Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47

Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 The Scottish Government, Edinburgh 2011

Crown copyright 2011 You may re-use this information (excluding logos and images) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or e-mail: psi@nationalarchives.gsi.gov.uk. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This document is available from our website at www.scotland.gov.uk. ISBN: 978-1-78045-291-3 (web only) The Scottish Government St Andrew s House Edinburgh EH1 3DG Produced for the Scottish Government by APS Group Scotland DPPAS11842 (07/11) Published by the Scottish Government, July 2011

Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Background 1 Part 5 of the Adults with Incapacity (Scotland) Act 2000, (AWI Act), relates to medical treatment and research. Section 47 sets out the procedure which allows a specified person to certify that an adult lacks capacity to consent to medical treatment, and gives that person the authority to carry out the medical treatment. 2 Under section 47(1A) the people who may certify incapacity in this regard are: (a) the medical practitioner primarily responsible for the medical treatment of the adult; (b) a person who is (i) a dental practitioner; (ii) an ophthalmic optician; (iii) a registered nurse; or (iv) an individual who falls within such description of persons as may be prescribed by the Scottish Ministers, who satisfies such requirements as may be so prescribed and who is primarily responsible for medical treatment of the kind in question. To date the Scottish Ministers have not prescribed any other persons. 3 The Act originally enabled only the medical practitioner primarily responsible for the medical treatment of the adult to certify incapacity in regard to the medical treatment. This was later amended by section 35(2)(b) of the Smoking, Health and Social Care (Scotland) Act 2005 to allow dental practitioners, ophthalmic opticians and registered nurses who have received training in the assessment of incapacity to sign certificates under section 47. 4 The completion of a section 47 certificate is a fundamental requirement of the AWI Act. Its completion signals that a full assessment of an adult s capacity to consent to particular medical treatment has been undertaken, and is important in ensuring the adult s safety and autonomy are considered fully. To treat an adult with incapacity without a section 47 certificate, unless it is emergency treatment, renders treatment unlawful and leaves practitioners at risk of legal action. 5 The recent Mental Welfare Commission report Dementia: decisions for dignity found that legal safeguards for people who lack capacity to consent to medical treatment are not being applied consistently. 1 These findings inform the context for this consultation: it is essential that medical practitioners undertake relevant statutory training in order to be competent to assess capacity for medical treatment under the AWI Act, including an awareness of the various considerations that need to be made when assessing an adult s capacity. 1 The Mental Welfare Commission report Dementia: decisions for dignity can be found on the Mental Welfare Commission website - http://www.mwcscot.org.uk/newpublications/mwc_publications.asp. 1

6 To ensure that those listed under section 47(1A)(b) are fully aware of the wide range of considerations that require to be taken into account when assessing a person s capacity, specific training must be completed and passed. In May 2005, the Scottish Executive commissioned NHS Education Services (NES) to develop a training package suitable for multi-professional delivery which would prepare those people set out in section 47(1A)(b) to undertake assessments for the purpose of carrying out medical treatment. It was agreed that the module would be accredited and NES commissioned Napier University to pilot the delivery of two cohorts of the module at SCQF Level 9. Training was specifically for dentists, ophthalmic opticians and registered nurses to satisfy the requirements of the Act. 7 The Adults with Incapacity (Requirements for Signing Medical Treatment Certificates) (Scotland) Regulations 2007 were made under section 47(1A)(b). These set out the requirement that the person concerned must have completed and passed the course entitled Adults with Incapacity: Part 5 Amendment Assessment of Incapacity for Health Professionals administered by Napier University, Craiglockhart Campus, Edinburgh. Consultation 8 The consultation is seeking views on four specific issues: Widening the range of institutions which can offer training The requirement for dental practitioners to complete this training The requirement for multiple section 47 certificates in some circumstances Whether other health professionals should be required to complete the training Widening the range of institutions which can offer training 9 Since the regulations came into force, the Scottish Government has received representations that allowing only Edinburgh Napier University to run the prescribed course limits opportunities for those who do not live or work locally, although the course has always been taught at least in part through distance learning. 10 Similarly, allowing only a single institution to deliver the prescribed course means that no appropriate training is available for this purpose if Edinburgh Napier University does not run the course. Question 1. Do you agree that the existing regulations should be amended to allow any suitable institution to provide accredited training? 2

