As mentioned in the introduction, the Scottish Government is carrying out work over the coming months to find ways of developing consistent standards across law and medicine on the assessment of capacity for the purposes of this legislation.
It has been suggested to us that as part of that work we consider whether it would be appropriate for other professionals to carry out capacity assessments. At present for a continuing or welfare power of attorney to be valid, it needs to incorporate a statement to the effect that a solicitor, advocate or registered medical practitioner has interviewed the granter immediately before the document was signed and was satisfied that the granter of the power of attorney understands its nature and extent and has no reason to believe the granter is acting under undue influence.
For guardianship orders, a registered medical practitioner and a doctor authorised under section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003, are required to examine and assess the adult and report on the adult’s incapacity as part of the application for guardianship, or an intervention order, where incapacity by mental disorder has been craved.
Under section 47 of the AWI Act, medical treatment for adults with incapacity can be authorised by any of the following:
- The medical practitioner primarily responsible for the medical treatment of the adult.
- A person who is a dental practitioner; ophthalmic optician; registered nurse or an individual who falls within a description of person as may be prescribed by Scottish Ministers.
Chapter Twelve of this consultation paper contains proposals for change around section 47 of the AWI Act.
However we would like your views on whether we should extend the range of persons who may be able to carry out capacity assessments for the purposes of guardianship orders to include a list of professionals similar to the approach taken for section 47. And if so, which other professionals do you consider might be appropriately placed to assess an individual’s capacity?
Definition Of Capacity
The AWI Act at s.1(6) currently defines capacity in the following terms:
‘Incapable means incapable of a) acting, b) making decisions, c) communicating decisions, or d) understanding decisions or e) retaining the memory of decisions, as mentioned in any provision of this Act by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack of or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid’.
However, because incapacity in most cases is founded on having a mental disorder, it could be argued that this appears to breach the requirements of the UNCRPD, that measures affecting legal status should be non-discriminatory, particularly given that measures under the AWI Act could give rise to a person having substantive rights removed. The approach behind the UNCRPD is that provisions that govern interventions, or legitimately restrict or deprive a person of liberty should be generic and equally applicable to all persons regardless of the type of diagnosis, mental or physical.
But we consider that in order to make fully informed decisions about the definition of capacity it would be helpful to have the findings of the report on learning disability and autism which is currently underway, therefore this consultation does not consider this issue but it is a matter the Scottish Government will return to when the review of learning disability and autism in the Mental Health (Care and Treatment) (Scotland) Act 2003 has concluded. 
Should we give consideration to extending the range of professionals who can carry out capacity assessments for the purposes of guardianship orders?
If you answered yes, can you please suggest which professionals should be considered for this purpose?