Adults with incapacity: code of practice for medical practitioners

3. DISPUTE RESOLUTION

Key points in part 3

It is best to proceed with consensus on medical treatment matters; but consensus is not always attainable.

In the event of a dispute with a proxy, the practitioner who issued the certificate has recourse to the MWC's list of Nominated Practitioners.

Proxies have a right to be consulted by, and to choose their own nominee to be consulted by, the Nominated Practitioner.

If the Nominated Practitioner agrees with the practitioner who issued the certificate, the treatment may be given.

If the Nominated Practitioner agrees with the proxy, the practitioner who issued the certificate may appeal to the Court of Session.

The practitioner primarily responsible for the medical treatment of the adult or any other practitioner having an interest may apply to the Court of Session for a determination as to whether the treatment should be given or not.

Procedure under section 50

3.1 Section 50 of the Act (as amended) envisages that a proxy with powers which cover the proposed treatment should be given the opportunity to consent to the proposed medical treatment wherever reasonable and practicable. Where such a proxy consents, that consent is sufficient authority to proceed.

Disputes

Disagreements between proxies (or other interested parties) and practitioners

3.2 Even after discussion, proxy decision-makers will not always agree with the medical treatment proposed by the doctor in charge of the case. Others close to an adult may also disagree with the doctor and, indeed, with the opinion of the proxy. Section 50 of the Act (as amended) sets down a procedure for resolving such disagreements. This procedure applies in cases where a practitioner proposes a treatment to which the proxy or other person having an interest in the welfare of the adult objects. In cases where the proxy or another person with an interest in the welfare of the adult wishes the adult to have a particular treatment which the responsible practitioner does not consider appropriate and refuses to authorise, the proxy or the other interested person should either ask the NHS organisation for a second opinion or use the NHS Complaints procedure. The Section 50 procedure applies only in cases where a proxy decision-maker has been appointed, but it gives rights not only to the proxy, but also in certain circumstances to the practitioner responsible for the medical treatment of the adult or any person having an interest in the personal welfare of the adult. Such a person may be a close relation of the adult, or a person who has lived with, or cared for or about them, over a significant period. The term does not extend to those whose interest is that of an onlooker, such as interested pressure groups, uninvolved neighbours, or those seeking to achieve objectives which are of wider import than the welfare of the particular adult. It should be noted that, while proxies can legitimately object to particular courses of medical treatment, they may not act unreasonably by, for example, refusing fundamental care procedures. Proxy decision-makers have a duty of care to the adult on whose behalf they act, and a duty to abide by the general principles set out in section 1 of the Act.

What if delay will put the adult at risk?

3.3 Treatment in emergencies is specifically exempted from the scope of the Act. There is already a 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 is meant by "reasonable and practicable" will vary from situation to situation. It will normally be reasonable and practicable to consult relatives, proxies or carers, where these people are present or easily contactable.

Where there is no disagreement between the practitioner who issued the certificate for the purposes of section 47(1) and the proxy

3.4 Where there is no disagreement as to medical treatment between the practitioner who issued the certificate for the purposes of section 47(1) and the proxy decision-maker, medical treatment as proposed may normally be given. The exception to this is where a person having an interest in the personal welfare of the adult (as described above) is of a different opinion. In such circumstances, the Act gives such a person the right to appeal to the Court of Session on the question of medical treatment. Where an appeal is initiated, further treatment must not be given, except for the preservation of the life of the adult or the prevention of serious deterioration in his or her medical condition. It will obviously be preferable for the practitioner to take account at an early stage of the views of such persons in terms of section 1 (4) (d) of the Act, rather than have the courts involved.

Nominated Practitioners

3.5 As part of the procedure for resolving disagreements, the Act requires the Mental Welfare Commission to establish and maintain a list of practitioners. From this list, the MWC can nominate a practitioner from the appropriate specialty (the "Nominated Practitioner") to give an opinion as to medical treatment which is independent of that of the practitioner who issued the certificate for the purposes of section 47(1). "Nominated Practitioners" may include medical practitioners or dental practitioners, ophthalmic optician or registered nurses who have undergone training on the assessment of incapacity as prescribed in the Adults with Incapacity (Requirements for Signing Medical Treatment Certificates (Scotland) Regulations 2007.

