Adults With Incapacity

Introduction

1. The relevant legal act is “Adults With Incapacity (Scotland) Act 2000” – this act protects adults aged 16 and over who lack capacity to make their own decisions in relation to welfare and/or finances.

Definition of Capacity

1. To have capacity is to have “the ability to understand information relevant to a decision or action and to appreciate the consequences of taking or not taking that decision or action”.
2. Incapacity can be caused by a mental disorder e.g. dementia, learning disability, acquired brain injury, severe illness or personality disorder. It can also apply to those unable to physically communicate decisions eg. due to aphasia (N.B.  having any of these disorders does not imply incapacity of itself).
3. In order to have capacity to make a decision, an individual must be able to:
   • Understand the decisions to be made
   • Act on the decisions
   • Make the decisions
   • Communicate their decisions
   • Retain the memory of their decisions
4. Individuals should be presumed to have capacity until this is assessed as otherwise

Support in Decision Making

1. We must give all available support to help patients make their own decisions. 
2. We must ensure the patient has the appropriate information including the benefits and risks of the decision in question. Other support may include:
   • Choosing the best time and place for a discussion
     • a relaxed environment,
     • a lack of interruption and noise
     • consider if one of time of day is better than another
   • Is there a family member or friend or advocate who can support decision making?
   • Could communication aids help with decision making?  For example, use of electronic or support from a Speech and Language therapist.
   • If the patient is acutely unwell or distressed or under the effects of medication can a decision on capacity be delayed?  (This may not be possible in an emergency situation).

Remember That Capacity can Fluctuate and Change with Time

1. Some patients, for example some patients with dementia, may have times when their capacity to make decisions is better than others.  In this case they should be enabled to make decisions when best able to do so.
2. Capacity should be kept under review, particularly during a time of acute illness.

Capacity is Decision-Specific

1. A blanket decision should not be made on capacity without considering the issues relevant to the individual.

Section 47 Certificate of Incapacity and the Treatment Plan

1. These allow medical practitioners to authorise healthcare treatment thought to be best for the patient’s health if that patient lacks capacity:
   • Both should be completed for an adult judged to lack capacity.
   • The section 47 certificate should detail the nature of the incapacity and the likely duration.
   • Multiple medical interventions can be covered on one section 47 certificate.
   • The medical interventions planned should be detailed in an attached treatment plan.
   • Completion of the certificate and treatment plan should be in consultation with relatives and/or other healthcare professionals.
   • Each relevant intervention should be documented on the treatment plan.
   • Fundamental healthcare includes basic nutrition, hydration, hygiene, pain relief and skin care etc.
   • Other medical interventions should be specifically named e.g. management of stroke disease, management of dementia.
   • The certificate and treatment plan should be signed and dated and details of those with whom it has been discussed recorded on the treatment plan.
   • If a medical intervention would normally require the signed consent of the patient then it should be detailed on a separate section 47 certificate – for example a patient requiring endoscopy or a surgical procedure. 
   • There are some interventions that cannot be authorised on a section 47 certificate.  These are unlikely to be of relevance to working in general medicine in DGRI – for example, ECT or sterilisation.
   • The person lacking capacity should still have their views and wishes taken into consideration.

Who can Complete a Section 47 Certificate?

1. A fully registered medical practitioner; foundation year 1 doctors should not be completing the certificate.
2. (Dental practitioners, ophthalmic opticians and registered nurses can complete a section 47 only for issues relevant to their practice).

Adults with Incapacity who try to Leave Hospital

1. It can be difficult to decide if the section 47 certificate is sufficient to cover this situation.
2. If the patient is easily re-oriented and persuaded to stay, a section 47 certificate is probably sufficient.
3. If the patient continually tries to leave and has to be physically prevented from doing so, this may require alternative interventions e.g. emergency detention.

Power of Attorney

1. This is a person granted authority to make decisions on behalf of a person who becomes incapable of making their own decisions.
2. POA must be granted while the person granting the power is capable of making this decision.
3. POA can relate to welfare or finances or both.
4. POA can only make decisions on the behalf of the person once that person has been assessed as lacking capacity to make decisions.

Guardianship

1. This is different to POA as it is only applied for when the person is assessed as not having the capacity to make decisions.
2. Can apply to welfare or finances or both.
3. Can be applied for by anyone with an interest in the person lacking, for example a family member or local authority.
4. It is appointed by the court.

Adults With Incapacity Act (Scotland) 2000

1. The principles of the Act in outline are:
   • o   The intervention should benefit the patient.
   • o   The intervention should be the one that least restricts the freedom of the patient.
   • o   The past and present wishes of the person should be taken into account.
   • o   The views of relevant others should be taken into account.

Links

1. Adults with incapacity: code of practice for medical practitioners

Content by Dr Amy Conley