Feature

posted 4 Feb 2004 in Volume 9 Issue 2

Adults with Incapacity (Scotland) Act 2000: The legal safeguards surrounding medical treatment

Alexandra H M Lush LLB (Honours), a graduate of the University of Aberdeen, is currently working with the Scottish Law Commission, while converting to English Law. This article is based upon her degree dissertation.

As a consequence of the technological advances prolonging life in people suffering from brain injury and the increasingly aged population, 1 in 60 of the Scottish population are now incapacitated adults – a figure that is rising annually.

Prior to the Adults with Incapacity (Scotland) Act 20011 there was a belief implicit in the law that incapacity was absolute. All decisions regarding medical treatment, finances and management of property were taken out of the patient’s hands. There was no concept of patient autonomy or appreciation that the patient’s incapacity was often relative. This reaction to incapacity was outdated in a society where increasing importance was being attached to human rights.

These inadequacies, coupled with the lack of additional safeguards to controversial treatments and confusion over how authoritative English case law was in Scotland, were all symptoms of the over-paternalistic and inflexible attitude that dominated the relevant law. “Safeguards” were ineffective and patients were vulnerable. There was clear need for reform. It is, therefore, not surprising that during the passage of the Act, the six sections (47-52), comprising Part 52, required more parliamentary time and attracted more attention and comment than the whole of the rest of the Act, and were more significantly amended than any other sections3.

The Adults with Incapacity (Scotland) Act was the first major piece of legislation to pass through the Scottish Parliament. However, despite the re-drafting and the well-meaning concepts adopted by the Act, in practice many healthcare professionals are unaware of its contents, and those that are claim that they are drowning in bureaucracy. Implementation has raised as many concerns as the Act had sought to address4. A substantial number of doctors are refusing to adhere to the Act’s Code of Practice. Consequently, proposals for reform of Part 5 of the Act are urgently required to ensure its objectives can be ultimately achieved.

This article does not attempt a systematic exposition of Part 5 of the Act, let alone a complete one. It aims, in part, at exposing some of the conceptual incoherence in which Part 5 is bogged down, and suggests some possible implications for English law.

Ambiguity and other problems

“Reasonable and practicable5”

The phrase “reasonable and practicable” is used throughout the Code of Practice6 to describe the lengths clinicians are expected to go when “consulting relevant others”7 in regard to any intervention in the affairs of an adult under or in pursuance of the Act. However, there is no guidance offered as to what the parameters of reasonable and practicable are. For instance, if a motorcyclist has an accident and his wife is abroad, how far should one go in trying to consult her? It is submitted that greater clarity is required in the wording of the Act, possibly defining by example the extent of a clinician’s duty, thereby avoiding the current ambiguity and providing legal safeguards for the clinician.

“Medical practitioner primarily responsible8”

In particular, there are problems with what are known as “Section .47 certificates”. Through these, the medical practitioner primarily responsible for the adult can authorise medical treatment where they are of the opinion that the adult is incapable of making that particular treatment decision. Section 47(1) states: “Authority to do what is reasonable in the circumstances in relation to medical treatment applies to the medical practitioner primarily responsible.”

The Act does not define who the medical practitioner primarily responsible is, and the only guidance the Code of Practice offers is that: “It will depend on the circumstances in any particular situation9.”

When the author raised the point with the Scottish Executive, they stated that their solicitors have taken the phrase to mean a fully registered medical practitioner. However s.47 (4) states that medical treatment “includes any procedure or treatment designed to safeguard or promote physical and mental health”.

Such treatments might be undertaken by dentists, nurses or opticians, and as these are not registered medical practitioners the advice is clearly conflicting and likely to create confusion.