Where there is disagreement between the practitioner who issued the certificate for the purposes of section 47(1) and the proxy

3.6 In situations where a disagreement arises between the practitioner and the proxy decision-maker, the practitioner must request that the Mental Welfare Commission provide a "Nominated Practitioner" to give a further opinion as to the medical treatment proposed. The Nominated Practitioner must, in such circumstances, have regard to all the circumstances of the case and must consult the proxy about it. The Nominated Practitioner must also consult any other person nominated by the proxy, if it is reasonable and practicable to do so. Such a person may be the GP of the adult, a consultant in a relevant speciality, or a relative, a carer, an independent advocate or someone else who knows the adult well.

Where the Nominated Practitioner agrees with the practitioner who issued the certificate for the purposes of section 47(1)

3.7 If, after taking these steps, the Nominated Practitioner certifies an opinion that the proposed medical treatment should be given, then the practitioner who issued the certificate for the purposes of section 47(1) may give the treatment in spite of the disagreement with the proxy, unless an application to the Court of Session is initiated. The opinion of the Nominated Practitioner in such circumstances must be confirmed in writing in the patient's medical notes.

Where the Nominated Practitioner does not agree with the practitioner who issued the certificate for the purposes of section 47(1)

3.8 Where the Nominated Practitioner does not agree with the practitioner who issued the certificate for the purposes of section 47(1), that person may ask the Court of Session to determine whether the proposed treatment should be given or not. The same right to apply to the Court is also extended to any person having an interest in the personal welfare of the adult (as described above). In such a case, further treatment must not be given, except for the preservation of the life of the adult or the prevention of serious deterioration in his or her medical condition.

The need for full and careful discussion and documentation

3.9 It will be seen from the foregoing paragraphs that the Act requires detailed consultation with proxies and, if necessary, with the Nominated Practitioner. It is the responsibility of the practitioner who issued the certificate for the purposes of section 47(1) to ensure that such consultation is carried out and fully documented. The Nominated Practitioner has an additional duty to consult a person nominated by the proxy, if reasonable or practicable, and should ensure that an agreed record of such consultation is kept with the patient's medical notes. It will be necessary, in terms of section 1 of the Act for the practitioner who issued the certificate for the purposes of section 47(1) and the Nominated Practitioner to consult relatives or carers who express a desire to be consulted. Consideration and discussion of such opinions at this stage are likely to reduce the chances of lengthy and costly court action at a later stage.

Where an action is taken to the Court of Session

3.10 Where action in the Court of Session is initiated by the practitioner who issued the certificate for the purposes of section 47(1) or by any person having an interest in the personal welfare of the adult, there is no authority to treat until the Court of Session has determined the matter. The only exception to this is the common-law authority to give emergency treatment, that is, treatment for preservation of life or prevention of serious deterioration in the patient's condition. Such emergency treatment can be given, so long as there is no interdict in force prohibiting the giving of such medical treatment.

Appeals on decisions as to medical treatment

3.11 All decisions taken on medical treatment under Part 5 of the Act are open to appeal to the courts. Section 52 of the Act establishes a comprehensive appeals procedure which may be used by any person having an interest in the personal welfare of an adult with incapacity. Appeals may be heard by the sheriff, and may be taken further, by leave of the sheriff, to the Court of Session. It is important to note that this section extends to all provisions for medical treatment under Part 5 - with the exception of decisions made by doctors under section 50 (as amended), which are appealed direct to the Court of Session. The process of appeal will of course be made easier if practitioners and others making decisions under Part 5 have recorded their decisions and, where relevant, the reasons for those decisions at the time they are made.

3.12 Section 14 of the Act allows a decision taken by a person as to the incapacity of an adult to be appealed by the adult. It may also be appealed by any person claiming an interest in the adult's personal welfare for the purposes of Part 5 of the Act.

What if the court decision conflicts with the principles of the practitioner who issued the certificate for the purposes of section 47(1)

3.13 The great majority of decisions on treatment under Part 5 of the Act are likely to be resolved with no difference of opinion between the doctor and proxy decision-maker. Only a very small number of cases are likely to go to court for decision. Having heard the evidence, the court will be able to make a ruling on whether or not a patient should have a particular course of treatment. Courts will not be able to instruct a particular practitioner to give a certain type of treatment against his or her principles - merely to instruct that the patient should receive that form of treatment.