Email your comments

The law in Scotland generally presumes that a person aged 16 years or over is legally capable of managing their own affairs and making personal decisions.

The exceptions to this are persons who have no or with impaired capacity, or where compulsory treatment is authorised under the Mental Health (Care and Treatment) Act 2003. The Adults with Incapacity (Scotland) Act 2000, sets out arrangements for making decisions about the welfare and health of adults who lack capacity to make decisions either because of mental disorder or inability to communicate. Part 5 of the Act lays out the principles which must be observed before any intervention takes place, including: least restrictive option, be of benefit to the patient; taking account of the past and present wishes of the patient, and the consultation with any proxy.

In an emergency situation where a patient is unable to give consent and intervention is necessary to preserve life or prevent a serious deterioration in their condition, treatment may still be given. However, there is sometimes confusion over the differences between emergency and necessity, and these may differ from specialty to specialty. The decision should relate to the immediacy of the procedure in question. Some interventions may be necessary to maintain life, e.g. re-section of a tumour, but time can be taken to determine the core principles of the Act.

There are therefore some benefits to be gained by having in place a medical proxy or Welfare Power of Attorney.

The term ‘proxy’ may also include a Welfare Guardian with powers over the treatment in question. There are requirements under Part 5 to involve such proxies in decision making about medical treatments. In many cases however, no formal proxy exists and whilst it is good practice to discuss proposed treatments with families and colleagues, the final decision about the treatment will lie with the doctor carrying out that intervention. Certain treatments are not covered by the Act including ECT, sterilisation, termination of pregnancy and drug therapies to reduce sex drive. Further authorisation for these treatments in incapacitated adults should be referred to the Mental Welfare Commission and the Court of Session.
Most doctors and medical proxies unanimously agree about treatment plans. However there are various routes of appeal where parties do not agree. A second opinion may be sought from the Mental Welfare Commission and if this doctor agrees with the treatment plan proposed, then treatment may take place notwithstanding the opinion of the proxy. If the second opinion doctor disagrees with the primary medical decision to treat, then the treating doctor can appeal to the Court of Session. It’s all very time consuming and distressing for all those involved and can be eased somewhat if the patient has an advance directive or ‘living will’. Unfortunately, few of us are encouraging our patients to complete these, but for people with progressive and terminal illnesses, they can be extremely helpful in making decisions on care in the later stages of disease.

Capacity should not be a static state. Rather, we should review on a regular basis any changes that may have taken place. It is also not all encompassing. Some people can understand and consent to simple procedures, such as taking medication, yet be unable to comprehend the complexities and risks of surgery. A separate certificate should be issued for major surgical procedures or processes involving a general anaesthetic.

In some patients, e.g. those with significant dementia, capacity may be irrevocably lost, yet the Section 47 authorising treatment has to be reviewed at the least, every three years. It is good practice in all cases requiring ongoing treatment interventions, where multiple physical health and mental health care needs exist, that a treatment plan is attached to the certificate. In practice this rarely happens. Indeed, having visited many residents in the Care Home sector I have seen very limited evidence of the use of Section 47 in treating people who lack capacity and even where the certificate has been completed, there is rarely a care plan attached.

The introduction and application of the Mental Health (Care and Treatment) Act 2003 brought with it quite significant additional funding. Unfortunately, AWI 2000 did not. Many saw the Act as an additional burden on already overstretched practitioners while others felt it all to be the domain of the Old Age Psychiatrist. It’s not! Any qualified doctor can assess capacity, but to do it properly is time consuming. The administration of the system is lacking co-ordination and patients frequently move from one sector of health care to another without their documentation accompanying them. It is imperative that we develop better communication between Secondary and Primary care with regard to formal treatment plans and certification. We need to develop some kind of personal record that allows this legal documentation to accompany us wherever we are cared for. This will reduce the need for duplication of assessments and make sure people are treated within the law. The Mental Welfare Commission are well aware of the poor use of Section 47 in the private sector, but we in the NHS have a responsibility too.

2. Mental Health (Care and Treatment) Act 2003.

3. A good practice guide on consent for health professionals in NHS Scotland

BGS Newsletter, May 2008
Issue 16 ISSN 1748-6343 16