Key points in Part 1
Incapacity is not an "all or nothing" concept - it is to be judged in relation to particular decisions.
Everyone carrying out functions under the Act must apply the general principles of:BENEFIT
TAKE ACCOUNT OF ADULT'S WISHES AND FEELINGS
ENCOURAGE EXERCISE OF RESIDUAL CAPACITY.
Medical practitioners have functions of providing certificates and reports under all Parts of the Act and should be aware of the wider provisions. However, this code deals in detail only with Part 5, medical treatment and research. The practitioners able to issue a certificate of incapacity under section 47 of Part 5 are listed in paragraph 1.2.
The code is not mandatory, but may be referred to by the Courts.
1.1 The law of Scotland generally presumes that adults (those aged 16 or over) are legally capable of making personal decisions for themselves and managing their own affairs. That presumption can be overturned in relation to particular matters or decisions on evidence of impaired capacity. The Adults with Incapacity (Scotland) Act 2000, referred to in this code as "the Act", sets out the framework for regulating intervention in the affairs of adults who have (or may have) impaired capacity, in the circumstances covered by the Act (such an adult being referred to in this code as "the adult"). The framework is underpinned by general principles and provides more flexibility than before to tailor interventions to the needs of particular cases. In the case of medical treatment and research, it provides a statutory framework for regulating what may and may not be done by practitioners and others acting with their authority.
1.2 For the avoidance of doubt, and following an amendment to section 47 (1) of the Act, the following practitioners may issue a certificate under section 47 giving authority to carry out medical treatment:
- a registered medical practitioner; or a dental practitioner, ophthalmic optician or registered nurse who has undergone training on the assessment of incapacity as prescribed in the Adults with Incapacity (Requirements for Signing Medical Treatment Certificates (Scotland) Regulations 2007, which are available at http://www.oqps.gov.uk/legislation/ssi/ssi2007/ssi_20070105_en_1, or any other training which may be prescribed by Scottish Ministers in regulations, or
- any other "individual who falls within a description of persons which the Scottish Ministers may prescribe in Regulations (provided they have undergone appropriate training on the assessment of incapacity as detailed above).
1.3 For the purposes of the Act "dental practitioner" has the same meaning as in section 108(1) of the National Health Service (Scotland) Act 1978 (c.29); and "ophthalmic optician" means a person registered in either of the registers kept under section 7 of the Opticians Act 1989 (c.44) as amended of ophthalmic opticians. Following amendments to the Opticians Act 1989 this should now be read as a reference to a person registered in the register of optometrists kept under that section.
1.4 Importantly, a certificate issued by healthcare professionals other than 'registered medical practitioners' will only be valid within their own area of practice e.g. a dentist should only authorise dental treatment.
1.5 The Act is not exclusive, either in relation to general incapacity law or in relation to medical matters. It allows for intervention in a wide range of property, financial or welfare matters where the adult lacks capacity. But an intervention is only permitted where the adult lacks capacity in relation to the subject matter of the intervention. It is necessary to consider whether the adult lacks capacity in relation to the relevant matter each time a decision or action falls to be taken.
The general principles
1.6 Section 1 of the Act provides that the following principles shall be given effect in relation to any intervention in the affairs of an adult under or in pursuance of the Act.
Principle 1 - benefit
1.6.1 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 be reasonably achieved without the intervention.
(So, for instance, if there is a prospect that the adult will regain sufficient capacity to make the necessary decision, and if a decision can reasonably be deferred, then it should be deferred)
Principle 2 - minimum necessary intervention
1.6.2 Where it is determined that an intervention in the affairs of an adult under or in pursuance of the Act is to be made, such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention.
1.6.3 All of the components of this principle are important. It does not refer to the simplest or least complex solution.
Failure to follow procedures which are in fact appropriate in the circumstances may be a significant infringement of the adult's freedom, because the proper lawful authority, with resultant protections, has not been obtained. At least the minimum necessary level of intervention must be provided, if the adult would otherwise not receive the benefit referred to in the first principle.
Principle 3 - take account of the wishes of the adult
1.6.4 In determining if an intervention is to be made, and, if so, what intervention is to be made, account shall be taken of the present and past wishes and feelings of the adult so far as they can be ascertained by any means of communication, whether human or by mechanical aid appropriate to the adult.
1.6.5 It is compulsory to take account of the present and past wishes and feelings of the adult if these can be ascertained. (see also paragraphs 2.28 to 2.33)
Principle 4 - consultation with relevant others
1.6.6 In determining if an intervention is to be made, and, if so, what intervention is to be made, account shall be taken, so far as it is reasonable and practicable to do so, of the views of:
- The nearest relative and primary carer of the adult;
- Any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention;
- Any person whom the sheriff has directed should be consulted; and
- Any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention, where these views have been made known to the person responsible.
