3.Memorandum from The BPS Division of
Clinical Psychology (Scotland) (MIB 991)
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
2. ContextThe 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.
4. 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.
5. 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.
(1) The BPS Division of Clinical Psychology (Scotland)
has been invited to provide a response to the consultation on
the above Bill, with particular reference to the lessons that
can be learned so far from the implementation of the Adults With
Incapacity (Scotland) Act 2000 [AWI Act].
(2) Although there are a number of teething
problems with the AWI Act it has been welcomed as a significant
improvement on what went on before and has clearly enhanced the
rights of vulnerable adults and their carers. It is encouraging
that similar safeguards are planned for individuals in England
(3) As no formal study of the implications
of AWI Act for psychologists has been undertaken, and current
general research projects into the Act have not yet reported,
this response is somewhat anecdotal, but reflects the experience
of a number of senior practitioners in clinical practice.
(1) The AWI Act was the first piece of legislation introduced
by the Scottish parliament.
(2) There is a perception that, with hindsight,
the Act was introduced before appropriate systems were fully in
(a) Some parts of the Act were introduced
before the Codes of Practice
(b) The planned dates for implementation
of the Act were delayed
(c) Although there has been a huge investment
in awareness training, the experience of this has often been that
participants were left with a lot of unanswered questions about
the specifics of how the AWI Act should be implemented in practice.
(3) AWI consists of 6 parts
Part 1 General principles & administrative
Part 2 Continuing powers of attorney (commenced
2 April 2001)
Part 3 Accounts and funds (commenced 2 April
Part 4 Management of residents' finances
(originally due April 2002, commenced 2nd June 2003)
Part 5 Medical treatment and research (originally
due Autumn 2001, commenced 1st July 2002)
Part 6 Intervention orders & Guardianship
orders (commenced 1 April 2002)
(4) Whilst clinical psychologists may become
involved in providing assessment or advice relating to all aspects
of the AWI Act, the greatest involvement has related to Parts
5 and 6.
(1) The general principles of AWI are emphasised strongly
in the legislation.
All decisions made on behalf of an adult with
impaired capacity must:
take account of the adult's wishes,
if these can be ascertained;
take account of the views of relevant
others, as far as it is reasonable and practicable to do so;
restrict the adult's freedom as little
as possible while still achieving the desired benefit;
encourage the adult to use existing
skills or develop new skills.
(a) These principles have become well established
with health and social work professionals and the emphasis on
them is viewed very positively.
(b) There would appear to be a significant
benefit in the principles of the Act being prominent in this fashion.
(2) There is a great deal of inconsistency
across the country in how the AWI Act is being implemented in
(a) Some clinical psychologists are now regularly
being asked to provide detailed assessments of capacity by doctors
in relation to medical treatment and by social workers in relation
to potential applications for Guardianship or Intervention orders.
Clinical psychologists in other areas working with the same client
population have had no such requests.
(b) In some areas requests for assessment
appear to being made whenever a Certificate of Incapacity is being
considered (in some cases even when it would appear abundantly
clear that the individual is incapable). Other areas refer only
when complex issues are involved.
(3) It is clear in the Code of Practice
to Part 5 of the AWI Act that "medical treatment" is
defined as including "any procedure or treatment designed
to safeguard or promote physical or mental health" and that
this includes psychological treatment, however:
(a) There is confusion about the level of
psychological intervention (particularly indirectly through carers)
which requires certification under the Act.
(b) Due to this confusion there is little
evidence of psychologists proactively seeking certification by
medical practitioners for psychological interventions (and in
some cases where such certification has been sought this has immediately
been dealt with by the GP by them referring back to that clinical
psychologist for an assessment of capacity!).
(c) The level of familiarity with the detailed
requirements of the Act is in need of enhancement across a range
of healthcare staff.
(4) Guardianship and Intervention orders
are being increasingly used, although there is still a lot of
learning to be done as to how they can be used most effectively
to promote the rights and safety of individuals. There is also:
(a) some evidence of the "threat"
of Guardianship being used to promote co-operation with intransigent
(b) inconsistency across local authority
areas in the use of these measures.
(5) Part 5 of the AWI Act is generally recognised
as requiring further revision as evidenced by the recent consultation
exercise on possible revisions (responses currently being analysed).
Of greatest interest to psychologists in this consultation were
questions relating to:
(a) The principle of proportionality which
would allow different levels of assessment to be applied which
would reflect the implications of treatment and interventions
of a greater or lesser gravity. We would welcome the introduction
of a variable assessment procedure which would reflect the scope
and degree of the intervention or treatment proposed. This could
mean that referrals to clinical psychologists would focus on cases
where there was borderline capacity, conflict, other complex or
complicating issues, or where a full multi-disciplinary assessment
was in the person's (or public) interest.
