residents' funds by care homes, hospitals (see pt 4 of Adults with Incapacity (Scotland) Act7 to be implemented on 1 October 2003.


  5.1  Proposed title of the Act. Recommendation: removal of the word "Mental" and change to either: Capacity Act or Incapacity Act.

  5.2  Alzheimer Scotland welcomes the proposal for a new Court of Protection, which will develop a body of expertise and be more user friendly. We will continue to press for a similar system in Scotland for users of the Adults with Incapacity (Scotland) Act 2000.

August 2003

Annex 1


  1.  Scottish Action on Dementia (1988) Dementia and the Law—the Challenge Ahead.

       Scottish Action on Dementia (1987) Dementia: Medical Treatment and Research.

       Scottish Action on Dementia (1987) Dementia and Guardianship.

       Submissions in response to the Scottish Law Commission's Report on Incapable Adults (1991) Scottish Office: Recommendations for the Management of Welfare and financial decisions for Incapable Adults (1996).

  2.  Scottish Action on Dementia & Glasgow University (1993) Feasibility Study into Mental Health Hearings for Older People with Dementia.

  3.  Office of the Public Guardian, Annual Report 2003 and Mental Welfare Commission unpublished statistics, 2003.

  4.  Adults with Incapacity (Scotland) Act 2000, Part 1 General Principles and fundamental definitions.

  5.  Adults with Incapacity (Scotland) Act Part 5 s51 Authority for Research.

  6.  Mental Health (Care and Treatment) (Scotland) Act 2003 Chapter 2, s259-261.

  7.  Adults with Incapacity Act Part 4, Management of Residents' Finances.

Annex 2


Response to Scottish Executive's consultation on Adults with Incapacity (Scotland) Act 2000



  Alzheimer Scotland is Scotland's leading national charity that aims to represent the interests of people with dementia and their carers. Dementia is an umbrella term for a number of complex degenerative neurological conditions of which Alzheimer's disease and vascular dementia are the most common. It means that whilst people with dementia in the early stages of the illness are able to maintain control of their lives, over time the ability to manage finances and make welfare and medical decisions is lost and others need to gradually take on the task of making decisions for them. People with dementia are the largest group (currently an estimated 61,000) most likely to benefit from the Adults with Incapacity (Scotland) Act 2000 and Alzheimer Scotland is committed to ensuring that the Act is implemented as intended. We therefore welcome the opportunity to respond to this consultation paper.

  We have consulted widely within our membership including branches, carers groups, and our two interdisciplinary expert committees, the NHS and Community Care Committee and Rights and Legal Protection Committee. We placed our briefing and consultation questionnaire on the Alzheimer Scotland—Action on Dementia Website. Altogether 40 responses have been received and these have helped to inform our submission.


  2.1  The Act enhances the rights of very vulnerable people in a number of ways. These include reducing the risk that they are disadvantaged because of their incapacities in receiving appropriate care and fair treatment. We consider that general medical practitioners have an extremely important role in the course of treating people with dementia, mental illness and those with other disabilities that come under the Act. It is therefore disappointing that some feel unable to embrace their new responsibilities. The needs of people with dementia and other people with diminished capacity have been undervalued for years and the Act helps to address this. The Act enhances the status of carers and aims to empower adults with incapacity. It is consistent with the broader policy intention of the Scottish Executive for patient involvement and the recognition of carers as partners in care. This requires a considerable cultural shift for many members of the medical profession; it may be that some of the opposition to Part 5 arises from a fearfulness about authority being given to others in the area of decision-making.

  2.2  Alzheimer Scotland recognises that the effective implementation of the Act does have significant workload implications for all the professionals who have duties under the Act. However, the Act, which exists to protect the most vulnerable, should not be compromised to resolve what we perceive to be issues concerned with information, training and the establishment of efficient administrative systems. There was no proper assessment of the training needs of the medical profession prior to the introduction of the Act and training opportunities were limited. Training issues should be addressed with some urgency, as we believe this will make a significant contribution to the resolution of the work management problems recourse to changes in the Act.

  Where changes to the Act will benefit both the adult and the doctor they should of course be considered and this response identifies where such improvements may be possible.