1.6.7 It will be necessary to consider the adult's right to confidentiality and any previously expressed wishes about disclosure of information. It will also be advisable to consider any information that is known about the possible financial motives or frictions among family members. It can be helpful to explain to relatives and others that it is relevant to hear their own views even where these differ from those of the adult.
Principle 5 - encourage the adult to exercise residual capacity
1.6.8 Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under this Act shall, in so far as it is reasonable or practicable to do so, encourage the adult to exercise whatever skills he or she has concerning property, financial affairs or personal welfare as the case may be, and to develop new such skills.
1.6.9 Any person exercising functions under Part 5 will want to co-operate with guardians or welfare attorneys who are encouraging the adult to participate in a decision on their medical treatment.
Furthermore, any adult unable to make a decision about medical treatment may be able to make decisions on other aspects of their care, and should be encouraged to do so. Although the statutory application of this principle is limited to the appointees specified above, this and all preceding principles represent good practice in all matters concerning adults with impaired capacity, and should be applied whether or not in particular circumstances it is a statutory requirement. The principles can be particularly helpful when difficult judgements require to be made.
1.7 The general principles will be referred to throughout this code as they apply to the exercise by any of the persons mentioned in subsection (1A) of section 47 of the Act (which subsection has been inserted by the Smoking, Health and Social Care (Scotland) Act 2005) who has issued a certificate for the purposes of subsection (1) of that section.
Assessment of incapacity
1.8 The Act stresses an approach to the assessment of incapacity that is decision or action-specific. It is not an all or nothing condition.
1.9 An adult does not have impaired capacity simply by virtue of
- being in community care
- having a psychotic illness
- having dementia, particularly in the early stages
- having difficulties with speech or writing
- having an addiction
- disagreeing with the treatment or those offering it
- having learning difficulties or disabilities
- being vulnerable or at risk from him or herself or others
- behaving irrationally
- being promiscuous
- having a brain injury
- having a physical disability
- having a history of offending
- having an acquired or progressing neurological condition.
- declining to accept the practitioner's advice
- rejecting a recommendation for treatment on emotional rather than rational grounds
1.10 It is central to the Act that adults must not be labelled as incapable because of some other circumstance or condition. The assessment of incapacity must be made in relation to the particular matter or matters about which a decision or action is required. An adult assessed as incapable in relation to one matter should not, without proper assessment, be assumed to be incapable in relation to other matters.
1.11 Practitioners looking to assess incapacity for the purposes of section 47(1)(a) of the Act (as amended) should bear in mind that they are assessing incapacity in relation to a decision about the treatment in question. Every possible assistance must be given to the adult to understand his or her own medical condition and the decision that is required in relation to treatment. It may be useful to consider the British Medical Association's guidance on capacity to consent to treatment:
- To demonstrate capacity individuals should be able to:
- Understand in simple language what the treatment is, its purpose and nature and why it is being proposed;
- Understand its principle benefits, risks and alternatives;
- Understand in broad terms what will be the consequences of not receiving the proposed treatment; and
- Retain the information long enough to use it and weigh it in the balance in order to arrive at a decision (British Medical Association 2003).
The last bullet point in the BMA guidance was expanded in Scotland by the Adults with Incapacity (Scotland) Act, which requires that an adult should be able to retain the memory of the decision. However, it would be unreasonable to require that an adult must retain the memory of every decision he or she has made. It would be sufficient for the adult to be consistent in his or her decisions and/or to agree with a record of the decision when presented with it at a later point in time.
It may also be useful to refer to the Mental Welfare Commission guidance on Consent to treatment, which is available at http://www.mwcscot.org.uk/web/FILES/Publications/MWCConsenttotreatment.pdf
1.12 Practitioners should be on guard for signs that the adult, although apparently participating in decision-making, is unduly suggestible, as others may have a vested interest in asserting that the adult is, or alternatively is not, capable of taking decisions on medical matters.
1.13 Carers and relatives will have valuable information about the patient's present and past wishes and feelings but care should be taken not to let them simply answer for the adult, or put words into his or her mouth. They should be asked to differentiate between expression of their own views, which may be relevant, and reporting the known views of the adult.
