Individuals can be supported and protected under the Act whether they have capacity or not, however it is often beneficial to assess the adult's safeguarding capacity to inform risk assessment and aid decision making.
When assessing over-arching capacity the relevant legislation is the Adults with Incapacity (Scotland) Act 2000 . For the purposes of the Adults With Incapacity (Scotland) Act 2000 , "incapable" means incapable of:
- acting; or
- making decisions; or
- communicating decisions; or
- understanding decisions; or
- retaining the memory of decisions.
However, capacity is not all or nothing in this context .
The Adult Support and Protection (Scotland) Act 2007 recognises that a person may be capable of some decisions and actions and not capable of others. A person lacks capacity to take a particular decision or action when there is evidence that he/she is unable to do so. Adult support and protection applies to those with and without mental capacity.
It is also important to bear in mind that an inability to safeguard oneself is not the same as an adult lacking mental capacity. For example a person may have relevant mental capacity, but also have physical limitations that restrict their ability to implement actions to safeguard themselves. Further, due to many situational factors in an individual's life, capacity to make an authentic decision is a fluctuating concept. One should consider then, that even where a person can make a free and authentic decision, are they able to action that decision to safeguard themselves?
Specifically with regard to the Act, General Practices are not assessing overall capacity (as per the Adults with Incapacity (Scotland) Act 2000 ) but instead an assessment of capacity in terms of being able to safeguard oneself within a particular context.
Triage questions to assist practitioners in reflecting whether fuller consideration of a person's capacity is required in relation to the specific risks may include:
- Does the person understand the situation they are facing?
- Does the person understand the options?
- Does the person understand the possible ramifications of choosing various options?
- Do they fluctuate in their understanding of choices?
- Are they able to act on stated safeguarding decisions?
For further information on assessing capacity, please refer to the Guide to Assessing Capacity.
The principles of the Adults with Incapacity (Scotland) Act 2000 must be followed to ensure that all decisions that are made are for the benefit of the adult. The underpinning principles for decision making that have to be followed in any decision taken for an incapable adult when deciding which measure will be the most suitable for meeting the needs of the individual.
In summary – in terms of the Act some of the key factors to consider when assessing capacity and an individual's ability to safeguard, and they are not exhaustive, are ;
- A person may not have the ability to make a particular decision at a certain time, but this does not mean that they will never have the ability to make that decision
- That you consider your patient's ability to safeguard with regard to each decision/task as to their ability to; act, or make a decision, or communicate decisions, or understand decisions, or retain the memory of decisions
- Ensure that the assessment is context, decision and task specific
- Listen to the adult and take their views into consideration
- If feasible, and appropriate, consult and take into consideration views of family members/carers.
- All practicable steps must be taken to assist the adult and help them understand and communicate.
Useful learning resources from Think capacity/Think consent offer helpful information, saying "Capacity to consent must always be assessed and incapacity should never be presumed because a person has a particular health condition or disability, for example mental health problems, learning disabilities, or dementia".
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