(b) Whether it would be possible for someone
other than a registered medical practitioner to sign a certificate
of incapacity. We would welcome this provided appropriate safeguards
were in place in line with the variable assessment procedure above.
4. KEY ISSUES
(1) The most significant issue is how capacity is being
(a) The onus of assessment of capacity falls
on registered medical practitioners, many of whom have very little
contact with some of the groups of vulnerable adults for whom
incapacity is an issue.
(b) There is even evidence that specialist
medical practitioners can be inconsistent in their assessment
of capacity (eg Shah & Mukherjee, 2003), although there is
no available research on this in the context of the AWI Act.
(c) Practitioners who are unfamiliar with
the psychological complexities of these client groups may be unfamiliar
with the implications of acquiesence, suggestibility, emotional
maturity, cognitive bias, cognitive schema and communication difficulties
in relation to such assessment.
(d) The BMA in their guidance on ethical
and legal issues in Scotland (see annex 1) specifically highlight
the need for referral for psychological assessment in complex
cases. This is adapted from the Code of Practice for Part 5 of
the Act (which in turn is derived from a paper by Clark,2000),
but with the advice that this be carried out specifically by a
psychologist being added to the statement in the Codes of Practice.
(2) There needs to be clarity on when a
psychological opinion is sought.
(a) Clinical psychologists are a relatively
scarce resource, often carrying long waiting lists. For example
there are less than 40 qualified psychologists working with people
with learning disabilities in Scotland. To allow a timeous assessment
service it will be necessary to focus this on the individuals
where such specialist assessment is most appropriate.
(b) As indicated above it is suggested that
it would be appropriate to focus on cases where there was borderline
capacity, conflict, other complex or complicating issues, or where
a full multi-disciplinary assessment was in the person's (or public)
(3) Although psychologists are well placed
to use their clinical skills in the assessment of capacity, it
has become clear that there is a need to develop clearer standards
to ensure consistency of approach.
(a) As each assessment of capacity has to
be individualised and decision-specific it is unlikely that any
single assessment package will be appropriate to assess capacity.
(b) However, agreement on the introduction
(or development) of "standard" assessment measures is
likely to be beneficial (eg Arscott et al.,1999; Grisso &
Appelbaum, 1998) in so far as these can provide a consistent structure
to assist clinical decision making.
(c) These could be enhanced by the development
of assessments which are specific to particular types of decision,
such as those developed by Suto et al., 2002, in relation to financial
decision making and Wong et al., 2000, which focussed on capacity
to decide about having a blood test.
(d) The creative, individualised approach
to assessment of capacity for specific decision making would continue
to be available as the most specialised approach to assessment.
(e) The provision of structured algorithms/assessment
models for other professionals, such as GP's could be of benefit
in guiding them through the assessment of capacity with individuals
where it is not an obvious decision, and could identify cases
where more specialised assessment was required.
(4) The AWI Act is very clear in putting
an emphasis on the assessor to ensure that they make every effort
to enhance communication with the individual
(a) This requires greater use of Speech and
Language Therapists, and others who may enhance communication
with individuals to ensure a person centred approach.
(b) There is a need to produce information
about medical (and social welfare and financial) interventions
in ways which are accessible to people with communication difficulties.
(5) Despite one of the key principles of
the AWI Act being that of encouraging the adult to use existing
skills or develop new skills there is currently little evidence
of any work on the enhancement of capacity being reported. Education
strategies will clearly be able to enhance the capacity of some
individuals (for example, those who have recently moved out of
5. KEY DIFFERENCES
(1) It is encouraging that most features of the AWI Act
and the Bill are very similar apart from labels and level of emphasis,
(2) The requirement that a certificate of
incapacity be provided in relation to any active intervention
under the Scottish Act is probably the most significant difference.
(a) Although there have been some practical
problems in the provision of certificates of incapacity this does
ensure that there is formal record in a standard format of such
a decision having been taken.
(b) This has developed from the original
proposals regarding certification to a position now where this
certification can specify a range of elements in the treatment
plan for an individual and can include fundamental healthcare
(c) The absence of such a certification in
the Draft Mental Incapacity Bill does lead to concern about the
process of decision making, especially where the standard of assessment
is that the person "reasonably believes" that the individual
(i) In this case the definition of "reasonably
believes" is absolutely crucial to the equitable application
of the powers under the general authority.
