Adults with Incapacity (Scotland) Act 2000

Part 5 – “Medical Treatment and Research”

Mike Warwick, Medical Officer

Borders Providers Forum 6/12/13

Commission’s Role

• Independent organisation established under the 1960 Mental Health Act

• Responsibilities to protect and promote the rights and welfare of people with a mental disorder

• Extended duties under new legislation – AWI Act 2000, MH Act 2003, ASP Act 2007

• Accountable to Scottish Parliament

The wider role of the MWC

• Duty to give advice (S9 of the MHA) – NB Telephone advice line

• Visiting individuals receiving care and treatment in various settings and/or subject to certain orders under the MHA and AWI

• Conducting investigations into concerns re personal welfare or property of adult (S11 of MHA, S9 of AWI)

• Duties to cooperate with, and bring matters to the attention of various agencies (S7 and 8 of the MHA and S9 of the AWI)

Adults with Incapacity Act

Part 1- “General”

Includes:• the Principles• Definitions• Sections on Sheriff and public bodies

including the MWC

“Adult” means anyone over 16

Adults with Incapacity Act - Principles

Everyone carrying out functions under the Act mustapply the general principles of:

• BENEFIT

• MINIMUM INTERVENTION

• TAKE ACCOUNT OF ADULT’S WISHES AND FEELINGS

• CONSULT OTHERS

• ENCOURAGE EXERCISE OF RESIDUAL CAPACITY

Adults with Incapacity Act

CONSULTING OTHERS

Principles include taking account of:

• The views of the nearest relative and primary carer of the adult

• The views of any guardian, continuing or welfare attorney who has powers relating to the proposed intervention.

In so far as is reasonable and practicable to do so.

In AWI “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.

only if communication deficiency cannot be made good by human or mechanical aid

Mental Disorder in AWI

Same meaning as in Mental Health (Scotland) Act 2003

• (a) mental illness;

• (b) personality disorder; or

• (c) learning disability,

• however caused or manifested;

Capacity

• Capacity is not an “all or nothing” concept

• Capacity is decision-specific

• A person can be capable of making a decision about one treatment but incapable of making a decision about another more complicated treatment

• e.g. someone with learning disability may be able to understand and consent to paracetamol for pain but be incapable of consenting to treatment for diabetes.

Adults with Incapacity Act

Part 2 – Continuing Powers of Attorney and Welfare Powers of Attorney

Part 3 – Accounts and Funds

Part 4 – Management of Residents’ Finances

Part 5 – Medical Treatment and Research

Part 6 – Intervention Orders and Guardianship

Adults with Incapacity Act

CODE OF PRACTICE (Third Edition)

FOR PRACTITIONERS AUTHORISED TO CARRY OUT MEDICAL TREATMENT OR RESEARCH UNDER PART 5 OF THE ACT

http://www.scotland.gov.uk/Publications/2010/10/20153801/0

or Google “SG/2010/57” – the document reference code

Part 5 does not apply to Emergency Treatment

Common law allows medical treatment to be given in an emergency to patients who cannot consent.

This remains the case and there is no need to go through the steps in Part 5 of the Act in order to give treatment for the preservation of the life of the adult or the prevention of serious deterioration in the adult’s medical condition.

Code of practice covers in more detail and also MWC’s Right to Treat good practice guidance.

AWI Part 5

Medical treatment is “any procedure or treatment designed to safeguard or promote physical or mental health”.

Section 47 allows authorisation of medical treatment for an adult who “is incapable in relation to a decision about the medical treatment in question”

A Section 47 Certificate of Incapacity is needed to authorise treatment

AWI Part 5

Section 47 certificate needed, but cannot alone authorise treatments subject to further safeguards under S48/Regulations

Need MWC-appointed Doctor arranged to approve:

• Drug treatment for the purpose of reducing sex drive, other than surgical implantation of hormones.

• ECT for mental disorder.

• Abortion.

• Any medical treatment which is considered likely by the medical practitioner primarily responsible to lead to sterilisation as an unavoidable result.

AWI Part 5

Under S48/Regulations

Need Court of Session approval for:

• Sterilisation where there is no serious malfunction or disease of the reproductive organs

• Surgical implantation of hormones for the purpose of reducing sex drive.

AWI Part 5

Section 47 and Mental Disorder

• Section 47 cannot authorise treatment for mental disorder for an adult to whom Part 16 of the Mental Health Act applies (i.e. treatment of mental disorder authorised under Mental Health Act).

