Incapacity and the law in Scotland

Such cases can be challenging so it is important that dental professionals are fully informed of how the law applies to their practice and what may be required of them.

This article looks at the two key pieces of legislation in this area, the Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007.

Adults with Incapacity (Scotland) Act 2000

This Act was one of the first pieces of legislation brought forward by the (then) Scottish Executive after devolution.

It aims to safeguard the welfare and finances of adults who lack capacity. Welfare issues cover not only financial and property matters but healthcare issues including medical treatment decisions. It applies to all people aged 16 and over who lack capacity to make some or all decisions for themselves due to either a communication problem or a mental disorder.

The most important section of the Act for our members is Part V which came into effect in July 2002 and covers medical treatment and research. A revised code of practice for this part of the Act was issued by the Scottish Government in March 2008 and is available from its website.

The Act does not deal with advance directives which remain covered by the common law.

The principles of the Act remain as follows:

  • Any intervention must be of benefit to the adult
  • It must be the least restrictive option
  • The benefit cannot reasonably be achieved without the intervention
  • The adults' past and present wishes should be taken into account
  • The views of the primary carer, nearest relative and people appointed under the Act (including attorneys) must be taken into account

Welfare attorneys

A competent adult can grant authority to a nominated person to make healthcare decisions on their behalf when that adult is deemed to lack capacity to do so in person. The nominated person is called a welfare attorney. 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 dentist to provide a treatment, or order an investigation, that the dentist does not think is of benefit to the patient. The Act sets out a process to resolve disputes between healthcare professionals and attorneys.

Certificates

To treat an adult under the Act, the person primarily responsible for treatment has to reach the decision that an adult is incapable (as defined in the Act) and complete the appropriate certificate. Although this originally applied only to doctors, an amendment to section 47 (1) of the Act, extended the authority to dental practitioners and certain other health professionals provided they have successfully completed relevant training in the assessment of incapacity. A certificate issued by a dentist will only be valid within their area of practice.

A certificate of incapacity can be issued by the dentist primarily responsible for dental treatment when that dentist has 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 one the issuing dentist considers appropriate to the particular intervention and the particular patient.

Once properly completed there is a legal general authority to treat or investigate the patient as documented.

The certificate should not normally be for more than one year but can be for up to three years in certain circumstances.

A certificate for three years would not be appropriate where a recovery is expected or where capacity fluctuates. A three-year certificate would only be appropriate where the dentist believed the patient to be suffering one of the following:

  • Severe or profound learning disability
  • Severe dementia
  • Severe neurological disorder

And where these make the patient incapable of decisions about dental treatment, are unlikely to resolve and where there is no curative treatment.

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.

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

Treatment Plans

It would be unwieldy and impractical to issue a certificate for each and every healthcare and nursing intervention in some patients. For multiple healthcare interventions a Treatment Plan can be drafted. The Code of Practice contains an example at Annex 5. The treatment plan could outline the healthcare interventions that can be foreseen over the time specified in the certificate of incapacity and may be attached to the certificate of incapacity and held in the adult's case record. The treatment plan could contain a list of interventions along with a judgement from the dentist regarding the adult's capacity to consent to these interventions.

For example, a suitably trained dentist may assess the patient, decide on the level of capacity to consent, draw up a treatment plan for a hygienist and / or therapist which stipulated that the patient had the capacity to consent to scaling and polishing of teeth but lacked capacity to consent to fillings. The therapist would then have to obtain consent each time he or she proposed to scale the patients teeth but would not need to obtain consent to carry out any fillings which had been planned by the dentist.

The exact content of the treatment plan will be negotiable.

Adult Support and Protection (Scotland) Act 2007

This Act is concerned with the protection of adults "at risk of harm". These are defined as adults who are unable to safeguard their own wellbeing, property, rights or other interests; are at risk of harm; and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.

The duty falls on local Councils to make enquiries where it seems such an adult is at risk. Bodies, including the Health Boards, must co-operate with such inquiries by the Council.
If such an adult is visited by a Council officer and there is an accompanying doctor, there may be a private medical examination but the adult must be made aware of their right to refuse an examination.

Section 10 of the Act is of relevance to DDU members. It states that: A council officer may require any person holding health, financial or other records relating to an individual whom the officer knows or believes to be an adult at risk to give the records, or copies of them, to the officer.

"Health records" are records relating to an individual's physical or mental health which have been made by or on behalf of a health professional in connection with the care of the individual.

There are certain requirements to be met and any members facing such a request for records should contact our advisory team for support and advice.

This guidance was correct at publication 21/01/2010. It 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.

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