15 Morningside Road, Edinburgh EH10 4DP, Tel: 0131 447 6394 or 0774 298 4459
Edinburgh - 3 June 2003 (and 26 November 2003)
Organisers: Law Society of Scotland and the British Medical Association (BMA)
SCHB participant: Dr Calum MacKellar
Session 1, Chaired by David McClements, Russel & Aitken, Denny:
Adults with Incapacity Act - Overview - David McClements, Russel & Aitken
Assessment of Incapacity - Dr. Colin Currie, Geriatrician
Session 2, Chaired by Dr. David Love, British Medical Association of Scotland:
Practical Implications - Legal and Medical - Garry Sime, Tayside Primary Care NHS Trust & Ronald Franks, Legal Services Agency
Adult / Family Perspective - Jan Killeen, Alzheimer Scotland - Action on Dementia
Is the research on people who lack capacity justified? - Dr. Jim Dyer, Formerly Director of Mental Welfare Commission and David McClements
Session 3:
Workshops/Discussion Groups with Case Studies:
Focus on potential amendments to the Act and Codes of Practice.
Panel Discussion and feedback from workshops
3 June 2003
Since the Adults with Incapacity (Scotland) Act was passed in July 2000, there have been many discussions of medical and legal issues relating to capacity which have been brought into focus by the new legislation. The aims of the conference were (1) to act as an open forum for discussion on the implementation and implications of the Act, (2) to inform future debate within the professions and (3) to inform the Scottish Executive which is currently reviewing the part of the Act relating to medical treatment.
The conference began by David McClements, a Solicitor, indicating that the Adults with Incapacity (Scotland) Act 2000 had achieved greater equality of status for the persons concerned. Over 100 000 people in Scotland suffer from some form of incapacity whether temporary, intermittent or permanent. He indicated that because the new legislation extended to 89 Sections, several Schedules, a number of Codes of Practice and numerous regulations, some time was bound to be necessary in order to allow practice to adjust.
The Act was the first major piece of legislation to be considered by the new Scottish Parliament and was accepted as necessary in view of the pre-existing inappropriate and harmful outcomes which occurred under existing law for large numbers of adults in Scotland.
In the absence of the next speaker, Mr. Adrian Ward, who was unable to be present because of sickness, the conference then heard a presentation from Dr. Colin Currie entitled ?Assessment of Incapacity?. The talk was introduced by analysing the background and the current context of the Act whereby it was indicated that some of the past contradictions had been addressed. Dr. Currie then went on to discuss the clinical aspects of incapacity which was often considered as an age-related challenge and the difficulties in assessing cognitive impairment. Here he emphasised how much the first impressions may be misleading. Finally, after underlying the importance of task-specific capacity in both the clinical and legal context he concluded by appraising the present situation.
During the question and answer session that followed, a young lawyer indicated that he was being brought before the Law Society of Scotland relating to a welfare power of attorney. Indeed, this unfortunate lawyer had provided a certificate stating that a person had understood the nature and extent of the welfare power of attorney which he was granting to someone else (see para 16 (1) (c) (ii) of the Act). However, the lawyer was now being accused by healthcare professionals of not having adequately certified that the person in question was capable of making such a decision at the time. Indeed, the doctors in charge of the patient maintained that when the power of attorney had been granted, the person had already lost the capacity to make such a decision and that the power was, therefore, invalid.
After hearing this case, the conference agreed that the lawyer should really know the person concerned before certifying that the individual understands the nature and the extent of the decision.
Finally, it was indicated that a better understanding of the Act would only be possible after some of the difficult and hard cases had gone to the courts.
Dr David Love, joint chairman of the BMA's Scottish General Practitioner Committee then explained that the BMA supported the principles contained in the Act but had concerns about the practicalities of implementation. Indeed, a number of doctors who cared for incapacitated adults had contacted the BMA and the Scottish Parliament concerning workload implications. Dr. Love stated that he would also like to see some fundamental changes made to the legislation such as extending the range of Health Care Professionals who may carry out assessment and certification of patients, extending the maximum duration of the certificate to three years and revise the definition of medical treatment.
The conference then continued with a talk on the practical implications for clinicians working within the law from Garry Sime, the Deputy Clinical Dental Director of the Tayside Primary Care NHS Trust. He indicated that the Act presented serious practical problems in its implementation in day to day clinical practice. Access to care from non-medically qualified practitioners was hindered. At the same time, an unreasonable increase in workload was imposed on medical practitioners by requiring them to provide certificates of incapacity for all types of health care interventions, whether or not these interventions were carried our under their direction. He also indicated that the Code of Practice should redefine an ?emergency? in order to allow for the urgent management of distressing but not dangerous conditions, such as pain (sever pain, on its own, is not considered as an emergency).