Welfare guardians

The British Medical Association (BMA) guidance and the Scottish Executive’s Code of Practice in relation to welfare guardians differ substantially. The BMA believes that if someone has undergone the costly and time-consuming process of becoming a guardian and the sheriff has given him or her powers under Part 6 of the Act to consent to treatment on behalf of the incapacitated adult, then a s.47 certificate is not necessary for treatment to be carried out. However, in the Scottish Executive’s Code of Practice, it states that a s.47 certificate is required, as well as consent from a guardian. This confusion has led to guardians turning up to consent to the treatment and being turned away as there is no s.47 certificate, resulting in delayed treatment and inconvenience to the clinician. The review of the Code of Practice stated that the additional requirement of a s.47 certificate where a guardian had been appointed was a safeguard protecting the incapacitated adult from potential abuse. Nevertheless, the conflict of opinion between the BMA and the Scottish Executive shows the extent of confusion caused from imprecise drafting and the failure of the Act to meet one of its main aims – a coherent legal structure.

General practitioners’ refusal to implement

Under Part 5 of the Adults with Incapacity (Scotland) Act 2000, general practitioners (GPs) are required to carry out a new assessment of each patient prior to any treatment, even where they have been treated for many years. For example, while in the past a doctor would simply administer a winter flu injection to a patient with dementia, under the new Act they must now assess each case, with all the attendant paperwork. This has led one commentator to state “we are drowning in bureaucracy10”.

The potential that either the injection will be delayed with adverse consequences for the patient, or that the rules will be conveniently overlooked, is evident.

In practice, rather than enduring the mountains of paperwork, over 300 GPs are breaking the law by ignoring the Act11. The effort involved in assessing and recording s.47 certificates has been estimated to equate to 100,000 of GP hours per year12.

Section 47 certificates: Safeguard or smokescreen?

Section 47 certification supposedly guarantees that the medical practitioner has given due consideration to the patient’s capacity to consent to a given treatment. As such, it should provide an invaluable safeguard. However, the vast majority of certificates are never checked nor collated.

The Medical and Dental Defence Union (MDDUS) informed the author that an estimated 90 per cent will never be referred to again. The lack of audit of the process and the time required to complete a certificate (about one hour13) potentially encourages abuse of the system and relegates it from being the supposed safeguard to a paper exercise.

Certificate of incapacity

Section 47(3) of the Act requires a registered medical practitioner to fill in a s.47 certificate authorising treatment. This is usually the general practitioner, that is, the “medical practitioner primarily responsible”. Under the terms of the Act, it is their responsibility to authorise treatment often in areas beyond their expertise. The Code of Practice recognises that: “The general practitioner unqualified in dentistry cannot be said to authorise a course of treatment given by a dentist.”

It advises them to certify in accordance with s.47 (1) of the Act, that the “adult is incapable to decide themselves on such treatment14”.

However, this appears to conflict with the general principles of the Act, which require that the person issuing the certificate (that is, the GP) should be “competent in terms of the intervention proposed15”, and for capacity to be assessed for each specific task.

Duration of the certificate of incapacity

At present, under s.47 (5) of the Act, the duration of a certificate of incapacity cannot exceed one year. This upper limit was set by the Scottish Parliament and was an increase from the original period of three months proposed at an earlier stage16.

The annual reassessment of patients, particularly those suffering from irreversible progressive disorders such as dementia, is another source of indignation among clinicians. The purpose of its limited duration was to protect incapacitated adults from being incorrectly labelled for life, and to ensure that the adult is not wrongly classified. Nevertheless, with 60,000 of the estimated 100,000 incapacitated adults in Scotland suffering from permanent incapability17, the Scottish Executive and the MDDUS both agree that this restriction of 12 months is illogical.

The author is of the view that greater flexibility in relation to the duration of the certificates, especially for those suffering from permanent legal incapacity like Alzheimer’s disease, would jeopardise the patient’s safety. It would, however, reduce the level of bureaucracy, which seems to be at the forefront of many of the criticisms of Part 5.

Assessing capacity to consent to examination

Certification of incapacity may require a detailed examination. The potential dilemma exists as to who can consent to this examination. Before it is performed, nobody can assume that the adult is incapacitated, yet their consent becomes legally invalid if they prove to be incapacitated.

