British Psychological Society
Incorporated by Royal Charter
- Registered Charity No. 229642
CONSULTATION ON DRAFT MENTAL INCAPACITY BILL
COMMENTS FROM THE BPS DIVISION OF CLINICAL PSYCHOLOGY (SCOTLAND)
SUMMARY OF RESPONSE
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
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
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.