Incapacity and the law in Scotland

Guidance on treating adults who have or may have impaired capacity in Scotland.

Capacity

There is a presumption in Scottish law that all people aged 16 or over have the capacity to make personal decisions for themselves. This includes making decisions about their dental care.

However, under the Adults with Incapacity (Scotland) Act 2000, that presumption can be overturned in relation to particular matters or decisions where there is evidence of impaired capacity.

Capacity can be impaired by disease, disability, injury or the effects of medication, recreational drugs or alcohol, but it's important to remember that the existence of any of these conditions does not automatically remove the presumption of capacity.

Capacity is time and situation specific, so it's possible for a patient to lose and regain their ability to make decisions for themselves as determined by their level of impairment at any given time. It is also possible that some patients may have capacity to make certain decisions but not others, depending on their level of impairment.

Adults with Incapacity (Scotland) Act 2000

The Adults with Incapacity (Scotland) Act 2000 aims to safeguard the welfare and finances of adults who lack capacity. Welfare issues cover not only financial and property matters, but also health-care issues including medical and dental treatment decisions.

Section V of the Act relates to medical treatment and research (including dentistry). The Scottish government has published a code of practice for the application of Section V (updated October 2010), which details how the provisions of the Act should be applied.

Treating adults with impaired capacity

In practice, the majority of dental care for adults with incapacity is provided by adult special care dentists in the public dental service or secondary care. However, in some circumstances general dental practitioners and DCPs working in a general dental practice may be required to treat patients with impaired capacity, so it's important to be aware of the law.

Any determination of incapacity must be made by someone with the appropriate training. Dentists can be appropriately trained to assess capacity and issue a certificate of incapacity under Section 47 of the Adults with Incapacity (Scotland) Act, 2000. DCPs are not currently able to complete these certificates but can carry out any treatments that are delegated in the wording of the treatment plan.

A certificate of incapacity can be issued by the dentist primarily responsible for dental treatment when they have assessed the patient and found two things.

  1. The treatment or investigation proposed would be of benefit to the patient and the patient is incapable in relation to a decision about that intervention.
  2. The certificate must be in a prescribed form and must specify how long the authority to treat is valid. The time period will be what the issuing dentist considers appropriate to the particular intervention and the particular patient.

These certificates can be written to cover single interventions or extensive treatment plans that do not extend beyond one year. However, in some circumstances a three year certificate may be in effect where the patient suffers from a condition that is unlikely to improve, such as:

  • severe or profound learning disability
  • severe dementia
  • severe neurological disorders.

Dentists are strongly advised to regularly review the capacity of patients being treated under such certificates and to review the treatment being given under the Act.

If you have not had the relevant training or are unsure about the capacity of a particular patient at any given time, you should defer treatment until a determination can be made by a suitably qualified medical professional.

Nothing in the Act precludes a doctor, dentist or DCP providing care to a patient in a medical emergency. Treatment of unconscious casualties should not be delayed to allow certificates to be completed.

Welfare attorneys

In some circumstances a patient may have appointed a welfare attorney to make decisions on their behalf, if and when they lose capacity - but because the patient has to do this before they lose capacity, this is not always possible.

The welfare attorney's power will only come into force when the adult loses capacity to make the specific decision personally. An attorney cannot compel a dental professional to provide a treatment, or order an investigation, that the dental professional does not think is of benefit to the patient. The Act sets out a process to resolve disputes between healthcare professionals and attorneys.

This page was correct at publication on 24/07/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.