Requirement for dental practitioners to complete training 11 The Scottish Government is aware that there is a question about whether dental practitioners should undertake this training. Currently, dentists, like doctors, undertake a five-year undergraduate training programme. At the core of this training is the principle of obtaining valid consent before undertaking any examination or investigation, providing treatment or involving patients in teaching or research. Usually this will involve providing information to patients in a way they can understand, before asking for their consent. In an otherwise healthy adult, the dentist may have more regular contact with a patient who may lack capacity and therefore be more aware of the limitations of that particular patient s capacity to consent. 12 Assessing an individual s capacity is complex, and requires consideration of a wide range of factors which may vary from person to person, and from one situation to the next. Some of the issues which require to be considered include models for assessing capacity; models for obtaining informed consent to treatment; professional accountability; ensuring that human rights are considered; the interaction between the Adults with Incapacity (Scotland) Act 2000, the Adult Support and Protection (Scotland) Act 2007 and the Mental Health (Care and Treatment) (Scotland) Act 2003. 13 Capacity is perhaps the single most important factor in an adult being able to make decisions about his or her life autonomously or requiring someone to make those decisions on their behalf. A decision about an adult s capacity is a key element of protecting his or her rights, and it should be assumed that an adult has capacity until it is proved that they do not. It is not the case that an adult who has a mental disorder automatically lacks capacity. No assumptions should be made about an adult s capacity on the basis of his or her age, appearance, condition or any aspect of his or her behaviour. It is therefore vital that a proper assessment of an adult s capacity is undertaken when necessary. 14 An individual s capacity can vary over time and in relation to different decisions. This underlines the importance of assessing fully an adult s capacity each time a decision about medical treatment is required, and documenting the assessment appropriately. 15 The general principles shared across all three Acts noted at paragraph 12 are that any intervention must benefit the adult and be the least restrictive option, take account of the adult s wishes and feelings (past and present) and take account of the views of the adult s nearest relative, primary carer, named person or any guardian of the patient. 16 The Scottish Government s preference is that those persons mentioned at section 47(1A)(b) of the Act complete the specified training. This ensures that those assessing capacity for treatment have the necessary knowledge and awareness to complete Section 47 medical treatment certificates. If there is evidence that this training is unnecessary for dentists, the Scottish Government would consider whether the requirement should be loosened or removed. This would require primary legislation. 3

Question 2. Should the current requirement under the AWI Act for dentists to undertake prescribed training in order to complete section 47 certificates stand? Do dentists already have sufficient knowledge and training to undertake section 47 certification without additional training as prescribed in the Act? Requirement for multiple section 47 certificates in some circumstances 17 The Scottish Government is aware that situations have arisen where more than one person has been required to sign a section 47 certificate in respect of medical treatment for a single adult. 18 Section 47(3) of the Act states that: The authority conferred by subsection (2) shall be exercisable also by another person who is authorised by the person on whom that authority is conferred to carry out the medical treatment in question and who is acting (a) on his behalf under his instructions; or (b) with his approval or agreement. 19 The AWI Act Part 5 Code of Practice sets out the process required for treatment that requires more than one element. 2 Paragraph 2.4 states that: A certificate issued by healthcare professionals other than registered medical practitioners will only be valid within their area of practice, eg a dentist could only authorise medical treatment. Paragraph 2.15 states that: A medical practitioner primarily responsible for the medical treatment of the adult may issue a certificate in respect of any medical treatment, whereas any other healthcare professional authorised to issue a certificate may only do so for the kind of treatment for which they are responsible. 20 This is sometimes being interpreted to mean that multiple certificates from different health professionals are required. In practice, a requirement for multiple section 47 certificates may lead to delays in treatment. For example, a dentist who has undertaken the prescribed training and has certified an adult as lacking capacity under section 47 for dental treatment, may consider themselves required to have a further section 47 certificate signed by an anaesthetist to administer general anaesthetic as part of the same dental treatment. 21 At the forefront of this issue is the importance of ensuring that patients are treated and supported with minimal delay. This may be complicated further where Health Board policies regarding the use of multiple section 47 certificates conflicts 2 The Adults with Incapacity Act 2000 Part 5 Code of Practice can be found at http://www.scotland.gov.uk/publications/2010/10/20153801/0. See paras 2.2 2.16 in particular. 4

with advice give by medical defence unions. While it is important that procedures are followed appropriately, unnecessary delays could be detrimental to the health of a patient, which is clearly not in the best interests of someone requiring treatment. Views are sought on the use of multiple section 47 certificates in practice. Question 3. Are there circumstances where multiple section 47 certificates should be required? Are there circumstances where a patient s safety or well-being is undermined by any requirement to have multiple section 47 certificates? Other health professionals 22 The health professionals specified in section 47(1A)(b) are those who are most likely to need to assess an adult s capacity in regard to medical treatment, and who do not necessarily receive training about the assessment as part of their basic training. However, the Scottish Government is aware that other health professionals not specified in the Act may have to assess an adult s capacity in regard to medical treatment, and that issues around capacity are not necessarily taught as part of all degrees. Question 4. Should other health professionals be enabled to issue certificates under section 47 provided they have undertaken and passed additional training to assess capacity, as per section 47(1A)(b)(iv) of the AWI Act? 5