  3.1  We would like to register our concerns about the nature of the consultation exercise. Firstly, because consultation and research into Part 5 is being conducted in isolation from the research on the implementation of the rest of the Act. This has major disadvantages as the Act was welcomed for its integrated and holistic approach to decision making. In addition, the focus on Part 5 in this consultation is limited to its interaction with the medical profession and risks reinforcing a narrow view of the Act.

  3.2  We consider that consulting after only nine months of implementation is premature, it would have been preferable for the Scottish Executive stick to the original plan to consult after the twelve month period of operation—a more reasonable test. However, we understand that the consultation was brought forward in response to pressure from the BMA and some doctors who were refusing to comply with the Act. Refusal to comply is continuing in many practices despite the consultation. A possible consequence is that some people with early stage dementia may not be advised of measures, such as the appointment of a welfare power of attorney with medical decision making powers, that would aid decision-making at a later stage.

  3.3  We are concerned that the consultation does not represent an independent review, but reflects only the issues raised by one section of the medical profession and may therefore be considered unbalanced. It is framed almost entirely on the basis of the proposals advanced by the BMA.

  3.4  Some of the concerns raised by the BMA in the consultation are not well informed. For example, it is misleading and inaccurate for doctors to suggest that an assessment of capacity is required every time an aspirin needs to be prescribed, and to omit any reference in the consultation paper to the Medical Treatment Plan. The Medical Treatment Plan, provided in the Code of Practice, was devised precisely to address such management concerns. The Medical Treatment Plan also respects the principles of the Act in terms of (a) involving the patient as far as possible in treatment decisions (b) minimum intervention ie avoiding the need for additional assessments.

  3.5  The consultation paper fails to question the information and training needs of GPs and other doctors, and any assessment of how far these have been met. Training opportunities have been limited and it is our belief that many of the workload concerns of GPs would be addressed were they to have received timely information and training about the Act and simple guidelines about what they are expected to do. Our experience from input to postgraduate training for GPs is that the general leaflet and video are felt by GPs to be inadequate and don't provide the detailed advice they are seeking about assessing capacity.

  3.6  We recommend that the remit for the research programme should include an investigation into the exact nature and extent of the issues raised by doctors.

  3.7  We seek reassurance that the findings from the Part 5 research programme will be considered alongside the recommendations for improvements that may emerge in relation to the implementation of other parts of the Act, before any proposed changes might be taken forward for the Code and/or the Act. We are concerned that there is a limit to the number of times the mechanism of a miscellaneous amendments bill or regulations can be used in respect of existing legislation. We are concerned about how the responses to the consultation will be weighted and evaluated. We seek reassurance that any changes taken forward will adhere to the principles of the Act, and will be for the benefit of the adult as well as the doctor.

  Our response to the specific questions for consultation is set out in the table below.


  3.8  Proposals for change to the Part 5 Code of Practice

  3.9  Point 1

  Would it be possible to have a variable assessment procedure, which reflected the scope and degree of the intervention or treatment proposed? If so, suggestions on how the Code might be amended would be welcome.

  3.9.1  Response

  The Code already allows for this flexibility; it does not prescribe how the assessment is to be carried out, so we don't consider that an amendment to the Code is necessary. The guidance suggests that the assessment procedure will depend on the nature and complexity of the decision to be made and the extent of the incapacity of the adult. However, consultation with others closely involved with the adult's care is required where reasonable and possible. The section in the Code on the Use of Treatment Plans (2.19-2.24) is excellent and aims to reduce the assessment task where there are multiple treatments. The Code advises on the involvement of specialist therapists and others as appropriate. However extensive multidisciplinary assessment will only be needed for a minority of patients. For the majority of adults with incapacity, the general practitioner may not need to carry out an extensive assessment.

  The section Taking Account of the Wishes of the Adult (paragraphs 2.27-2.31) is especially important: "The medical practitioner must take account of the past and present wishes and feelings of the adult in so far as they can be ascertained by any means of communication. This is an unqualified obligation".

