Adults with Incapacity Amendment Act: consultation

Part 5: Authority to Medically Treat Adults With Incapacity

Part 5 of the AWI Act gives authority to treat a person who is incapable of consenting to medical treatment to safeguard or promote their physical or mental health.

Section 47 of the AWI Act allows the medical practitioner (or other specified healthcare professional) who is primarily responsible for the adult's treatment to complete a certificate certifying that in their opinion the adult is incapable of making a decision on the medical treatment in question. Once the medical practitioner or healthcare professional complies with the certification requirements set out in section 47, they then have a general authority to do what is reasonable in the circumstances in relation to medical treatment to safeguard or promote the physical or mental health of the adult.

The certificate provides authority to give treatment but has no specific provision on conveying a patient to hospital. The Commission’s report in 2014^[43] on Adults with Incapacity had noted that there were concerns whether there was sufficient authority to transport persons to hospital where they lack capacity to agree to that action (paragraph 4.9). However they concluded that conveying a person to hospital could normally be justified under the common law principle of necessity in an emergency and may otherwise be authorised by the fact that a certificate under section 47 gives “authority to do what is reasonable in the circumstances, in relation to the medical treatment in question, to safeguard or promote the physical or mental health of the adult”. This could include taking someone to hospital to receive treatment. But conveying someone to hospital for non-urgent care would require an existing s.47 certificate to be in place.

The SMHLR considered the issue of conveying a person to hospital to receive treatment for a physical condition and its views are noted below:

“We generally support as much alignment as possible between mental health and capacity law as possible. However, in relation to conveying people to hospital for treatment for a physical condition, we are not persuaded that the Mental Health Act model can be directly transposed. In many situations it may be GPs, community nurses or paramedics who have to decide, often in a situation of great urgency, whether a person should be admitted to hospital, even if they are too unwell to agree or may be resisting admission.

We propose an adapted s.47 certificate should be used to grant authority to convey a person who appears to be unable to consent to admission. This would record the reasons the person was felt to be unable to consent, why admission was felt to be necessary, and what attempt was made to ascertain the will and preferences of the adult. It would also be important to identify whether the person was simply unable to agree, or actively unwilling to go to hospital. In the latter case in particular, the adult should be supported to challenge their remaining in hospital, if they continue to be unwilling to say. We do not suggest that this would be necessary in cases where a person was unconscious, and there was no indication of any reluctance to be admitted to hospital “

The Scottish Government agrees with the SMHLR that an adapted section 47 certificate should be created to grant authority to convey a person who appears to be unable to consent to admission to hospital. This is for the purpose of receiving physical treatment or diagnostic tests where the adult is unable to make an autonomous decision.

Common law allows medical treatment to be given in an emergency to patients who cannot consent. Under the “principle of necessity” treatment can be given in order to preserve life or for the prevention of serious deterioration in the adult’s medical condition. This would cover adults who are unconscious for a short time when they arrive at Accident and Emergency unit.

This process is not intended to replace that but to capture those adults that are incapacitated under the AWI Act. Where it is clear that a patient falls under the definition of “incapable” either by reason of mental disorder or of physical disability causing inability to communicate that can’t be aided, this process is to be used to convey the patient to hospital and keep them safe in hospital whilst receiving treatment for medical treatment or undergoing tests.

We therefore propose to introduce a new adapted section 47 certificate that would expressly allow a person to be conveyed to hospital and ensure that this process is authorised in law. We agree with the SMHLR that in relation to conveying people to hospital the Mental Health model cannot be directly transposed. The circumstances are different and require a different approach. We suggest:

• Suitable professionals such as GPs, paramedics and community nurses would grant the authority to convey an adult to hospital who could not make an autonomous decision. They are the ones who are most likely to be in contact with the adult when they need admission to hospital.
• The process for authorisation would also involve recording the reasons why the adult should be admitted to hospital for, such as for physical treatment (including needing diagnostic tests), for example and would need to be conveyed to hospital.
• There would be a section in the section 47 certificate where the reasons why the adult was unable to consent would be recorded.
• An important part of this would be recording whether they were unable to agree or actively unwilling to go to hospital.
• Part of the assessment process would involve recording on the section 47 certificate what attempts were made to ascertain the will and preferences of the adult.
• Where practicable, any attorney or guardian including family members should be consulted.
• If the adult still contests their stay in hospital after they have arrived, they should be supported to appeal this.
• There will be a review and renewal of the certificate after 28 days and a limit on this so that the adult does not remain in hospital indefinitely.