Responding to the consultation paper 23 We are inviting written responses to this consultation by 10 October 2011. Please send your response together with the respondent information form (see the section entitled Handling your response ) to: awiconsultation@scotland.gsi.gov.uk Or by post to: Gillian Heavie Scottish Government Health Directorate Reshaping Care and Mental Health Division Mental Health Legislation and Adult Protection Policy Team 3ER St Andrew s House Regent Road EDINBURGH EH1 3DG If you have any queries please contact Gillian Heavie on 0131 244 4472. If you are aware of individuals or organisations who may have an interest in this consultation but who are not on the consultation list in the Annex please let the Scottish Government know using the contact details above, or forward the consultation link on. 24 All responses should be completed using both the Scottish Government respondent information form and the attached question paper. 25 This consultation, and all other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website. 26 The Scottish Government has an email alert system for consultations: http://register.scotland.gov.uk (SEconsult). This system allows stakeholders, individuals and organisations to register and receive a weekly email containing details of all new consultations. SEconsult complements but in no way replaces Scottish Government distribution lists and is designed to allow stakeholders to keep up-to-date with all Scottish Government consultation activity and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register. Handling your response 27 We need to know how you wish your response to be handled and in particular if you are content for your response to be made public. You should complete the respondent information form, which is part of the consultation questionnaire, as this will ensure that we treat your response appropriately. If you ask that your response is not published, we will regard it as confidential and will treat it accordingly, subject to any legal requirements on the Scottish Government to disclose the information. 6

28 In that regard, all respondents should be aware that the Scottish Government are subject to provisions of the Freedom of Information (Scotland) Act 2002 and would have to consider any request made to it under the Act for information relating to responses made to this consultation. 29 Where respondents have given permission for their response to be made public and after we have checked that they contain no potentially defamatory material, responses will be made available to the public in the Scottish Government Library (see the attached Respondent Information Form), these will be made available to the public in the Scottish Government Library by 7 November 2011. You can make arrangements to view responses by contacting the SG Library on 0131 244 4452. Responses can be copied and sent to you, but a charge may be made for this service. Responses will be added to the Scottish Government website by 14 November 2011. What happens next? 30 Following the closing date all responses will be analysed and considered along with any other available evidence to help us reach a decision on these issues. Comments and complaints 31 If you have any comments on how his consultation exercise has been conducted, please send them to the Reshaping Care and Mental Health Division at the contact details shown above. 7

Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 RESPONDENT INFORMATION FORM Please Note this form must be returned with your response to ensure that we handle your response appropriately 1. Name/Organisation Organisation Name Title Mr Ms Mrs Miss Dr Please tick as appropriate Surname Forename 2. Postal Address Postcode Phone Email 3. Permissions - I am responding as Individual / Group/Organisation Please tick as appropriate (a) Do you agree to your response being made available to the public (in Scottish Government library and/or on the Scottish Government web site)? (c) The name and address of your organisation will be made available to the public (in the Scottish Government library and/or on the Scottish Government web site). (b) Please tick as appropriate Yes No Where confidentiality is not requested, we will make your responses available to the public on the following basis Are you content for your response to be made available? Please tick ONE of the following boxes Please tick as appropriate Yes No Yes, make my response, name and address all available or Yes, make my response available, but not my name and address or Yes, make my response and name available, but not my address (d) We will share your response internally with other Scottish Government policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for Scottish Government to contact you again in relation to this consultation exercise? Please tick as appropriate Yes No 8

Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Consultation Questions: Question 1. Do you agree that the existing regulations should be amended to allow any suitable institution to provide accredited training? Yes No Don t Know Please provide further comments: 9

Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Consultation Questions: Question 2. Should the current requirement under the AWI Act for dentists to undertake prescribed training in order to complete section 47 certificates stand? Do dentists already have sufficient knowledge and training to undertake section 47 certification without additional training as prescribed in the Act? Yes No Don t Know Please provide further comments: 10

Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Consultation Questions: Question 3. Are there circumstances where multiple section 47 certificates should be required? Are there circumstances where a patient s safety or well-being is undermined by any requirement to have multiple section 47 certificates? Please provide further comments: 11

Adults with Incapacity (Scotland) Act 2000 Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Consultation Questions: Question 4. Should other health professionals be enabled to issue certificates under section 47 provided they have undertaken and passed additional training to assess capacity, as per section 47(1A)(b)(iv) of the AWI Act? Yes No Don t Know Please provide further comments: 12