  3.10  There seems to be a fear that, for example, everyone with dementia in a care home will need to have their capacity assessed before they can be treated. We do not believe this to be the case. In our experience, many people are often assumed to lack capacity because of their diagnosis eg dementia, or learning disability. The Code rightly points out that incapacity must not be equated with inability to give informed consent. We know that with the use of good communication and listening skills, many people with incapacity will be able to consent to regular treatments, and particularly those with which they are familiar. Often consent will be by non-verbal communication and the Code of Practice gives helpful guidance on this. Communicating with adults with incapacity does take time but this should be a matter of normal good practice.

  3.11  Point 2

  The Section 47 certificate states that the examination has "to-day" been carried out, thus potentially diminishing the relevance of earlier, and possibly still valid assessments. The BMA therefore propose that "to-day examined" be dropped from the certificate and replaced by eg "based on my considered opinion . . ." This would allow still current assessments and other relevant information to inform the certification process. This could be achieved by subordinate legislation. Views are invited on this change.

  3.11.1  Response

  It has been suggested earlier that assessments may be considered less valid if the certificate has to state that the examination has "to-day" been carried out. There is no reason to suppose that this is the case. Such assessments might contribute to informing the doctor's judgement. Since the examination is in relation to a treatment decision, if "to-day" is removed there may be a danger of making treatment decisions without having seen the patient, possibly for some time, and of not communicating with the patient about the new treatment. However, we would not be opposed to the doctor completing a certificate that states he/she has carried out an assessment and examination within the past seven days, with "assessment" being understood to include evaluating other evidence beyond the immediate examination of the patient.

  Again, this is where the Medical Treatment Plan is helpful.

  3.12  Point 3

  The Code of Practice states, at paragraph 2.25, that a certificate of incapacity under section 47 is needed even where a proxy exists. What are your views on this point and has this requirement had an adverse impact on services to patients?

  3.12.1  Response

  There may be specific circumstances where an assessment of capacity on an annual basis may not be appropriate, for example: where a proxy exists for an adult with severe dementia who is clearly not going to regain capacity to give informed consent to any treatment decisions. In such circumstances the adult may benefit from the removal of the necessity to have their capacity reassessed (ie principle of minimum intervention for the benefit of the adult).

  Where the appointee is a welfare guardian with medical decision-making powers, the court will have required two medical certificates of incapacity, and the appointee will have been deemed a "suitable person." This could be considered sufficient in such circumstances.

  Where an attorney has been appointed with powers to make medical decisions, a medical certificate is not required unless specified by the grantor. Whist the attorney must abide by the principles of the Act there is a low level of protection in such circumstances. An additional safeguard might be the requirement for an assessment of incapacity, lasting in the first instance for one year, with no further requirement for assessments of capacity thereafter. If the doctor or anyone else has misgivings about the motivation of the proxy with regard to a specific treatment decision i.e. a refusal to consent, this would be open to challenge and the dispute procedure put into operation.

  The proxy has the duty to act on behalf of the patient and in accordance with the principles of the Act, and there are potential sanctions if a proxy does not act properly. In all other parts of the Act a proxy is empowered to make decisions on behalf of the Adult. The opportunities for appeal, complaint and investigation provide adequate safeguards. Therefore, with the above exceptions, we do not consider it necessary for there to be a certificate of incapacity under section 47 where there is a legally appointed proxy.

  We have heard of two cases where, because the GPs concerned have refused to comply with the legislation, there has been a delay for the patient in receiving dental treatment. In each case the carer had appropriate powers of attorney and believed they had the legal authority to consent to the proposed treatment. They were very frustrated at having to return to the doctor who then required a letter from the dentist about the treatment required which added to the delay.

  3.13  Point 4

  Are there any other ways in which changes to the Part 5 of Code may help streamline the operation of the Act, without encroaching on the principles of the Act?

    3.13.1  Response

  The Code provides little advice on the establishment of an infrastructure within the areas of the NHS with responsibility for the operation of Part 5. This has given rise to a range of problems that impact on the efficient implementation of other parts of the Act as well as Part 5. Problems raised are:

    —  lack of a lead to provide management and overview of the system and quality assurance in acute and long-stay hospitals, for example, we have received reports of excellent information, training and implementation in one hospital ward, but a complete lack in the ward next door;

    —  doctors not knowing where to find certificates and not understanding the difference between them; lack of management and overview of the system in health centres and GPs' surgeries;

    —  certificates not accompanying patients on admission to care homes or hospital, leading to duplication of work for doctors and potentially putting the patient though further unnecessary assessments;

    —  lack of systems to flag up when certificates need to renewed.