This problem is especially acute if the examination could be classed as “intimate”, which would be the case if assessing the patient’s capacity to consent to abortion or sterilisation. It equates to the “chicken or the egg” quandary. This issue is not addressed in the current review of the Code of Practice.

Penalty for non-compliance

For the law to work in practice, it is necessary to have penalties for non-compliance. A criminal sanction is imposed for breach of s.83 of the Act18. The Code of Practice advises that failure to uphold the Act will result in legal sanctions, but it stops short of explaining what these are. Although the Act is aimed to guide clinicians rather than punish them, in the wake of the mass rebellion to the provisions in Part 5 and the reluctance of sheriffs to penalise clinicians who have ignored the Act but followed good-practice guidelines abiding by their duty of care19, the Act’s credibility as an enforceable piece of legislation is undermined. Defence organisations have advised their members that case law will set the Act’s parameters but to date, no cases have been brought to court and the law remains unclear.

Examinations must be “today”

Section 47 certification has to be performed on the day of treatment. As well as adding to the workload of the medical practitioner primarily responsible, this may not be feasible particularly where this is a different person to that undertaking the procedure. For example, the general practitioner would need to complete a section 47 certificate before a severely distressed incapacitated adult can receive dental treatment for a toothache. This will inevitably result in a detrimental delay in the therapy, negating the premise that the Act is meant to improve treatment for incapacitated adults. Arguably, this is an example of bureaucracy taken a step too far.

Lack of awareness of the Adults with Incapacity (Scotland) Act 2000

Through the author’s discussions with the Medical Dental Defence Union, and the Scottish Executive, it became apparent that despite the Act being introduced three years ago, there is still widespread ignorance over its application and in some cases, even its existence.

Information about the Act has not been disseminated to all relevant professionals. This failure to educate those who need to be familiar with the Act is another reason why Part 5 is not having the beneficial effect the Scottish Parliament desired.

Reform

The Code of Practice

Under s.13 (1)(h) of the Act, Scottish Ministers were required to prepare a Code of Practice for persons authorised to carry out medical treatment or research under Part 5. This Code of Practice, published in June 2002, is taken directly from the Act and explains to clinicians how the provisions in Part 5 will work in practice.

The code was due for review on 1 July 2003. However, because of the mass protests over the operation of Part 5, the Scottish Executive rather unexpectedly brought the review forward. A consultative document was circulated to all relevant bodies seeking views on the proposed amendments to the Code and the Act.

Although there is no legal obligation to adhere to the Code of Practice, it is a statutory document, the flesh on the skeleton of the Act. If not implemented, there could be legal consequences. The Public Guardian, Mental Welfare Commission, local authorities and supervisory bodies will refer to the Code in exercising their various supervisory and investigatory roles. The Code points out that it cannot foresee all the circumstances that might arise in practice, hence, in the event of conflict concerning a particular real-life situation, the Act’s general guiding principles should be followed rather than detailed adherence to the Code. The Code recommends that any departure should be recorded, with reasons and circumstances. This get-out clause indicates that the Act’s general principles are open to interpretation. This, together with the lack of audit around the process of obtaining s.47 certificates, does not provide reassurance that patients are receiving the full protection the Act promised. In addition, the interpretation adopted by the medical profession camouflages the legal objectives of the Act to the extent that they are totally obscured and no longer visible.

The proposed changes to the Code of Practice:

To incorporate the principle of proportionality to reflect the implications of treatment and interventions of greater or lesser gravity. For example, is it necessary to carry out the full-assessment procedures recommended in the Code of Practice, where, say, an intervention such as the administration of a flu immunisation or prescription of aspirin is concerned? It is suggested, therefore, that the Code might indicate that an extensive multi-disciplinary assessment would not be expected where the treatment proposed is either a continuation of existing treatment for the ongoing management of, for example, raised blood pressure or the annual administration of the flu vaccine;
Replace the part of the section 47 certificate, which states that the examination has to be carried out “today” to the BMA’s suggested amendment “based on my considered opinion…” This would allow current assessments and other relevant information to inform the certification process;
Comments have been invited on the appropriateness of requiring a certificate of incapacity under section 47 where a proxy exists.

