118.Memorandum from Alzheimer Scotland
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
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
3.2 Does the draft Bill meet these objectives
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
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
(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
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
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
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. GAPS IN
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
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
5. OTHER MATTERS
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)
1. Scottish Action on Dementia (1988) Dementia
and the Lawthe 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,
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.
ALZHEIMER SCOTLANDACTION ON DEMENTIA
Response to Scottish Executive's consultation
on Adults with Incapacity (Scotland) Act 2000
PART 5: MEDICAL
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 ScotlandAction on Dementia
Website. Altogether 40 responses have been received and these
have helped to inform our submission.
2. GENERAL COMMENTS
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. COMMENTS ON
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
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 operationa
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.
4. DETAILED RESPONSES
3.8 Proposals for change to the Part 5 Code
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.
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.
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
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?
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?
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
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.
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
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
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
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.