(ii) There is a significant risk that
the quality of decision making will be a reflection of the ability
of the assessor (who in many cases will be unfamiliar with the
issues highlighted in 4.(1)(c) above, rather than of the capacity
of the individual concerned.
(iii) Pragmatically, this may be of less
significance in relation to low level interventions (and there
are probably advantages in not requiring certification for these),
but as interventions become more intrusive the need for standardised
formal recording increases.
(iv) There is potentially a risk of individuals
with "overpaternalistic" attitudes being very ready
to take decisions on behalf of a person on the assumption that
it must be in their best interests.
(3) There appears to be a greater emphasis
on the importance of enhancing communication in the AWI. This
is crucial in protecting the rights of individuals who otherwise
erroneously might be deemed incapable of decision making, when
the fact is that the assessor has failed to communicate effectively.
(4) The AWI has not led to the development
of a specialist Court system as is proposed in the Bill. It is
anticipated that this will be watched with great interest. It
does appear however that the Scottish system is potentially more
accessible as the Code of Practice for Part 5 states that "Anyone
having an interest may apply to the Court of Session for a determination
as to whether treatment should be given or not", whereas
the Draft Bill appears to be more restrictive in defining who
(5) It is unclear how disputes in relation
to decisions about medical treatment are to be resolved, whereas
this is detailed very clearly within the AWI Act and associated
codes. However, the role of medical visitor is also different,
and again we feel this will be watched with interest as to the
precise nature of the role.
(6) The AWI has a range of specific requirements
in relation to research with adults who are incapable of consenting.
It is not clear how this will be dealt with in relation to powers
under the Bill.
6. LESSONS TO
(1) The pace of implementation is crucial.
(a) It is important that all of the necessary
documentation and training is in place before the Bill is implemented
(and the experience of Scotland is that this will take much longer
(2) There is likely to be a requirement
for a huge investment in training.
(a) It is important that in addition to training
in the general operation of the Bill there is a national programme
of training in the specific application of the elements of the
(b) If this is not done it is likely that
a wide range of local interpretations will develop which will
inevitably lead to inequity.
(3) There is a significant need for clarity
on the different levels of assessment which will be applied under
(a) This should include the development of
a range of assessment materials which will be available to decision
makers to ensure consistency in applying the tests of capacity
specified in the act. It is clear from the Scottish experience
that these "high level" principles of assessment are
not enough in themselves when it comes to making complex decisions
about peoples lives.
(b) Many clinicians have highlighted a desire
for clearer guidance on how to provide assessments.
(c) There should also be a clear process
of assessment of capacity which highlights the situations in which
specialist and/or multi-disciplinary assessment is required to
ensure that the rights of an individual are protected.
(d) The models of assessment adopted need
to be reliable, valid, flexible, reasonable, practicable, defensible,
principled and the minimum intervention required to make the decision.
(e) Pragmatically, busy clinicians will benefit
from having "off-the-shelf" tools which can be used
to aid clinical judgement.
(4) It is important to recognise that this
is a complex area and that as practice develops so will interpretation
of how the Bill is to be best applied.
(5) The more details of practical interventions
that are highlighted in the codes of practice the better.
(1) The language used in the Bill is extremely important,
and how it is interpreted will have a very significant impact
on the implementation of the Bill.
(a) It is therefore crucially important that
there is clear guidance on what is meant by "Reasonably believes"
as this is the foundation for much of the decision making involved
in the Bill.
(b) The other very significant term is that
of "best interests", which is defined in the Bill and
described elsewhere as being a checklist. It is our belief that
this would be further enhanced by incorporating the BMA guidance
on "best interest" (see annex 2) with the addition of
a statement indicating the need to consider the psychological
well-being of the individual.
(2) The Bill specifies a role for Medical
Visitors and General Visitors, both of which are welcomed. However
consideration should be given to introducing other specialist
visitors, specifically Clinical Psychologists (who are best placed
to provide a specialised assessment of capacity in relation to
both medical, social and many communication issues) and Speech
and Language Therapists (who are best placed to provide specialised
assessments in particular areas of communication). Both of these
categories of professional visitors could operate in the same
fashion as a Medical Visitor within their respective areas of
(3) In considering decision specific capacity
it is important to consider the level of capacity which is required
for different decisions and whether this is higher than that for
the general population (see Murphy & Clare, 2003).
(4) The effectiveness of the Bill in achieving
its aims will to some extent depend on how far professionals and
carers who are involved in the care of vulnerable people are prepared
to identify situations where the general authority is being used
inappropriately. It is important in situations where significant
lifestyle and medical decisions are being taken on behalf of another
person that there is clear monitoring of this in place. This should
not only be in terms of abuse and exploitation, but also in relation
to overpaternalistic and overly risk-averse attitudes as this
can also be damaging to the individual.