  Health Boards should therefore be required to set up and resource an appropriate infrastructure to include a system for the renewal of certificates and to ensure that that appropriate certificate accompanies the patient.

  The Code of Practice should make it clear that doctors cannot charge for certificates of incapacity under Part 5 of the Act.

  3.14  BMA and SGPC suggestions for amendment of Part 5 of the Act

  3.15  Point 5

  The duration of a certificate is limited to one year. The upper limit was set when legislation was going through the Scottish Parliament and was increased from the initial period of three months. It is suggested that the upper limit should be raised from one year to three years. This would be consistent with other parts of the Act, and would be appropriate, eg where some long-term conditions were concerned, in which there was little or no prospect of capacity being regained. Views are invited on this proposal.

  3.15.1  Response

  There may be room for extending the time for renewing certificates of incapacity in certain circumstances with qualifications in relation to certain treatments, and that a second medical opinion should be sought in such circumstances. However to increase the upper limit from one year to three years as the norm would incur the risk that those with fluctuating capacity or who may improve might have their rights jeopardised. There was a suggestion, amongst our responses, that the upper limit should be no more than two years.

  3.16  Point 6

  Views are invited on whether more flexibility should be given in Part 5 of the Act to allow other health professionals, other than doctors, to sign the certificate of incapacity, including eg dentists and opticians. If so, which health professionals should be allowed to sign and why would this be appropriate in relation to incapacity to decide treatment, when all other certificates and reports under the Act require to be signed by medical practitioners.

  3.16.1  Response

  It is perfectly reasonable to expect that the doctor with primary responsibility for the treatment should sign the certificate, having first consulted with others as appropriate.

  The Code allows for circumstances in hospitals where that doctor might not be immediately available. However, the code could be clearer on the issue.

  In terms of general authority to treat, the doctor primarily responsible, usually be the GP, will have the medical treatment record, will be able to draw on what has or has not been acceptable to the patient in the past, and will have a rapport with the patient.

  However, there is a case for allowing others, such as clinical psychologists and mental health nurses, with specialist training in communication skills and assessing capacity, to take a lead in certain cases and have authority to sign the certificate.

  There are implications to be considered for the introduction of nurse prescribing. Designated nurses would need to be trained in assessing capacity if they are to have the authority to sign a certificate.

  The issue of whether a dentist should be able to sign a certificate is not straightforward. As the Code states, the doctor does not need to understand the dental treatment proposed, but only whether the patient is capable of consenting to invasive dental treatment (more than just oral hygiene which is included in the definition of fundamental health care). Dental treatment can be included in the Medical Treatment Plan. In our responses we received a lot of opposition to the idea of the dentist assessing capacity, because the dentist is visited much less frequently and is not felt to know the patient. We have received reports of poor practice by dentists because of a lack of understanding of dementia and how to best to communicate.

  We received some support for another approach, which would be for the provision of short courses on assessing capacity. Specified qualified health care professionals who have attained the certificate would then have authority to sign a certificate of incapacity. It was also considered important that the issue of assessing capacity should be a compulsory part of undergraduate and post graduate training for doctors.

  If authority to sign certificates of capacity is to be extended to other health care professionals consideration will need to be given to the issue of access to other relevant information and assessments that may be held in the patient's file by the doctor. The disadvantages of having a plethora of health professionals are that: it could lead to unnecessary multiple assessments; conflicting outcomes; the lack of an integrated medical treatment plan which the doctor primarily responsible should manage; he/she would still have the job of ensuring co-ordination and consistency.

  3.17 Point 7

    3.17.1  The BMA proposes that the definition of medical treatment is too broad and potentially precludes the access of the incapacitated adults to routine treatment without formal assessment and certification under Section 47. Would it therefore be possible to refine the definition to exclude certain forms of treatment eg general care such as oral hygiene, nursing care, blood pressure recording, thus simplifying the assessment and certification process? If so how might this be achieved?

  We are fundamentally opposed to the redefinition of medical treatment and fully support the existing legislation.