1.14 It is a statutory requirement to take account of the present and past wishes and feelings of the adult, so far as they can be ascertained by any means of communication appropriate to the adult. Such means of communication could include direct human communication or communication by alternative and augmentative communication systems such as mechanical aids. It will be reasonable to use the help of the adult's relatives, friends, social worker, clergy, or others who may be available and in a position to assist. A multidisciplinary approach is recommended, utilising particularly the services of clinical psychologists, neurologists, speech and language therapists and of qualified and experienced interpreters (including British Sign Language interpreters), where it is reasonable and practicable to do so.
1.15 Enquiries should be made as to whether the adult already has an advocate, appointed from an independent advocacy agency, to assist him/her in understanding decisions to be made and in responding as far as possible. If not, it may be desirable for a patient's advocate to be appointed where the adult has no family member or friend to act as a 'natural advocate' or in circumstances where there is disagreement between interested parties as to the views of the adult. (See Annex 4 for contact details)
1.16 In assessing whether an adult is incapable, it can often be useful to consider what is "normal" for that adult. This will assist in cases where there may be incapacity linked to a psychotic illness, dementia, acquired brain injury or a progressive disease which can involve deteriorating capacity in its later stages. In acquired conditions, what is normal for the adult should be the baseline for assessment of incapacity, not any societal norm. The practitioner should draw on his or her own knowledge of the patient, as well as information from relatives, carers and other professionals, to assess whether there has been a deterioration in the patient's capacity, and the likely duration of that deterioration. Ultimately, however, the central issue is whether the adult retains adequate capacity to take the decision or decisions in question. Patients with fluctuating capacity (for example resulting from delirium or hypomanic conditions) will present particular issues. In such cases, it may be best that a certificate of incapacity should be of short duration to ensure that the patient's freedom is not restricted more than necessary. If a decision can reasonably be deferred until the adult is likely to regain sufficient capacity then in accordance with section 1 principles, it must be deferred.
1.17 It is important to note that an adult with learning difficulties may also experience deteriorating capacity as a result of ageing or illness. Many such patients will be capable of consenting personally to medical treatment given proper explanations and support and it will be important to be alert to the possibility that their capacity may also change over time.
1.18 The practitioner should bear in mind that issuing a certificate of incapacity is a potential restriction of the freedom of the patient. If a patient was capable of consenting to treatment previously there will need to be very careful assessment of why the patient is no longer deemed to be capable of doing so. It will be essential to involve relevant others in reaching that assessment and obtain if possible their agreement that this is the correct way forward.
In some cases involving diminishing or fluctuating capacity it may be helpful to ask whether the patient wishes to consider granting someone power of attorney relating to his personal welfare. This person is called a welfare attorney. A practitioner's assessment of incapacity for the purpose of the certificate may be challenged in court and will have to be well grounded in the Act.
1.19 "Incapacity" is defined in the Act only for the purposes of the Act. The Act recognises that a person may be legally capable of some decisions and actions and not capable of others.
1.20 For the purposes of the Act "incapable" means incapable of
a. acting; or
a. making decisions; or
c. communicating decisions; or
a. understanding decisions; or
a. retaining the memory of decisions
in relation to any particular matter, by reason of mental disorder or of inability to communicate because of physical disability or neurological impairment. A person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid.
1.21 The definition of "mental disorder" in the Act refers to the definition in the Mental Health (Care and Treatment) (Scotland) Act 2003. Under that definition, a person is not mentally disordered by reason only of sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on, or use of, alcohol or drugs; behaviour that causes or is likely to cause, harassment, alarm or distress to any other person; or acting as no prudent person would act.
1.22 For the purposes of the Act, incapacity must be judged in relation to particular matters, and not as an "all or nothing" generalisation. Practitioners must be alert to this whenever asked to assess incapacity for the purposes of the Act. Normally an assessment under Part 5 should seek to determine whether the adult:
- Is capable of making and communicating their choice
- Understands the nature of what is being asked and why
- Has memory abilities that allow the retention of information
- Is aware of any alternatives
- Has knowledge of the risks and benefits involved
- Is aware that such information is of personal relevance to them
- Is aware of their right to, and how to, refuse, as well as the consequences of refusal
- Has ever expressed their wishes relevant to the issue when greater capacity existed
- Is expressing views consistent with their previously preferred moral, cultural, family, and experiential background
- Is not under undue influence from a relative, carer or other third party declaring an interest in the care and treatment of the adult
1.23 The assessment will depend on the complexity of the proposed treatment and straightforward procedures may not require this level of investigation. Ultimately, it will be for the professional judgement of the healthcare professional to determine what is appropriate in each case.
1.24 It will also be important to investigate whether any barriers to consent are present, such as sensory and/or physical difficulties, undue suggestibility, the possible cognitive or physical effects of alcohol, drugs or medication, possible effects of fatigue, possible effects of pain and mental health status considerations.
