Joint Committee on the Draft Mental Incapacity Bill Memoranda

The British Psychological Society

Incorporated by Royal Charter - Registered Charity No. 229642




1. Background Highlights interest of BPS DCP (Scotland) in Bill in light of experience of Adults With Incapacity (Scotland) Act 2000 [AWI Act] and welcomes these proposals.

2. Context - The Adults With Incapacity (Scotland) Act 2000 Notes that there have been difficulties with the timescale of implementation. Details the main elements of AWI Act.

3. Experiences in Implementation of the Adults With Incapacity (Scotland) Act 2000 This emphasises the importance of the principles of AWI Act. Inconsistency in implementation is identified along with some areas of confusion, particularly in relation to the part dealing with medical treatment. Key issues from the recent consultation into this part of the Act are highlighted.

Key Issues for Clinical Psychologists arising from the Adults With Incapacity (Scotland) Act

2000 The key issue discussed is how capacity is being assessed. The complexities of such assessment are identified along with the need for specialist assessment in some circumstances. Advice is given on when a psychological assessment should be sought. The need for clearer standards in the assessment of capacity is discussed. The importance of communication is emphasised along with the importance of proactive approaches to enhancing capacity.

Key Differences between the Draft Mental Incapacity Bill and the Adults With Incapacity

 (Scotland) Act 2000 The requirement of a certificate of incapacity for active interventions in the AWI Act is noted as the most significant difference and the implications of this are discussed, in particular the importance of how "reasonably believes" is defined and applied. It is suggested that some form of certification should be required in some areas. The apparent greater emphasis on communication in the AWI Act is noted along with differences in the Court system. Differences in relation to dispute resolution and consent to participation in research are also identified.

6. Lessons to be learned from the Adults With Incapacity (Scotland) Act 2000 These identify that: the pace of implementation is crucial; there is likely to be a requirement for a huge investment in training; there is a significant need for clarity on the different levels of assessment which will be applied under the Bill; interpretation of the Bill will change over time, and that detail of the practicalities of intervention under the Bill in the codes of practice will be beneficial.

7. Additional comments on the Draft Mental Incapacity Bill The importance of interpretation of the language used in the Bill is identified. It is suggested that there are benefits in Visitors from psychology and speech and language therapy being included. Concern about monitoring of abuse of the powers in the Bill is noted. The need for a substantial research programme is highlighted. Appendices are provided on assessment of capacity, "best interests", and references.

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Prepared 12 September 2003