  The Act and Code of Practice (2.26.2) state that "Treatment without legal authority is not an option". During the legislative process considerable attention was given to the definition of treatment and a consensus was reached only after lengthy negotiation to ensure maximum protection for the promotion of the mental and physical health of the Adult.

  The Act defines fundamental health care as medical treatment, and whether the adult is able to give informed consent to this can be considered within the Medical Treatment Plan. There should be no fear of threat that the adult may be potentially precluded from accessing routine treatment because of the requirements of the Act. We therefore consider it unwise to consider reducing the scope of the definition of medical treatment. Certification simply provides evidence that good practice has been followed and should not be time consuming.

  We consider that to exclude certain forms of treatment would be contrary to the human rights principles upon which the Act is based and would serve to endorse bad practice. The consequences would be to erode the rights of the adult and of any proxy. If treatment of the adult goes ahead out-with the legislation then:

    —  the necessity to communicate with the patient about the treatment decision is precluded;

    —  the protections afforded under the Act with regard to the use of restraints, whether this be the use of covert medication or the use of physical restraint to give an influenza vaccination or take the adult's blood pressure, would be significantly reduced;

    —  to assume incapacity for general treatments and to remove the requirement for an assessment and certificate would be to disregard the rights of appeal by the adult or by an interested party and would undermine the rights of a proxy with medical decision-making powers

    —  "nursing care" is too broad a concept, as is the concept of "routine" treatments, and the danger is that these could be interpreted to include the prescribing of inappropriate drug treatments such as the use of neuroleptic drugs to control challenging behaviour in people with dementia. There is considerable research evidence to show that this is happening and the Act was welcomed as a means of controlling this area of bad practice;

    —  there is a danger that the use of covert medication will go unchecked; and

    —  some "routine procedures" may not be routine for patients, who may find them frightening and refuse to co-operate, leading to the danger of recourse to the use of restraints in such circumstances.

  3.18  Point 8

  3.18.1  Any other points on Part 5 welcomed


  1.  The existing code gives no guidance on the covert administration of medication where the adult lacks capacity to give informed consent to take a prescribed medicine. Research indicates that the covert use of medications is prevalent, especially in long-term care settings. There is strong evidence that tranquilisers are being used inappropriately to control challenging behaviour in people with dementia and learning difficulties. The existing Code rightly makes reference to the Mental Welfare Commission's excellent guideline on Rights, Risks and Limits to Freedom (2002) in relation to the use of force or detention, but does not make reference to the covert use of medication for the purpose of restraint (for which the same ethical issues apply). The revised Code would benefit from the inclusion of a paragraph on this issue. We would also support regulations for the prescribing of neuroleptic drugs and to control the covert administration of medication.

  2.  There is concern that the Act and Code of Practice does not take account of the practical issues arising with regard to general authorisation to treat patients in acute hospital wards. The question is whether certification of incapacity is always appropriate before treatment is authorised to commence with a patient who is unable to give informed consent. Many elderly patients are admitted to acute hospital wards, and at the point of admission it is not known whether their incapacity is temporary, due to an acute illness, and/ or whether they have some previously diagnosed cognitive impairment. Many elderly patients panic or are very insecure when taken into hospital and could have symptoms that imply dementia, but once settled these symptoms disappear. Whilst treatment may not be a matter of life and death, any delay to treatment might lead to serious deterioration of their health. Consideration might therefore be given to extending the definition of "emergency treatment" to cover a very short, specified, period of time after admission to acute hospital care. Thereafter normal procedures would be followed.

  3.  Part 5 is the only part of the Act which is mandatory, yet it is the only part which does not contain penalties for non-compliance. Whilst cases of assault could be taken up by individual patients, this is highly unlikely where adults are vulnerable and lack capacity. In addition, this does not deal with the refusal of many general medical practitioners at present to comply with the Act. This non-compliance is not only having an impact on the treatment of adults under Part 5, but also on the operation of other parts of the Act. Consideration should be given to what sanctions would be appropriate if doctors deliberately fail to comply with the legislation.

  4.  It is felt that some doctors have little understanding about dementia and other conditions such as adults with profound and complex learning disabilities, and that the inclusion of definitions might be helpful.

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