• MWC advises advise using the Mental Health Act if it is necessary to give treatment for mental disorder and the person resists or objects to that treatment.

AWI Part 5

Who can assess the adult’s capacity and complete a Section 47 certificate?

1.The medical practitioner primarily responsible for the medical treatment of the adult

2.Since amendment of 2005, a dental practitioner; ophthalmic optician; registered nurse if………………….

……….they have done the training, and are primarily responsible for medical treatment of the kind in question

Usually completion of S47 certificate falls to doctor (can be paid for dental certificates).

AWI Part 5

This was removed from original code of practice after the 2005 amendments:

A person acting on behalf of the medical practitioner primarily responsible under his or her instructions or with his or her approval or agreement could include any member of the healthcare team involved in the adult’s medical treatment, including other doctors, nurses, nursing auxiliaries, physiotherapists, psychologists, occupational therapists, phlebotomists etc. It could also include dentists, opticians, chiropodists or other professionals allied to medicine who might be asked at different times to attend to an adult’s particular healthcare needs.

Adults with Incapacity Act

Section 47 Certificate and Treatment Plans

See Handout

Annex at back of code of practice gives directions for completion

Section 47 printable .pdf at: http://www.scotland.gov.uk/Topics/Justice/law/awi/forms/Medical-Report-Forms

Treatment plan – I am not aware of any blank proforma other than the one in the code of practice.

NB this lacks prompt for name of person signing in print, designation, address and date. Best if can be added.

Adults with Incapacity Act

Scottish Government Section 47 Certificate proforma does not have to be used.

An local electronic certificate can be created as long as the wording is exactly the same as the wording on the Government’s form.

Section 47 certificate

• Should be completed in line with the Principles including consulting carer and nearest relative.

• Entries on the Certificate or treatment plan can include “Fundamental Healthcare Procedures”

• Otherwise should be named conditions.

• New medical treatment for new conditions in future will not be covered.

• General catch-all entries do not meet the requirements of the legislation and will not cover specific treatment.

A treatment plan I saw recently

• Fundamental healthcare procedures + routine treatment of chronic diseases + intercurrent illnesses as detailed in the hospital, nursing and GP records.

• LD + cerebral palsy

• Irregular periods

• Bladder instability

Very good - Covers all treatments, but still has generalised statement.

Section 47 certificate

• Covert medication should not be put on S47 certificate:

the treatment should be, but how to give it is a care planning issues.

Section 47 certificate

Provides “general authority to treat” with exceptions.

(1) If there is a welfare proxy with power to make decision re medical treatment

and the person who completed the certificate is aware of this

and it would be reasonable and practicable for them to obtain their consent but they have not done so………….

The S47 certificate provides no authority to treat

(See code of practice page 18. If person completing certificate suspects there may be a welfare proxy, it would be good practice to check with close relatives.)

“General authority to treat” exceptions.

(2) If an application for an intervention order or a guardianship order with power in relation to medical treatment has been made to the sheriff and not been determined. MWC have concerns re this. If situation occurring phone us.

(3) If there has been an interdict granted that prohibits the provision of the treatment.

(4) Where there is unresolved welfare proxy dispute in process or application has been made to Court of Session. See Medical Treatment Flowchart.

But…..in all of these situations can give treatment to preserve life or prevent serious deterioration.

Section 47 “shall not authorise”…….

“the placing of an adult in a hospital for the treatment of mental disorder against his will” (Mental Health Act would be needed for this)

Or………

“the use of force or detention, unless it is immediately necessary, and only for so long as is necessary in the circumstances”

Section 47 certificates andCare Homes

• Care Inspectorate check use of Part 5 for residents on some inspections.

• MWC have undertaken unannounced visits in care homes and hospitals to review use of Part 5

• Care home staff are advised that they should know medication they are supporting people to take is prescribed within the law.

• They are encouraged to ask GPs for copies of S47 certificates to keep in care home.

GuardianshipandCare Homes

Covert medication

• Related issue.

• MWC have issued good practice guidance.

• Nobody who can make a capable decision to refuse treatment for physical disorder would be given covert medication.

• All would need to have the medication covered by Section 47 certificate.

• The exception would be where they are receiving treatment for mental disorder under Mental Health Act and that is given covertly.

Draft update of this guidance is now on website for consultation

mwcscot.org.uk