1.25 A number of defining characteristics of incapacity clearly relate to communications skills, such as comprehension and expressive skills. Although many health and social care professionals have an awareness and training in human communication, clinical psychologists and speech and language therapists have a specialist knowledge and expertise. Where doubt exists, available expertise should be called upon to help. There is an absolute obligation to facilitate the exercise of capacity, where possible. Where the adult is enabled to communicate a valid decision, the adult's decision applies.
The term "proxy"
1.26 In this code the term "proxy" is used to mean a guardian, a welfare attorney or a person authorised under an intervention order with power in relation to any medical treatment referred to in section 47. There are requirements under Part 5 of the Act to involve such proxies in decision making about medical treatment and to involve guardians and welfare attorneys who have relevant powers in decisions about research. Part 5 also provides a dispute resolution process where proxies and practitioners do not agree about a treatment decision, or where the practitioner and proxy are in agreement but someone else who has a relevant interest disagrees. The proxy, the practitioner responsible for the treatment of the adult and the person with a relevant interest all have a right of appeal to the Court of Session (see paragraph 1.29).
The role of the Courts
1.27 The sheriff court is the main forum for proceedings under the Act. This also applies to medical treatment matters under Part 5. In particular, a decision by the practitioner who issues the certificate for the purpose of section 47(1) (as amended) that an adult is incapable of consenting to a particular form of treatment, and also a decision to treat the adult, where there is no proxy with power to consent to medical treatment, can be appealed to the sheriff, and thence with leave of the sheriff, to the Court of Session.
1.28 In relation to Principle 4, the requirement to consult, the practitioner who issues the certificate should be aware that under section 4(1) of the Act it is possible for an adult to apply to the sheriff to have the nearest relative displaced, or to have information withheld from the nearest relative. The sheriff may nominate another relative to take the place of the nearest relative or may order that no-one shall exercise the functions of nearest relative. Such applications cannot be made in advance of any incapacity.
1.29 The Court of Session is the forum for appeals in relation to treatment decisions under section 50 (as amended) of the Act, where there has been a dispute between the practitioner who issues the certificate for the treatment of the adult and any proxy with powers relating to the medical treatment in question, or between them and someone else having a relevant interest.
The proxy with powers relating to the medical treatment in question and the practitioner responsible for the treatment of the adult each have aright to appeal a decision where there has been a dispute between them. A person with a relevant interest who disputes a decision which has the agreement of both the proxy and the practitioner also has a right of appeal.
1.30 The sheriff has jurisdiction under section 3(3) to give directions to any person exercising functions under the Act. Anyone with an interest can apply. Directions can be given as to the exercise of functions under the Act and the taking of decisions or action in relation to the adult. A practitioner can if necessary use this procedure to obtain a ruling on any matter of significant doubt or difficulty.
Status of this code
1.31 The Act does not impose a legal duty to comply with the code. However, the code is a statutory document and there may, therefore, in certain circumstances, be legal consequences arising from failure to observe the terms of the code. For example someone might raise a legal action for negligence relying on the code as evidence that the person who issues the certificate did not follow best practice.
1.32 A code cannot foresee all the circumstances that might arise in practice. Should it appear that a detailed requirement of the code conflicts with the application of the general principles to a particular real life situation, the general principles should be followed. If the person who issues the certificate departs from the code, it is essential that he or she record the circumstances and reasoning behind that departure in a document which should become part of the patient's medical record.
1.33 The Scottish Ministers are obliged by the Act to prepare and review this code. It should therefore be followed unless there are good reasons for not doing so, such as those outlined above. It is likely that the courts will have regard to the code in considering matters put before them under the Act.
The Mental Health (Care and Treatment) (Scotland) Act 2003
1.34 The Mental Health (Scotland) Act 1984 has been repealed and replaced by the Mental Health (Care and Treatment) (Scotland) Act 2003. Most of the provisions of the new Act came into force on 5 October 2005.
1.35 The Adults with Incapacity Act does not deal specifically with the issue of whether a certificate is needed for a medical examination. Physical examination could be considered as medical treatment in the Act's definition, "Any healthcare procedure designed to promote or maintain the physical or mental health of the adult". However a general and non-invasive examination may not always require the issue of a certificate. Careful consideration will need to be given as to whether a certificate is needed for procedures which may be considered fundamental healthcare procedures by a person with capacity but must be approached with sensitivity if an adult with incapacity is involved, such as breast scans, cervical smears, x-rays and blood tests. It is likely that a certificate will be needed for invasive procedures such as endoscopy. In any case where the adult appears reluctant to be examined the issue of a certificate should be considered.