(5) There is a clear need for a substantial
research programme to accompany the development of this Bill to
ensure that it achieves its aims.
Medical treatment for adults with incapacity:
guidance on ethical & medic-legal issues in Scotland2nd
edition October 2002
"Assessment of capacity
Capacity is assessed in relation to a particular
decision that needs to be made. An assessment of capacity is not
based on the test "would a rational person decide as this
person has decided?" Rather the thought processes behind
the decision are relevant to the question of capacity. . . In
cases where patients have borderline or fluctuating capacity,
it can be difficult to assess whether the individual can make
valid decisions on very serious issues. The BMA has published
detailed practical advice about assessing capacity. In many cases
there will, of course, be no doubt about a person's capacity.
Where there is doubt, a comprehensive psychological investigation
may be needed, which would seek to determine whether the adult
is capable of making a choice;
understands the nature of what
is being asked;
understands why a choice is needed;
has memory abilities that allow
the retention of information;
is aware of any alternatives;
has knowledge of the risks and
is aware of the decision's personal
relevance to him or herself;
is aware of his or her right to
refuse, as well as the consequences of refusal;
is aware of how to refuse;
is capable of communicating his
or her choice;
has ever expressed wishes relevant
to the issue when greater capacity existed; and
is expressing views consistent
with previously preferred moral, cultural, family, and experiential
A patient's abilities can fluctuate because
of a range of factors, including medical condition, medication,
time of day or mood. Doctors have a general ethical duty to enhance
capacity when it is possible to do so, and should seek to engage
patients in decision making when they are best able to participate.
Doctors constantly assess whether patients have
the capacity to make the decision they are faced with. Mental
abilities can be influenced by both medical and psychiatric conditions.
Any doctor should, however, be able to take a psychiatric history
and to conduct a basic mental state examination in order to define
straightforward abnormalities irrespective of their cause. Many
people can be assessed by their own GP. Indeed a close, long-term
acquaintance with the person being assessed may be an asset, particularly
if the person is more relaxed with a familiar doctor. Where
the person's capacity is borderline, however, or the treating
doctor does not feel able to make an objective assessment, specialist
advice should be sought."
[bold type for emphasisnot in original].
BMA CONSENT TOOL
Card 8Determining "best interests"
A number of factors should be addressed including:
The patient's own wishes and values
(where these can be ascertained), including any advance statement;
Clinical judgement about the effectiveness
of the proposed treatment, particularly in relation to other options;
Where there is more than one option,
which option is least restrictive of the patient's future choices;
The likelihood and extent of any
degree of improvement in the patient's condition if treatment
The views of the parents, if the
patient is a child;
The views of people close to the
patient, especially close relatives, partners, carers or proxy
decision makers about what the patient is likely to see as beneficial;
Any knowledge of the patient's religious,
cultural and other non-medical views that might have an impact
on the patient's wishes.
We would suggest that a statement relating to
the impact of the proposed intervention on the psychological well-being
of the individual should be added to this list.
Arscott, K, Dagnan, D & Stenfert Kroese,
B (1999), "Assessing the ability of people with learning
disability to give informed consent to treatment", Psychological
Medicine, 29, 1367-1375.
BMA websitemedical treatment for adults
with incapacity: guidance on ethical & medic-legal issues
in Scotland 2nd edition October 2002 http://www.bma.org.uk/ap.nsf/Content/adults+with+incapacity+-+scotland
BMA websiteBMA Consent Tool Kit Second
edition February 2003 Card 8Determining "best interests"
Clark, A (2001), "Consent issues when working
with people who have a learning disability",Working with
People who have a learning disability, 18, 8-14.
Grisso, T & Appelbaum, P S (1998), "Assessing
Competence To Consent To Treatment". New York: Oxford University
Murphy, G & Clare, I C H (2003), "Adults
capacity to make legal decisions", in Bull, R & Carson,
D, Handbook of Psychology in Legal Contexts (2nd edition),
Suto, W M I, Clare, I C H & Holland, A J
(2002), "Substitute financial decision-making in England
and Wales: a study of the Court of Protection", Journal of
Social Welfare and Family Law,24, 37-54.
Shah, A & Mukherjee, S (2003), "Ascertaining
Capacity to Consent: A survey of approaches used by psychiatrists",
Medicine, Science and the Law, 43,231-235.
Wong, J G, Clare, I C H, Holland, A J, Watson,
P C & Gunn, M (2000), "The capacity of people with a
`mental disability' to make a health care decision", Psychological