Following this talk, Mr Ronald Franks form the Legal Services Agency summarised the practical legal implications of the Act and indicated that, from a legal practitioner?s perspective, there were a number of concerning issues which required to be addressed. The Act had the potential to afford effective protection but still did not fulfil its true potential at present. The question of obtaining Legal Aid needed to be addressed quickly.
Jan Killeen from Alzheimer Scotland - Action on Dementia continued by specifying that the implementation of the Act was working for the benefit of incapable adults where stakeholders were well informed, have a clear understanding of the Act and were committed to it. But there were still a number of problems with respect to ensuring appropriate access to justice. It was also important that the process did not discourage those who saw the need to act on behalf of relevant adults. She suggested that it was too early to conclude whether or not the new Act was living up to the expectations of carers and adults with incapacity. This was because:
- uptake had been relatively low;
- the Act had a low profile with little public information;
- the Act had not yet been fully implemented with part 4 outstanding;
- the non-compliance with Part 5 by some doctors;
- there was a serious training deficit, particularly for solicitors and doctors; and
- there were teething problems.
The final presentation in the morning was given by Dr. Jim Dyer, Formerly Director of Mental Welfare Commission, who discussed whether research on people who lacked capacity was justified. He indicated that the new European Union Directive on Good Clinical Practice in Clinical Trials (2001/20/EC) was to be implemented by the 1st of May 2004. In this Directive, research likely to produce real and direct benefit for an adult or to contribute, through increased understanding of the incapacity, to real and direct benefit for the adult or others with same incapacity was possible. In this case, consent from a "legal representative" of the incapable person was necessary even in emergency situations. Therefore, problems arose when research was necessary in an emergency situation and when the appropriate representatives were not available.
Furthermore, the UK draft guidance resulting from the EU directive included the possibility of having a ?professional legal representative? who could be the doctor in charge of the case, a person appointed by the health care provider or even a hospital chaplain. Dr. Dyer then posed the question whether Section 51 of the AWIA would need to be amended to include these ?professional legal representatives?.
In the afternoon, Workshops/Discussion Groups on different topics were organised, after which a general discussion took place.
During the discussions it was indicated by Bill O?Neil from the BMA that certificates of incapacity from the medical practitioner primarily responsible for the medical treatment was not always required if a proxy had given consent to an intervention. However, it was specified that clarification was required concerning this point.
At this stage again, many stated that the Act was sometimes difficult to understand and that more explanations were required. Thus, the Act was still ?evolving?.
Discussion also arose concerning the meaning of the different terms used in the Act and other documents. For example, clarification was necessary when the different terms ?non-compliant?, ?unwillingness?, ?resisting an intervention?, ?non-voluntary? and ?without consent? (para 51 (3) (b)) were used.
26 November 2003
A session with Adrian Ward LL.B. took place on the 26 November 2003 to replace the seminar which he did not give on the 3 June 2003 because of ill-health.
Mr. Ward put the Adults with Incapacity (Scotland) Act 2000 into perspective indicating that it was one of the best pieces of legislation that he had seen on the subject. He also emphasised that some of the articles in the Act had not yet been implemented since the Hague Convention on the International Protection of Adults had not yet entered into force with the United Kingdom being the only country to have ratified the Convention on 5 November 2003 but for Scotland only.
He also noted that the Mental Health (Care and Treatment) (Scotland) Act 2003 would probably be coming into force in April 2005.
Concerning the Adults with Incapacity (Scotland) Act, Mr. Ward indicated that it was often the professionals most engaged with the Act who were the most enthusiastic about its content. Adding that the Act did not take away something that was already lawful before the Act came into force. Part 5 came into force on 1 July 2002.
Concerning the question whether a certificate of incapacity from a medical practitioner primarily responsible for the medical treatment was always required even if a proxy had given consent to an intervention, Mr Ward indicated that this was indeed the case and that the Code of Practice was wrong to suggest that treatment could only be given if a certificate was prepared (see for example para. 2.25 and 2.14). In this respect, he suggested returning to the principles of the Act which were stated in section 1 (4) when contradictions in the Act were suggested. Furthermore, Mr. Ward stressed that the Code of Practice should not be considered as ?Law?. Thus, the Code did not need to be followed if there was a good reason not to do so. However, if the Code of Practice was contravened repeatedly for no good reason then the person could be considered as reckless.
But on this whole matter of certificates, the Welfare Commission for Scotland did not agree (see para. 50 (1) + (2) of the Act which presupposes that a certificate should always be sought see also para 3.4 of the Code of Practice). Indeed, its representative indicated that a certificate of incapacity was always required even when consent by a proxy was given. Furthermore, this representative said that the Commission was already advising its medical praticitioners to get certificates.
Finally, Mr. Ward indicated that it was very important to determine when, exactly, a welfare power of attorney would begin.