Questions

36. Do you agree that the existing section 47 certificate should be adapted to allow for the removal of an adult to hospital for the treatment of a physical illness or diagnostic test where they appear to be unable to consent to admission?

37. Do you consider anyone other than GPs, community nurses and paramedics being able to authorise a person to be conveyed to hospital? If so, who?

38. Do you agree that if the adult contests their stay after arriving in hospital that they should be assisted to appeal this?

39. Who could be responsible for assisting the adult in appealing this in hospital?

An enhanced section 47 certificate to prevent a person being treated for a physical condition from leaving hospital, whether temporarily or permanently.

Currently Scots law provides no specific process to authorise measures to prevent a person being treated in hospital for a physical condition from leaving. This gap was identified in the Commission’s report on Adults with Incapacity in 2014. In the previous Scottish Government consultation in 2018 ^[44]AWI proposals for reform there was agreement that an enhanced section 47 certificate process should be developed to provide clarity in this area of law.

The SMHLR considered this as follows:

“In relation to being required to remain in hospital, there was agreement that this is a significant gap in the law which must be closed. It was generally agreed that, where the person is unable to make an autonomous decision to remain in hospital, and there is no-one else who can consent on their behalf, it would be disproportionate to require a DOL order to be sought from a court. But there need to be safeguards against people being made to stay in hospital, potentially against their will, without access to proper review.

There also appears to have been broad support for broadening the section 47 certificate, although there were differing views about whether the 28 day period was appropriate.”

We agree with SMHLR that there is a significant gap in the law that needs to be remedied given the lack of a specific process to authorise measures to prevent a person being treated for a physical condition from leaving hospital, whether temporarily or permanently.

We are proposing that an additional process is required to enable authorisation of any necessary measures to prevent an adult with incapacity from going out of a hospital unaccompanied and that this process should be connected to the process of authorising medical treatment.

Under section 47(4) of the AWI Act the meaning of “medical treatment” is broad enough to include diagnostic tests and procedures. When it is clear that the patient is incapable either by reason of mental disorder or due to a physical disability meaning they cannot communicate and that this can’t be aided, then a process should be used to keep the patient safe whilst undertaking medical treatment in hospital.

Responsibility for certifying that an adult lacks capacity to decide whether or not to stay in hospital should rest with the medical practitioner primarily responsible for the treatment or assessment of the patient. This mirrors the formulation in section 47 of the AWI Act but is more limited than who can grant a section 47 certificate generally. The authority to provide medical treatment under Part 5 does allow for dental treatment and treatment by an ophthalmic optician but we don’t propose to introduce these measures for dental treatment or treatment by ophthalmic optician. We consider it is appropriate to limit the above decision as to capacity to the medical practitioner primarily responsible for that person’s care because in practice a hospital is the place where measures to prevent a patient from going out are most likely to be needed.

We propose the following new measures:

• The lead clinician responsible for authorising the medical treatment or assessment can authorise measures to prevent the adult from leaving the hospital whilst these are undergoing. The lead clinician would record their reasons for this in the enhanced certificate. This could be the consultant to whom a patient is assigned but also any medical practitioner who is for the time being responsible for the treatment of the adult.
• We propose that the lead clinician consults with the patient’s family and guardian and attorney wherever it is practicable and reasonable in the circumstances. This is in line with principle 4 of the AWI Act (consultation with relevant others) and similar to section 50 of the AWI Act whereby the medical practitioner has to seek consent to the proposed medical treatment.
• Once consent is provided the patient will be prevented from leaving hospital until the medical treatment or assessments have been concluded and measures are required to keep them safe for physical health reasons.
• A review process of the measures authorising placement in hospital would be embedded in and the clinician in charge of the treatment or assessment would be responsible for setting the time-scale for this.
• As part of the review process, the clinician would need to consider when treatment or assessment is likely to come to an end. Capacity can also fluctuate whilst staying in hospital so the clinician will have a duty to review whether the patient lacks capacity.
• Any guardian or attorney must be consulted during the review process and the measures must be taken to support the patient through this.
• We also propose that the lead clinician can revoke the certificate if the patient recovers and it is no longer necessary.
• We propose a review interval of 28 days. The review process will consider factors set out above and part of this review will involve the clinician applying the general principles of the AWI Act as set out in section 1. The clinician must ensure that measures must likely benefit the adult and the potential benefit cannot be achieved without treatment. The measures must be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the treatment. Restriction measures can only be renewed up to 3 months before it then needs to be considered by Sheriff court.
• An attorney or guardian , family member, or any person with an interest in the adult’s welfare can appeal the treatment and restriction measures at any time and make an application to the Sheriff court. We suggest that there is assistance provided to ensure that the adult can appeal the decision to the Sheriff court in line with the requirements of articles 5 and 6 of the ECHR and article 13 of UNCRPD. To ensure that the right of appeal is effective the individual must be practically and actively assisted in the appeal process and allowed equity of access to the court.
• Once the medical treatment or assessment has been completed then it’s important that the lead clinician sets an end date. The purpose of this is to lift the restriction measures and allow consideration of moving the patient to alternative more suitable accommodation. This would ensure mechanisms are put in place with the aim that when the patient is well enough that discharge is facilitated appropriately so they don’t remain in hospital longer than necessary. The new guardianship process can be utilised if necessary at this stage including the use of new interim order discussed in this consultation.

Questions

40. Do you agree that the lead medical practitioner responsible for authorising the section 47 certificate can also then authorise measures to prevent the adult from leaving the hospital?

41. Do you think the certificate should provide for an end date which allows an adult to leave the hospital after treatment for a physical illness has ended?

42. Do you think that there should be a second medical practitioner (i.e. one that has not certified the section 47 certificate treatment) authorising the measures to prevent an adult from leaving the hospital?

43. If yes, should they only be involved if relevant others such as family, guardian or attorney dispute the placement in hospital?

44. Do you agree that there should be a review process after 28 days to ensure that the patient still needs to be made subject to the restriction measures under the new provisions?

45. Do you agree that the lead clinician can only authorise renewal after review up to maximum of 3 months before Sheriff Court needs to be involved in review of the detention?

46. What sort of support should be provided to enable the adult to appeal treatment and restriction measures?

Clarifying the provision of palliative care under Part 5 of the AWI Act where a welfare proxy disagrees with proposed treatment.

What the law says

Section 50 of the AWI Act currently sets out how to manage a situation where a guardian or welfare attorney or person appointed under an intervention order has power in relation to medical treatment, and where disagreement arises about the desirability of treatment.

Section 50(2)(c) of the AWI Act provides that if there are individuals with ‘welfare proxy’ over an adult with incapacity, when a section 47 certificate is granted, the healthcare practitioner administering medical treatment must, where it is reasonable and practicable to do so, obtain the consent of the individual with welfare proxy.

There can be situations where the welfare proxy disagrees with medical treatment plans for an adult with incapacity and may withhold their consent to those plans. In these situations, where the healthcare practitioner has consulted the welfare proxy and they have a disagreement, the healthcare practitioner may seek resolution under section 50(4) of the AWI Act. This allows the healthcare practitioner to request the MWC to nominate another healthcare practitioner who the MWC considers has the relevant professional knowledge of the medical treatment in question to give a second opinion.

Section 50(5) provides that where the nominated healthcare practitioner certifies that having regard to all circumstances and consulting the welfare proxy, the proposed medical treatment should be given then treatment of the incapacitated adult can take place. Then the practitioner with the section 47(1) certificate may give or authorise treatment notwithstanding the disagreement with the welfare proxy.

Section 50(6) allows an appeal by the medical practitioner primarily responsible for the medical treatment of the adult or any person having an interest in the welfare of the adult against the nominated practitioner’s decision that the treatment should or should not be given. This appeal is to the Court of Session.

The only situation where medical treatment authorised by section 47(2) may be given where an appeal has been made to the Court of Session and has not been determined, is where it is authorised by any other enactment or rule of law for the preservation of the life of the adult or the prevention of serious deterioration in an individual’s medical condition. It should be noted that the scope of medical treatment authorised by section 47(2) is defined to mean any procedure or treatment designed to safeguard or promote physical or mental health. However, if a dispute over treatment is appealed to the Court of Session, where that treatment would amount to something less than a life-saving measure or the prevention of serious deterioration of someone’s medical condition, it must not be given.

