Adults with incapacity (Scotland) Act 2000
The Adults with Incapacity (Scotland) Act 2000 was one of the first pieces of legislation passed by the Scottish Parliament and received Royal Assent on 9 May 2000. The idea was to provide a system to allow decisions to be made on behalf of adults who could no longer decide for themselves on issues of property, financial affairs and personal welfare, including medical treatment.
The Act defines incapacity as follows:19
“’incapable’ means incapable of
a) acting; or
b) making decisions; or
c) communicating decisions; or
d) understanding decisions; or
e) retaining the memory of decisions,
“… 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 or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and
“‘incapacity’ shall be construed accordingly.”
In addition to the Act itself, there is a Code of Practice containing further guidance for those having to make decisions on behalf of others. The Scottish government has also recently produced a very useful guide to communication and assessing capacity.20
There are two types of attorney under the Act:
- Continuing powers of attorney for managing specified aspects of an individual’s property or financial affairs when the person no longer has the capacity to deal with those matters, and
- Welfare attorneys, who are authorised to make decisions about personal welfare, including consenting to medical treatment.
Section 5 of the Act deals with medical treatment and research so that adults with incapacity can be provided with medical treatment aimed at maintaining or improving their physical health. The scheme requires the doctor who has overall responsibility for medical treatment to certify that the patient is incapable of consenting to a particular form of treatment or procedure. This allows the doctor to provide treatment that is reasonable in the circumstances and also to delegate that treatment to other individuals involved in the patient’s care. Certificates are now valid for up to three years, but can be revoked or replaced by a new certificate if circumstances have changed.
The authority to provide treatment under the Act
If a welfare attorney has been appointed and there is a disagreement with the medical team on the best form of treatment, the issue can be put before the Court of Session.
The Code of Practice published under Part 5 of the Act contains general information about the Act and clarifies how medical treatment can be provided to adults who cannot give consent themselves.
The Mental Capacity Act 2005
The Mental Capacity Act 2005 applies only to England and Wales and came fully into force in October 2007. It introduced a number of changes into English law. For the first time, competent adults are able to appoint people they trust to make treatment decisions on their behalf if they become incompetent at a later date. The Act also provides statutory backing to advance refusal of treatment.
In both these circumstances, the adult must be aged 18 or over; for all other purposes the Act defines an adult as a person of 16 or over.
The Act sets out a number of principles (see page 8). In addition to the presumption that all adults have capacity unless it can be demonstrated otherwise, patients cannot be regarded as lacking capacity unless all practicable steps have been taken, without success, to help them come to a decision; the fact that someone has made an unwise, perhaps even life-threatening, decision cannot in itself be taken as evidence of incapacity.
The Act defines a lack of capacity in the following terms:
“… a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
“It does not matter whether the impairment or disturbance is permanent or temporary.
“A lack of capacity cannot be established merely by reference to
a) a person’s age or appearance, or
b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.”21
It goes on to define an inability to make decisions:
“… a person is unable to make a decision for himself if he is unable
a) to understand the information relevant to the decision
b) to retain that information
c) to use or weigh that information as part of the process of making the decision, or
d) to communicate his decision (whether by talking, using sign language or any other means).
“A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
“The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
“The information relevant to a decision includes information about the reasonably foreseeable consequences of
a) deciding one way or another, or
b) failing to make the decision.”22
Where patients lack capacity, any treatment should be provided on the basis of promoting the patient’s best interests.
Exactly what is in someone’s best interests will depend upon his/her specific circumstances and is not confined to purely medical considerations. The Act requires that all factors, including religious beliefs or values expressed by the patient when competent be taken into consideration. No decisions can be made merely on the basis of age, appearance or behaviour, and patients must be encouraged to participate in the process of deciding what is to be done even if they lack the capacity to give consent.
Advance decisions
Section 24 of the Act allows competent individuals to make advance decisions about specified treatments they would not wish to be carried out under certain circumstances.
Where there are doubts about whether the patient may have changed his/her mind or whether the advance decision applies to the precise circumstances the patient is now in, the courts may be asked to determine whether or not an advance decision exists and is valid and applicable. Pending the declaration of the court, treatment to sustain life or prevent serious deterioration of the patient’s condition should be provided.
No liability is incurred by health professionals for withholding or withdrawing treatment if those responsible for care reasonably believe that a valid and applicable advance decision exists.
Individuals with capacity can grant a lasting power of attorney to others who can then make decisions about their welfare, property and affairs. However, there are a number of restrictions – the powers of an attorney do not extend to refusing or continuing life-sustaining treatment unless the patient expressly gave authority to that effect.
A Code of Practice (see reading list) is also published under the Act, providing more accessible advice on how to assist patients who are unable to make treatment decisions on their own.