Proposals for amendment of Part 5 of the Act

Many of the unworkable provisions outlined above will have to be resolved by amending the Act itself. Alterations to the Code of Practice are expected soon but amending legislation is a long and time-consuming process dependant upon the parliamentary timetable. Therefore, the following are not likely to come into practice for a significant period:

Changing the duration of a certificate of incapacity, under Section 47 from one to three years. This would be consistent with other parts of the Act in which there was little or no prospect of capacity being regained. It would also reduce the workload of the medical practitioner primarily responsible, especially if their patient list encompassed a high proportion of those suffering from permanent and increasing incapacity;
Giving more flexibility in Part 5 of the Act to allow health professionals to sign the certificate of incapacity, including other professions, for example, dentists and opticians;
Refining the definition of medical treatment to exclude certain forms of treatment (for example, general care such as oral hygiene, nursing care, blood pressure recording), thus simplifying the assessment and certification process.

After many months of rebellion to the terms of Part 5, general practitioners’ protests have been heeded and Malcolm Chisholm, the health minister, is undertaking a review of Part 5 with the aim of making it more “user-friendly”.

While the proposals for reform will facilitate the application of the Act and reduce the bureaucracy, some of the issues mentioned are not in the review (for example, lack of policing to ensure the Act is adhered to and consent to investigate capacity). Whether the MDDUS or other welfare groups will raise them is not yet known. If they are not raised, the proposed changes may only paper over the cracks. The deadline for feedback from the review of Part 5 and the date of the meeting of the British Medical Association – (the union for medical professionals) – was 30 June 2003. The responses are currently being collated and analysed. Hopefully, cognisance will be taken of the views of those who are asked to implement the Act, and alterations to the legislation will be forthcoming, allowing its noble aims to be achieved.

References:

Hereafter referred to as “the Act” or “Adults with Incapacity Act”
Which relates to medical treatment
Adrian D. Ward Adult Incapacity (2003) p288 para 14-1.
The primary motivation behind the Adults with Incapacity (Scotland) Act 2000 was not to revive the law surrounding medical treatment of incapacitated adults. Its remit was to tackle the law’s failure to meet the welfare and financial needs of adults with incapacity, to which medical treatment formed but a small part.
Adults with Incapacity (Scotland) Act 2000 s.1(4)
Used in para 2.4 of the code in reference to emergencies where it states: “It would also be good practice for the practitioner to make use, so far as is reasonable and practicable, of the procedures under Part 5 where this is without risk to the patient.” Also used in para 2.6 of the Code of Practice6 where it states: “The new authority should be used in every case where it is reasonable and practicable to do.”
Adults with Incapacity (Scotland) Act 2000 s.1 (4)
Adults with Incapacity (Scotland) Act 2000 s.47 (1)
Scottish Executive “Adults with Incapacity (Scotland) Act 2000 Code of Practice: For persons authorised to carry out medical treatment or research under Part 5”. 2002 para 2.8
Dr J Beaton General Practitioner in Troon – leading the GP rebellion over Part 5
Dr J Beaton (2002) “200 doctors threaten to strike action as BMA joins call to change law” Sunday Herald, 20 October 2002
Dr Jason Twinn (2002) “GPs urged to break law; Angry doctors call for action against ‘unworkable’ ruling” Daily Mail, 12 September 2002
ibid
ibid para 2.13
Scottish Executive (2003) “Adults with Incapacity (Scotland) Act 2000: Review of Code of Practice of Practice For Part 5 – Medical Treatment and Research – And Related Issues” para 2.9
Scottish Executive (2003) Adults with Incapacity (Scotland) Act 2000: Review of Part 5 Code of Practice – Medical Treatment and Research
Scottish Law Commission Report on “Incapable Adults” (N.0 151) 1995 Part 5 p 1
Section 83 is discussed in Chapter Two, para 10.2
Taken from my discussions with Dr Gilmartin from the MDDUS, April 2003.