Section 50(7) therefore provides that giving medical treatment in the case of serious deterioration of health or the preservation of life is possible within the confines of the Act. If an interdict is handed down to stop the treatment, that right to treat would be removed immediately (section 50(8)).

The Adults with Incapacity Code of Practice for Medical Practitioners^[45] states at paragraph 2.41 ”The division between cases where treatment is necessary for the preservation of life or to prevent serious deterioration, urgent cases, a necessity to treat and routine matters is not always clear-cut. What underlies the concepts of emergency and necessity is the issue of immediacy. The definition of emergency will vary slightly from specialty to specialty.”

Paragraph 3.3 of the Code of Practice for Medical Practitioners says “Treatment in emergencies is specifically exempted from the scope of the Act. There is already common-law authority for a practitioner to treat a patient for the preservation of the life of the adult or the prevention of serious deterioration in his or her medical condition. There should be no question, therefore, of consultation putting a patient’s life at risk.”

What we are proposing

There can be circumstances where the giving of medication for the purpose of alleviating serious suffering on the part of the patient could also prevent serious deterioration in their medical condition. However, alleviation of serious suffering is not itself stated in the legislation or code of practice as a purpose for which treatment could be given while section 50 dispute resolution procedures are ongoing.

The Mental Health Act (Care and treatment) (Scotland) Act 2003^[46] allows urgent medical treatment to be given to a patient detained in hospital without a second medical opinion (if that would otherwise be needed) for reasons that include any of:

• saving the patient’s life
• preventing serious deterioration in the patient’s condition
• alleviating serious suffering on the part of the patient

The Scottish Government believe that in a section 50 dispute resolution, the treating doctor should be able to give medical treatment that is necessary to alleviate serious suffering on the part of the patient (so long as there is no interdict in force). There is no mention of alleviation of serious suffering in the AWI Act Code of Practice for medical practitioners.

These changes would provide clarity for medical practitioners and relatives and medical staff when there is a dispute resolution situation, and they are providing treatment to the patient nearing the end of their life. This would require statutory changes to section 50(7) to reflect new policy intent rather than amending the code of practice for medical practitioners and make the AWI Act clearer on this matter.

Questions

47. Do you agree that section 50(7) should be amended to allow treatment to alleviate serious suffering on the part of the patient?

48. Would this provide clarity in the legislation for medical practitioners?

Use of force or detention

Section 47(7) of the AWI Act states that the authority given for treatment does not authorise the use of force or detention, unless it is immediately necessary, and only for so long as it is necessary in the circumstances.

The SMHLR considered this in chapter 13 of their final report. They gathered views from a number of respondents, the vast majority of whom said that there needed to be a tightening of the legislation and the practice. The MWC, the Royal College of Psychiatrists and the Scottish Human Rights Commission all expressed concern that the current provision was lacking in clarity and safeguards.

We agree with this and consider it necessary to provide for a scheme to set out where force or covert medication may be permitted. This requires further, detailed consideration so we are proposing that the AWI Act be amended to give Ministers the powers to by regulations create a scheme of authorisation for these actions. This will enable us to consult specifically on this issue in more detail prior to legislation. We will take forward work on this over the summer, and invite anyone who is interested in being involved in this to contact us at awireform.queries@gov.scot

We consider that the question of detention is dealt with by our proposals for an enhanced s47 certificate, hence the focus on force and covert medication in this section.

Exceptions to authority to treat

Section 48 of the AWI Act gives Scottish Ministers the power to specify by regulations, those medical treatments, or classes of medical treatments, which are not covered by a section 47 certificate.

Again the SMHLR considered this section, and noted concern that the treatments, and safeguards are different between the AWI Act and the 2003 Act. In principle the SMHLR were of the view that the same treatments should receive the same safeguards.

We agree with this, and will consult separately on how the current regulations may be amended to reflect the treatments and safeguards set out in the 2003 Act . This work will be taken forward over the summer months and again invite anyone interested in being involved in this to contact us at awireform.queries@gov.scot